Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225

EMPLOYER FAILS TO PREVAIL ON PETITION FOR SUSPENSION WHERE CLAIMANT IS TOTALLY DISABLED DUE TO NON-WORK RELATED MEDICAL CONDITION BASED ON FAILURE TO PROVIDE FORM LIBC-757, NOTICE OF ABILITY TO RETURN TO WORK.

See:Struthers Wells v. WCAB (Skinner), 990 A.2d 176 (Pa. Cmwlth. 3/12/2010)

Employer filed both a Petition for Suspension and a Petition for Modification. First, employer argued that where Claimant was released to sedentary work in regard to his work injury but was totally and permanently disabled from performing any type of employment as a result of non-work related medical conditions, it was entitled to a suspension of benefits consistent with Schneider, Inc. v. WCAB (Bey), 747 A.2d 845 (Pa. 2000). Secondly, employer averred that in the alternative Claimant was referred to an open position that fell within his physical restrictions and he failed to follow-up on that position in good faith.

The Claimant in Struthers Wells was injured in 1989. Thus, this was a pre Act 57 case. Employer’s IME physician had opined Claimant was capable of sedentary work due to his work injury, but had non-work related problems with diabetes, atrial fibrillation, chronic obstructive pulmonary disease, high blood pressure, coronary artery disease with bypass grafting, hypertension and congestive heart failure. Thus, the doctor opined that even if Claimant had no work related back problems, he would totally disabled. The doctor further testified that none of Claimant’s condition viewed in isolation would preclude him from working.

Employer also presented testimony of a vocational case manager. Considering the sedentary release for the work related back condition, two jobs were identified. Claimant made no contact with either employer and his counsel advised in regard to the second referral that Claimant was hospitalized and would not meet with such employer.

The WCJ granted the suspension of benefits based on the Schneider case. Schneider held that an employer was entitled to a suspension of benefits absent a showing of job availability when Claimant sustained a non-work related head trauma that resulted in brain damage and paralysis precluding him from ever returning to the work force. In the alternative, the Judge found that considering the work injury only, Claimant failed to respond in good faith to the job referrals.

On appeal, Claimant first argued that Schneider was not applicable and that the petition must fail where employer failed to provide Claimant with a Notice of Ability to Return to Work form, LIBC-757, consistent with §306(b)(3) of the Pennsylvania Workers’ Compensation Act. 77 P.S. §512(3). The Board agreed with Claimant’s argument and reversed the suspension of benefits.

The Court agreed that compliance with the provisions of §306(b)(3) of the Act is a threshold burden that must be met in order to obtain a modification or suspension of claimant’s benefits. Because the amendment is procedural, it applies to pre Act 57 cases. The Court noted that when Claimant is totally disabled based on a non-work related condition but he also requires restrictions due to his work injury, case law has suggested that the employer must make a showing of job availability consistent with Kachinski v. WCAB. (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987). The Court also cited Reading Anthracite Co. v. WCAB (Konopka), 728 A.2d 408 (Pa. Cmwlth. 1999) and Sheehan v. WCAB (Supermarkets Gen.), 600 A.2d 633 (Pa. Cmwlth. 1991). This latter case held that although Claimant incurred a non-work related heart attack, this was immaterial to determining whether the employer made a showing of job availability when Claimant’s work related condition had partially resolved. The Court recognized that the employer does not have to make a showing of job availability when the Claimant has regained the ability to return to his pre-injury job considering his work injury, but remains totally disabled due to a non-work related condition. Moreover, the Court noted that the Supreme Court’s decision in Schneider presented a distinct factual circumstance wherein Claimant’s condition was permanent and severe so that he would never be able to return to work.

Thus, the Court opined that the Judge strained the limits of Schneider to find employer was automatically entitled to a suspension in this case where he was totally disabled due to non-work related conditions. It cited Schneider’s own language that this was an exception, not the rule. The Court again highlighted the in Schneider the claimant was undoubtedly precluded from ever returning to work due to brain damage and paralysis so that labor market efforts were deemed absurd or fruitless.

However, in the instant case, Claimant was not as severely limited by his non-work related conditions. The Court recognized that Claimant’s prognosis was poor. That being said, the Court also recognized that Claimant was capable of appearing live and testifying before the WCJ, did limited driving, and cooks on occasion. Moreover, physician recommended different medication in hopes of improving Claimant’s functionality. Thus, the Court stated it would be unduly cynical to analogize Claimant to the paralyzed brain damaged Claimant in Schneider.

The Court stated that if an employer can establish that there is a job available that complies with the Claimant’s work related restrictions and the Claimant fails to return or accept this position because of non-work related factors, the employer has proven that the loss of earnings is attributable to something other than the work related injury. Accordingly, the Court stated employer was required to make a showing of job availability. This failed where employer did not provide Claimant with the Notice of Ability to Return to Work. The Court rejected employer’s argument that Claimant failed to raise this issue before the WCJ. It was noted that it was employer’s burden and that Claimant properly raised the issue on appeal.

Practice Pointer: Again, the Struthers Wells case highlights the need for proper job development or earning power assessment to prevail. Consistent with prior case law, Struthers Wells affirms that the Schneider rule applies in only the most limited circumstances. Specifically, an employer is absolved from establishing work availability only where Claimant is permanently and totally disabled due to severe medical condition. Again, Schneider dealt with a permanently brain damaged paralyzed Claimant.

Accordingly, it cannot be emphasized enough that filing form LIBC-757 is a pre-requisite to obtaining relief under the Workers’ Compensation Act. Struthers Wells is another pre Act 57 case where the Court refuses relief when the form was not properly filed. The form should be filed regardless of whether traditional Kachinski style job development is being conducted, Earning Power Assessment or retirement argument is being made.