Commonwealth Court Affirms the Suspension of Benefits Where Overtime Reduced Due to Changes in Staffing and Funding
By Lisa Lane, Esq.
Who can forget the excitement shared by defense attorneys, risk managers and claims professionals in 1995 when the Pennsylvania Supreme Court held in Harle v. WCAB (Telegraph Press, Inc.) that if a loss of wages is not due to the work injury, no disability benefits were due? Employers and defense counsel excitedly litigated petitions to prove that claimants' ongoing wage loss was due to economic conditions and not causally-related to the work injury. What followed was a series of disappointing decisions from the Commonwealth Court eroding this general principle.
This Wednesday, however, the Commonwealth Court issued a decision in Donahay v. WCAB (Skills of Central PA, Inc.), which shows that at least some of the principles established in Harle are alive and well.
In Donahay, the Employer filed a termination petition based upon evidence of full recovery, with a contemporaneous suspension petition alleging that even if not fully recovered, Claimant could do her time of injury job.
Claimant presented testimony from her treating physician that she had a 50 pound lifting limitation. Claimant contended that her physician limited her to 45 hours per week and thus, she did not schedule herself for overtime beyond that. The treating physician did not place a limitation on hours during his testimony. Claimant further contended that since she had restrictions on her ability to work, she was entitled to partial disability benefits.
Employer presented testimony that at the time of injury, Claimant was working 80 to 85 hours per week with overtime. This was due to an unusual situation where the Employer was understaffed. Employer witnesses testified that the staffing had returned to normal and that due to a decrease in funding, overtime was not limited for employees across the board.
The WCJ suspended benefits despite rejecting the testimony of the IME physician who supported full recovery. The WCJ instead found as fact that Claimant, as a team leader, was capable of scheduling herself for the same overtime as similarly situated fellow employees. The WCJ further found the restrictions of Claimant’s physician DID NOT prevent Claimant from doing her pre-injury position. The WCJ held that:
“Due to both economic constraints and intended normal business practices, since the time of the injury, and with no relationship to the injury whatsoever, that situation has now
been fairly rectified, resulting in reduced overtime for [claimant] as well as other Skill employees staffing that home. Under these circumstances where [claimant’s] earning power
is no longer affected by her work related injury, she is no longer entitled to partial disability benefits, even though her earnings may not match her pre-injury earnings.”
Donahay at page 6.
The WCAB and Commonwealth upheld the Judge’s decision, noting that such a ruling was consistent with the prior ruling in Harle that if the reduction in earnings is not attributable to the work injury, partial disability benefits are not due. The Court also rejected claimant’s argument that she was due partial disability benefits solely on the basis that she was working under medical restrictions. The Court relied on prior rulings which established that medical restrictions are “irrelevant” if they do not prevent the claimant from performing the claimant’s pre-injury duties. This is particularly notable, as the claimant was injured while assisting a client who was “hanging on her arm” for support due to a leg problem. Since the client’s leg problem had resolved , Employer successfully argued that this portion of Claimant’s pre-injury job no longer existed.
This decision is a refreshing reminder of the Pennsylvania Supreme Court’s wise decision in Harle that disability benefits should only be paid when the wage loss is attributable to the work injury. Here are some lessons that Employers and claims examiners should take away from this decision:
1. When evidence of full recovery is received from an IME physician, it is wise to offer full duty work if available. This provides an alternative way to avoid ongoing disability benefits.
2. Employers should have job descriptions. The employer witnesses in this case were able to rely upon established job descriptions that helped prove that claimant’s medical restriction did not prevent the claimant from doing her pre-injury position.
3. When paying an ongoing partial on a claim, investigate whether the partial disability is causally-related to the work injury or some other economic factor.