Payment of Wages After Injury Deemed Acceptance in PA Workers’ Comp; Reinstatement Proper Rather Than Claim

Often in a PA workers’ compensation case, the burden of proof is a critical issue. For example, the burden of proof faced by an injured worker in litigation of a Claim Petition is very different from that in a Reinstatement Petition. Unfortunately, however, there are times when an injured worker can win the battle (and have an appellate court agree an incorrect burden was placed) but lose the war (the appellate court then finding the injured worker still loses).

Such was the situation in Furnari v. Workers’ Compensation Appeal Board (Temple Inland). Here, the injured worker tore a tendon in his knee while doing his job, and required surgery on the knee. The workers’ compensation insurance carrier issued a medical-only Notice of Compensation Payable [NCP] (accepting the injury, but not disability), but the employer continued to pay the injured worker his regular salary (salary continuation). The injured worker then went back to a modified duty job for about five months before resigning.

Subsequently, the injured worker filed a Petition for Reinstatement, seeking ongoing workers’ compensation benefits. This was amended by the injured worker during the litigation to include a Claim Petition. The Workers’ Compensation Judge (WCJ) found that the combination of the medical-only NCP and the payment of salary continuation acted as if there was a full NCP, so the proper burden of proof was only that of a Petition for Reinstatement. The injured worker need only show that his loss in earnings was related to his injury. Unfortunately for the injured worker, the WCJ ultimately concluded that the injured worker failed to show that his injury worsened or that he was not capable of the modified duty job that remained available to him. As such, the Reinstatement Petition was denied.

On appeal, the Workers’ Compensation Appeal Board (WCAB) found that the WCJ applied the incorrect burden of proof. The WCAB felt that the payment of salary continuation did not transform the medical-only NCP or add any additional liability. If the injured worker wanted to obtain disability benefits for his injury, said the WCAB, he must meet the burden of proof of a Claim Petition. However, the WCAB then added that since the injured worker would have failed to meet either burden of proof in this case, the WCJ committed harmless error, so the decision was affirmed.

The Commonwealth Court of Pennsylvania, conversely, agreed with the WCJ. Where there has been: 1) Acceptance of an injury (by NCP or decision) AND, 2) Compensation for loss of earning power caused by the injury (here the salary continuation), the proper burden of proof is that of a Reinstatement Petition. As with the WCAB, though, the Court found that the injured worker failed to meet either burden of proof, so in the end, the Petition was properly denied.

Of interest, the Court also dismissed the next argument raised by the injured worker, that wage loss benefits could not be stopped without a Supplemental Agreement or an Order by a WCJ, so he actually had no burden to meet. This seems to be a far closer call than given by the Court. Indeed, the Court casually dismisses the argument, saying the WCJ has the power to order a suspension of benefits (based on the return to work) without a formal petition. We find it ironic that so much time was spent talking about the burden of proof faced by an injured worker to reinstate or obtain benefits, but the fact an employer actually faces a burden of proof to obtain a suspension of benefits was seemingly disregarded.

We keep reminding ourselves that appellate courts in PA consistently refer to the Pennsylvania Workers’ Compensation Act as “remedial legislation,” designed to be “liberally construed” to the benefit of the injured worker. Sometimes those words seem to ring rather hollowly.

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