Employer not obligated to reinstate benefits or show continuing availability of suitable work when claimant, with residual disability seeking to return to light-duty job, suffers non-work-related total disability preventing him from working at all.
In June 1996, while working under permanent, light-duty restrictions, the claimant suffered a work injury to his right knee. The claimant filed a claim petition, and benefits were awarded after a Workers’ Compensation Judge granted the petition. Shortly after the June 1996, injury, the claimant returned to his pre-injury light-duty job. However, in July of 1996, the claimant was involved in a non-work-related car accident, suffering injuries to his left knee, low back and left hand. Again, the claimant went out of work and again returned to his light-duty job in April of 1997. On December 24, 1998, the claimant was in a second non-work-related accident, suffering injuries to his left knee, low back, left hand and left shoulder. During the week of December 26, 1998, the claimant unsuccessfully tried a brief return to work and has not returned to work in any capacity since then.
The employer filed a petition to modify/suspend the claimant’s benefits, alleging that, but for his December 1998 non-work-related injuries, the claimant was able to return to work as of November 9, 2005. The Workers’ Compensation Judge concluded that the employer met its burden of proving that the claimant’s work-related injury had resolved to the point that he could perform sedentary work but for the non-work-related injuries he suffered in the motor vehicle accidents. The judge found that the claimant’s non-work-related injuries rendered him incapable of all possible work activity and suspended the claimant’s benefits.
The claimant appealed the suspension of his benefits to the Appeal Board. The Board reversed the decision of the judge. According to the Board, because the employer failed to establish the availability of a job equal to or greater than the claimant’s pre-injury average weekly wage, the suspension was not warranted.
The employer appealed to the Commonwealth Court, which reversed the Board’s decision. In doing so, the court was guided by the Supreme Court’s decision in Schneider, Inc. v WCAB, 650 Pa. 608, 747 A.2d 845 (2000), wherein the Court held that the employer was not required to show job availability where a claimant was totally disabled by non-work-related conditions. In Schneider, after the claimant suffered work-related injuries to his head and neck, he was involved in a non-work-related incident, causing severe brain damage and paralysis, leaving him permanently unable to work in any capacity. The Court further held that, although there was no obligation on the part of the employer to show job availability in cases like this, the employer was still required to provide the claimant with a Notice of Ability to Return to Work, as required by §306 (b) (3) of the Act.
In the case of Whitesell v. WCAB (Staples, Inc.), the Commonwealth Court of Pennsylvania has upheld the Workers’ Compensation Judge’s and the Appeal Board’s rulings that the 300-week period of limitation on a fatal claim set forth in Section 306 (c) (1) of the Act cannot be “set aside” based on the theories that the originally accepted injury was amended years after its occurrence or that a consequential “insidious” injury caused the death.
In Whitesell, the claimant/decedent sustained a lumbar strain injury in 2003, which was accepted by the insurer. In 2006, the nature of the injury was amended to include a disc “disruption” in the lumbar spine with related surgery. In 2011, the claimant/decedent died as a result of “mixed drug toxicity,” and the widower filed a fatal claim, alleging the death was due to work-related injury medication.
The Workers’ Compensation Judge and the Appeal Board both held that the fatal claim time limitation cannot be extended due to an amendment to the injury description that was made years after the original injury occurred. The Commonwealth Court affirmed and effectively closed the door on the claimant’s attempt to toll or extend the limitations period set forth in Section 306 (c) (1) of the Act through the oft-cited argument that the nature of the injury was amended or changed years after its acceptance. The original injury date controls for limitation purposes.
This will help employers in Pennsylvania litigate these most difficult fatal claim petitions.
This case was handled by Anthony Natale and Audrey Copeland of Marshall Dennehey.
Case Law Alert, 1st Quarter 2014