PA Injured Worker's Decision to Become Stay-at-Home Dad Proves to be Expensive

A Pennsylvania appellate court held that where an injured worker resigned from his modified-duty position in order that he could be a “stay-at-home” dad, in part due to his injury, and in part due to the economics of his personal situation, the former employer was not required to present evidence of available work within the claimant’s restrictions or expert testimony regarding the claimant’s earning power. Accordingly, it was error for the state’s Board to reverse a WCJ’s decision suspending the claimant’s wage loss benefits [Respironics v. Workers’ Comp. Appeal Bd. (Mika), 2020 Pa. Commw. LEXIS 401 (May 22, 2020).

Background

Claimant sustained a work-related injury in June 2015. After multiple hearings, a WCJ granted Claimant’s Claim Petition, but the WCJ suspended Claimant’s workers’ compensation benefits as of August 3, 2015, because Claimant resigned from his modified-duty position for reasons unrelated to his injury. The WCJ also found that Claimant was entitled to wage loss benefits as of August 11, 2016, but suspended them as of September 1, 2017, because Claimant did not meet his burden of proving that his work injury forced him out of the entire labor market. The Board reversed the WCJ’s decision suspending Claimant’s wage loss benefits as of September 1, 2017, and affirmed the WCJ’s decision in all other respects. The employer appealed.

Employer’s Contentions

The employer argued in relevant part that the Board erred by reversing the WCJ’s decision suspending Claimant’s wage loss benefits as of September 1, 2017, because the WCJ’s finding that Claimant removed himself from the workforce was supported by the record facts.

Commonwealth Court’s Decision

The Commonwealth Court, citing earlier decisions, recognized that there may be circumstances where a claimant may be forced to retire from his or her time-of-injury job due to a work-related injury, but may not be disabled from other types of work. In that situation, the claimant must show that he or she has not voluntarily withdrawn from the entire labor market and is open to employment within his or her physical capabilities in order to be entitled to benefits under the Act.

The Court added that If the employer produces sufficient evidence to support a finding that the claimant has voluntarily left the workforce, then the burden shifts to the claimant to show that there in fact has been a compensable loss of earning power. Conversely, if the employer fails to present sufficient evidence to show that the claimant has retired, then the employer must proceed as in any other case involving a proposed modification or suspension of benefits.

The Court reprinted portions of Claimant’s hearing testimony in which he admitted that he had not sought employment, partially because he could not perform his pre-injury work and partially because he and his wife had determined that it was financially better for him to stay at home with the children while claimant’s wife worked outside the home. Claimant admitted he could have accepted a relatively low-paying position — e.g., a fast food position — but that he would not have earned enough in that job to make it worthwhile, since he could stay at home with the children and avoid the expense of child care.

Employer Need Not Show That Claimant Does Not Intend to Work

The Court also stressed that the employee need not always show that a claimant does not intend to work. Proving that negative would be virtually impossible. Rather, an employer only has to prove that, although claimant may be forced to retire from his or her time-of-injury job due to the work-related injury, he or she was not disabled from other types of work.

Here, Claimant acknowledged that there was work he could do, but that he chose not to pursue it due to personal financial considerations, Under these facts, the employer was not required to present evidence of available work within Claimant’s restrictions or expert testimony regarding Claimant’s earning power. Accordingly, the Board erred by reversing the WCJ’s decision suspending Claimant’s wage loss benefits.