PA Employer Establishes Worker’s Loss of Earnings Claim by Creating Special Job That Paid Less

Where a workers’ compensation benefits claimant initially returned to work in a modified-duty position at no loss of wages and subsequently accepted a permanent light-duty position that the employer had specially created for her, which did result in lower wages, she suffered a loss of earnings and was entitled to partial disability benefits under § 306(b) of the Pennsylvania Workers’ Compensation Act, 77 Pa. Stat. Ann. § 512 [Holy Redeemer Health Sys. v. Workers’ Comp. Appeal Bd. (Lux), 2017 Pa. Commw. LEXIS 315 (June 6, 2017].

The Commonwealth Court distinguished the instant case from an earlier decision in which the Court had held a claimant’s loss of wages was not the result of claimant’s physical limitations from the work-related injury, but rather that earlier claimant’s voluntary decision to bid out of his pre-injury department where he had been working in a modified-duty position with no loss of earnings. Here, said the Commonwealth Court, the injured worker had not sought out and did not apply for the new permanent position. Rather, Employer specifically created the position and offered it to her.

Background

Claimant, who worked for the employer as a telemetry R.N., sustained a back injury while attending to a patient. She did not have any time off work following the work-related injury. Rather, Claimant returned to a modified-duty position with the employer in her pre-injury telemetry unit with no loss of wages. A bit later, she also began to assist co-employees in the employer’s care management department. The employer then created a new position in that department, which Claimant accepted voluntarily. Some time later, Claimant sought loss of earnings benefits, which the employer controverted.

The WCJ found that Claimant met her burden of proving that her work-related injury caused her to be unable to perform her time of injury job as a telemetry R.N. and that she began to suffer a loss of earning power due to the ongoing symptoms from the injury, causing her to take the position that had been specially created for her. The WCJ also found that the employer failed to meet its burden of proving that Claimant had fully recovered from her work-related injury. The Board affirmed.

The employer contended that Claimant could not have sustained her burden of proof because the unrebutted proof showed that Claimant was capable of performing the light-duty position as a telemetry R.N. made available to her by the employer. The employer contended any loss of earnings was caused by Claimant’s voluntary decision to leave that position and take the lower paying new position in the care management department.

Shenango v. WCAB

The employer relied upon Shenago v. Workmen’s Compensation Appeal Board (Weber), 166 Pa. Commw. 348, 646 A.2d 669 (Pa. Cmwlth. 1994), wherein the Court held that the claimant’s loss of wages was not the result of his physical limitations from his work-related injury, but rather the claimant’s voluntary decision to bid out of his pre-injury department where he had been working in a modified-duty position with no loss of earnings. The employer argued that the instant case was similar to Shenango because Claimant, like the claimant in Shenango, remained capable of performing work made available in her pre-injury department and presented no evidence suggesting that she was required to take the job in the care management department.

Commonwealth Court Distinguishes Shenango

The Commonwealth court initially noted that a claimant whose earning power is not affected by her work-related injury is not entitled to partial disability benefits, even though her earnings may be less than her pre-injury earnings. The Court continued:

Shenango, however, is distinguishable from the facts of this case for one very important reason: the claimant in Shenango made the affirmative decision to bid out of his pre-injury department on a position that resulted in a loss of his seniority and a loss of wages.

2017 Pa. Commw. LEXIS 315.

The Court indicated that here, Claimant did not seek out and apply for the permanent care management position. Rather, the employer specifically created the position and offered it to Claimant. The Court said it could not extend Shenango to these circumstances.

Employer Had Two Choices

The Court said the employer had two choices. First, it could have kept Claimant in her modified-duty telemetry R.N. position with some care management duties at no loss of earnings. Second, it could have placed Claimant into the permanent care management position and treated such position as a modified-duty workers’ compensation position, thereby entitling Claimant to partial disability benefits until her work-related injury was no longer the cause of her disability. The Court added:

We simply cannot permit employers to evade the payment of pre-injury wages or partial disability benefits by creating and offering permanent, lower-paying positions to claimants that are within the restrictions imposed by the claimants’ work-related injuries.

2017 Pa. Commw. LEXIS 315.

Is This a Difference Without a Distinction?

While I fully agree with the rationale offered by the court, is that truly any significant difference between the Shenango case and this one? That is to say, in the instant case, Claimant’s decision to take the lower-paying job was voluntary. Yes, it was within her physical limitations, but nothing in the Court’s decision indicates that Claimant was compelled to leave her higher-paying, modified-work position to take the newly created job. In fact, part of the opinion notes that a primary motivation was Claimant’s assessment that, after changing jobs, she began to lose some of her skills in nursing and wanted to return to that environment. In other words, she wasn’t so much displeased that the new position paid less as she was of the mind that she should return to active nursing.

My opinion doesn’t count in Pennsylvania, of course. So perhaps the practice point here is that Pennsylvania employers should be extremely careful in creating new positions that suit the physical limitations of the injured worker.

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One Response to PA Employer Establishes Worker’s Loss of Earnings Claim by Creating Special Job That Paid Less

  1. Dave Torrey says:

    Actually, the Larson treatise has been formally recognized as a secondary source of authority which may be looked to in Pennsylvania workers’ compensation cases. Grill v. WCAB (U.S. Airways), 151 A.3d 697 (Pa. Commw. 2016) (the Larson treatise: “a secondary source that our Supreme Court has repeatedly consulted in assessing workers’ compensation issues.”). Thus, what Mr. Robinson may deem fit as critique or other commentary to be included in the Larson treatise DOES “count!”

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