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A Claimant is not entitled to partial disability benefits when she returns to work, essentially doing her regular job, although she has other workers help her with certain tasks, and although she has a lesser wage because overtime is limited to 16 hours per week for all employees.

Donahay v. WCAB (Skills of Central PA), No. 869 C.D. 2014, filed February 4, 2015

Factual and Procedural Background
Claimant suffered a right arm injury in 2011 while working as a residential services assistant. An Agreement for Compensation accepted the injury and paid her TTD. In August 2011 claimant returned to work with restrictions, earning less than her pre-injury AWW, and a Supplemental Agreement was signed modifying her benefits to partial disability. Employer obtained an IME finding claimant fully recovered and able to work without restrictions, prompting termination and suspension petitions to be filed. During the course of litigation, claimant testified that she was essentially doing the same job she had been doing at the time of her injury, and that her restrictions had not interfered with her performance of her regular duties. She received help from coworkers when needed, and she didn’t work in a facility where she needed to lift patients or push wheelchairs. Protocol for her facility was to call 911 when a patient fell, rather than try to lift them herself. She set her own work schedule and the other employees at her group home, and her hourly wage was higher than at the time of injury.

She was receiving partial disability benefits because she was not working as many hours. Pre-injury, she had been working 85 hours per week, and since her return her treating physician had limited her to 45 hours per week. As a result, she only scheduled herself for 45 hours per week. (It should be noted that her treating physician testified during his deposition that he did not limit the number of hours claimant could work.) She also admitted that due to funding cuts, the employer had limited overtime available to all employees. An employer representative confirmed that claimant could perform her job within the restrictions, and was free to schedule other employees to do the tasks claimant could not. The employer also confirmed that all employees were limited to no more than 16 hours of overtime per week unless absolutely necessary.

The WCJ denied the termination petition but granted the suspension petition, declining to credit claimant’s claim that she was limited on the number of overtime hours she could work due to medical restrictions. The WCJ held that claimant’s loss of earnings was due to claimant’s self-imposed limits on overtime and employer’s limitations on overtime for all employees. The WCJ also supported suspension because claimant’s wages combined with partial disability benefits would exceed the current wages of her fellow employees in similar employment. The Board affirmed the decision of the WCJ, so claimant appealed again to the Commonwealth Court.

Commonwealth Court Decision
In affirming the Board, the Commonwealth noted that under workers’ compensation law, “disability” is synonymous with loss of earning power. The Act limits payment of partial disability benefits to address loss caused by the compensable injury. In this case, since claimant’s loss of earning power was attributable to economic circumstances of the employer, she was not entitled to partial disability benefits. The Court cited to the Supreme Court’s decision in Harle v. WCAB (Telegraph Press, Inc.), when it was held that the difference between post-injury and pre-injury wages did not automatically entitle a claimant to partial disability benefits. The Commonwealth Court also relied on the prior holding of Trevdan Building Supply v. WCAB (Pope), when a claimant was denied partial disability benefits for wage loss based on the elimination of overtime by the employer for all employees. The Court pointed out that in Trevdan they had noted that a claimant who returns to work with restrictions that do not require a modification of their duties are considered to have returned without restriction. They had also previously held that it was irrelevant if an accommodation could be construed as a restriction, as the person was still doing his regular job.

The Court noted in this case, claimant was performing her pre-injury job, not a light duty position. Her medical restrictions were irrelevant as they did not require a modification of her pre-injury job duties, and she had not been asked to do anything that exceeded her doctor’s restrictions. Furthermore, it was not the work injury that was limiting the number of overtime hours, as her claim of such was refuted by her own doctor’s testimony. Her loss of earnings was attributable only to the addition of staff and limitation on overtime to all employees due to funding cuts and was in no way due to the work injury.

Claimant did note that the Board did not address her argument regarding the WCJ’s alternative reasoning for suspension, i.e. her income exceeding that of other employees similarly situated. The Court indicated that since the Board affirmed suspension based on the reasoning that her loss of earning power was not due to her work injury, there was no need for it to address this second argument. Similarly, the Court also had no need to address this argument.

Analysis
Very often we see the situation where claimant returns to work and the parties debate whether he is doing his regular job or a different lighter job. This occurs both in the heavy work environment as well as the sedentary work environment. For example, we currently have a case where a roofer returned to work with an assistant as well as a case where a group home manager returned to her desk job but needs to be available for as-needed nursing assistant duties if another worker calls off.

Practice Pointer
Accordingly, we recommend that when a worker returns to work that you question both the injured worker and the employer regarding the worker’s job duties. If you discover claimant is doing his/her regular work, we recommend that you prepare a job description and have it signed by claimant if possible and if not, at least by the employer. This will help in litigation if the claimant later obtains counsel and alleges that he returned to modified work rather than his regular job.