Reinstatement of Workers’ Comp Benefits in PA May Require Change in Condition

Once workers’ compensation benefits are suspended in Pennsylvania, for example when an injured worker goes back some type of gainful employment, the general rule is that workers’ comp benefits can be reinstated by simply proving his or her earning power is again adversely affected by the injury, and that the new disability is related to the original injury. As a general rule, the injured worker need not demonstrate that there has been a change in his or her condition.

This gets a bit more complicated when there is another condition impacting the employability of an injured worker. For instance, take the matter of Upper Darby Township v. Workers’ Compensation Appeal Board (Nicastro), decided by the Commonwealth Court of PA. Here, the claimant injured his low back at work in 2002 dumping a can into the garbage truck. A Notice of Temporary Compensation Payable (TNCP) was issued, accepting a low back strain. The TNCP subsequently converted to a regular Notice of Compensation Payable (NCP).

The claimant returned to his regular duties in March, 2004, and workers’ comp benefits were suspended. On June 8, 2004, claimant again injured his low back lifting a trash can. A Petition was filed, but before there could be a decision by a Workers’ Compensation Judge (WCJ), the parties resolved the case by Stipulation. Specifically, in the Stipulation the parties agreed that claimant was disabled by the work injury from June 8, 2004 until October 7, 2004, that claimant was able to go back to his regular job as of October 7, 2004 and that claimant left the employ of the company in December, 2004, because of “injuries unrelated to his back.”

In January, 2008, claimant filed a Petition for Reinstatement, contending that his work injury was again adversely affecting his ability to work. Claimant testified before the WCJ that he continued to work at his regular duty job until December 5, 2004, when he was terminated for excessive absenteeism. Since that time, Claimant testified that he felt capable of performing his regular job. There were no subsequent injuries or incidents that changed his condition since December, 2004.

Claimant presented the medical opinion of the doctor who began treating him on November 1, 2006. The doctor testified that claimant was not capable of performing his pre-injury job, and that this opinion was based on the fact that claimant tried to go back to his regular job and failed.

The WCJ found claimant and his doctor credible and granted the Reinstatement Petition. To avoid a conflict with the Stipulation, and to attempt to make the testimony of the medical expert consistent, the WCJ granted the Reinstatement as of November 1, 2006, the date the medical expert first saw claimant. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal to the Commonwealth Court of PA, however, this decision was reversed. Since the Stipulation stated that claimant was not able to work due to some (unstated) condition unrelated to the work injury, he faced a different burden for a Reinstatement to be successful. When there is both a work injury, and a non-work injury, present, the Court found, “The claimant must show that the non-work injury is no longer disabling and that the work injury is now causing the loss of earning power.” This requires a showing that there has been a change in the condition.

The evidence found credible by the WCJ, said the Court, contradicts the previous Stipulation. This makes the medical opinion incompetent, which cannot then successfully support a reinstatement of benefits. First, the Court observed that the opinion of the medical expert, that claimant cannot do his regular job, is directly contradicted by the testimony of the claimant. Second, the opinion of the medical expert was based on the fact that claimant tried to go back to the regular duties and could not do them; this conclusion is inconsistent with the facts stated in the Stipulation. Essentially, since the claimant failed to prove that there was a change in condition, or circumstances, after the Stipulation was approved means the Reinstatement Petition must fail.