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On July 12, 2013, an en banc panel of the Commonwealth Court issued a decision which lowers the burden of proof required for an employer to suspend a claimant’s workers’ compensation wage loss benefits in certain circumstances.
In SEPTA v. WCAB (Cunningham), the Commonwealth Court held that an employer does not have to show job availability to suspend benefits when the claimant has been released to some type of modified duty work with regard to the acknowledged work injury, but is otherwise totally disabled due to a non-work-related condition. Thomas Strohmetz, Esquire represented the employer in this matter, and argued the case before the Court en banc. Mr. Strohmetz is a founding partner of The Chartwell Law Offices.
The facts of the case are such that the claimant sustained a work-related right knee injury on June 11, 1996, after which he underwent surgery in January of 1997, and then returned to his pre-injury modified duty position in April of 1997. Thereafter, on December 24, 1998, the claimant was involved in a non-work-related motor vehicle accident resulting in injuries to his left knee, left shoulder, left hand, and low back. Defendant subsequently pursued a Modification Petition based on vocational work-up and actual job referrals for the 1996 work injury, but also pursued a Suspension Petition based on claimant’s totally disabling medical condition due to the non-work-related motor vehicle accident from 1998. The WCJ granted the Modification Petition based on the claimant’s failure to pursue the referred jobs in good faith. The WCJ also granted defendant’s Suspension Petition since she found that the claimant was capable of working in a modified duty capacity as it pertained to the 1996 work injury, but was otherwise totally disabled due to the 1998 motor vehicle accident. The WCJ’s Decision/Order was based in part on testimony from the defendant’s medical expert that the claimant was able to work modified duty as it pertained to the work injury, but was otherwise totally disabled due to the non-work-related MVA in 1998. The WCJ also relied upon the testimony of claimant’s vocational expert who admitted during cross-examination that the only reason the claimant stopped working for the employer was the December 1998 non-work-related accident. On appeal before the Workers’ Compensation Appeal Board (WCAB), the Board reversed the granting of the Suspension Petition, determining that proof of job availability was still required regardless of the disabling nature of any asserted non-work-related condition. In Cunningham, the Commonwealth Court rejected the notion that job availability would still be required if a claimant had a totally disabling non-work-related condition since to do so would be unreasonable and an "exercise in futility” as previously found by the Pennsylvania Supreme Court in its 2000 Decision in Schneider v. WCAB (Bey). In Schneider, the Supreme Court allowed the suspension of a claimant’s indemnity benefits without having to show job availability as the claimant had been involved in a non-work-related incident which resulted in severe brain damage and paralysis, leaving him permanently unable to work in any capacity. In Cunningham, one of the issues before the Court was whether a claimant’s non-work-related condition must be as severe as the brain damage and paralysis suffered by the claimant in Schneider in order for the claimant’s wage loss benefits to be suspended. The Court in Cunningham determined that the evidentiary record amply supported the WCJ’s conclusion that the claimant’s work injury had resolved to the point where he could perform sedentary work but for his non-work-related injuries and, as a result, the employer was not required to present evidence of work availability. In so deciding, the Court not only reinforced the earlier Decision of the PA Supreme Court in Schneider from 2000 which had appeared to have been eroded by subsequent Commonwealth Court Decisions, but, furthermore, this new Decision by the Commonwealth Court clearly rejected any notion that a non-work-related disabling condition must be as severe as the brain damage and paralysis suffered by the claimant in that earlier Schneider case. Moreover, the evidence required to support total disability as it pertains to the non-work-related condition need not be limited to medical evidence, as the WCJ and the Commonwealth Court both cited/relied upon the testimony of claimant’s vocational expert who admitted that the only reason the claimant stopped working for the employer was the December 1998 non-work-related accident. So long as "the record” supports the WCJ’s conclusion that claimant’s work injury had resolved to the point where he could perform modified duty but for his non-work-related condition, a suspension of benefits is appropriate.
To determine which of your claims may be significantly benefitted by this new Decision, please contact us for further assistance. Attorney Strohmetz can be reached at tstrohmetz@chartwelllaw.com or (610) 666-8417.
