Sladisky v. Workers' Compensation Appeal Board

DISSENTING OPINION by

Senior Judge FRIEDMAN.

I respectfully dissent from the majority’s decision to affirm the order of the Workers’ Compensation Appeal Board (WCAB) denying Michael Sladisky’s (Claimant) reinstatement petition. I do not agree that Claimant, following the expiration of the 500-week period of partial disability benefits exhausted during funded light-duty employment, must prove his physical condition has worsened in order to have his total disability benefits reinstated.

For purposes of workers’ compensation, “disability is the loss of earning power attributable to the work-related injury.” Diehl v. Workers’ Compensation Appeal Board (I.A. Construction), 607 Pa. 254, 277, 5 A.3d 280, 244 (2010) (internal quotations omitted). Section 306(a) of the Workers’ Compensation Act (Act),1 requires the payment of total disability benefits for the duration of total disability. Pursuant to section 306(b) of the Act, 77 P.S. § 512, partial disability benefits are available during any period of such disability, “but for not more than five hundred weeks.”2 Section 413(a) of the Act, 77 P.S. § 772, authorizes a WCJ to reinstate benefits at any time upon proof that a claimant’s disability (ie., loss of earning power) has increased. A claimant seeking to reinstate following a suspension3 must prove that:

(1) through no fault of his or her own, the claimant’s disability, i.e., earning power, is again adversely affected by the work-related injury, and (2) the disability which gave rise to the original claim, in fact, continues. There is a presumption that the continuing injury is, however, the same injury that caused the original disability. Once a claimant testifies that his or her prior work-related injury continues, the burden shifts to the employer to prove the contrary.

City of Harrisburg v. Workers’ Compensation Appeal Board (Palmer), 877 A.2d 555, 559 (Pa.Cmwlth.2005) (internal citations omitted).

In this case, it is undisputed that the medical restrictions resulting from Claimant’s work injury are permanent and, therefore, his disability continues. Employer subsidized a job with another employer, whereby Claimant performed a light-duty position tailor-made for him. Claimant was laid off from that position, through no fault of his own, when his 500 weeks of partial disability expired and Employer ceased subsidizing the light-duty position.

Had Claimant sought reinstatement pri- or to exhausting his partial disability benefits, Claimant would have met his burden, and he would have been entitled to a reinstatement of total disability benefits in the absence of proof by Employer of work availability. See Bethlehem Steel Corporation v. Workers’ Compensation Appeal Board (Laubach), 563 Pa. 313, 321-322, 760 A.2d 378, 383 (2000) (plurality) (rein*106stating claimant to total disability benefits where he had been working a modified job created by employer to reduce its obligation to pay total disability benefits when the job was eliminated as part of employer’s layoffs). But having sought reinstatement after exhausting his partial disability benefits, Claimant now has a higher burden under which he must establish total disability. See Stanek v. Workers’ Compensation Appeal Board (Greenwich Collieries), 562 Pa. 411, 425, 756 A.2d 661, 668 (2000) (noting that there is a higher burden under which “a posb-500-week claimant must establish his total disability ... than that required to obtain compensation initially or modification within the 500-week period”).

In order for total disability benefits to be reinstated after exhausting partial disability benefits, the Pennsylvania Supreme Court has required that “the claimant establish, by clear and precise evidence, that his increased, work-related impairment has precluded continuation of such light-duty employment.” Id. at 426, 756 A.2d at 669. Specifically, the claimant must establish that: (1) his disability has increased to the point that he “has no ability to generate earnings (or a ‘zero earning capacity’),” and (2) his medical condition has worsened.4 Id. at 425, 756 A.2d at 668. It is insufficient for a claimant to show that his work-related injuries continue and that his light-duty job is no longer available to him. See id.

In this case, the WCJ did not believe the standard espoused in Stanek should be applied in funded employment situations. The WCJ noted that, in her experience, employers pursue funded employment where an injured worker’s physical restrictions preclude employment in the open market. (WCJ’s Findings of Fact, No. 6.) The employer pays an outside employer to design a job tailored to the injured worker’s restrictions. (Id.) Citing General Electric Company v. Workers’ Compensation Appeal Board (Myers), 578 Pa. 94, 106, 849 A.2d 1166, 1173 (2004) (plurality),5 the WCJ concluded that “[t]he provision of subsidized employment outside the labor market that is only available as long as the [Employer is] willing to provide the subsidy cannot be used to establish that [Claimant] has an earning capacity on the open labor market despite his injury.” (WCJ’s Conclusions of Law, No. 3.)

I agree with the reasoning of the WCJ. Where, as here, an employer ceases to fund the light-duty work once its liability for a claimant’s partial disability benefits has expired, a claimant should not be required to demonstrate a worsening of his physical condition preventing him from performing even the light-duty employment. Otherwise, it encourages employers to set up artificial jobs for purposes of running the clock on a claimant’s partial disability benefits, thereby ending its obligation to pay benefits to which the claimant would have otherwise been entitled, which is exactly what occurred here.

Claimant was not recovered from his work injury and was unable to perform his time-of-injury job, so Employer would have been obligated to pay Claimant total disability payments between August 2005 and November 2008 and thereafter. Employer funded the light-duty job with the *107Easter Seals Society of Western Pennsylvania (Easter Seals).6 When Claimant began his job at Easter Seals, Employer modified his total disability to partial disability. Claimant worked for Easter Seals for over three years, collecting a salary and partial disability benefits. This employment does not accurately reflect Claimant’s ability to secure a job in the actual labor market. Employer clearly pursued funded employment to terminate its obligation to pay disability benefits to Claimant.

The majority reasons that, if Claimant believed the Easter Seals job was not a real job or that Employer was not making a good faith effort to return him to productive employment, Claimant should have challenged the funded position when it was offered to him in 2005. Hindsight is 20/20. Had Claimant known that Employer would cease funding the light-duty employment once Claimant exhausted his 500-weeks of partial disability, in all likelihood, Claimant would have challenged the offer of subsidized employment. Instead, Claimant naively accepted the position and worked in this light-duty capacity until Employer ceased funding the position. Claimant is now without funded employment and without disability benefits because he cannot prove that his condition has worsened. Claimant should not be penalized for a good faith effort to return to the labor market to a job he was capable of performing.

Claimant’s burden should be altered by the fact that the last job Claimant was deemed capable of performing was funded employment, rather than a job available to Claimant on the open market. The majority’s position permits, if not encourages, employers to use funded employment to exhaust partial disability payments. Such a position is contrary to the humanitarian purpose of the Act.

For these reasons, I find it unconscionable to count funded employment towards a claimant’s 500-week limitation on partial disability benefits. I believe claimants should be automatically eligible for total disability benefits upon the elimination of their funded light-duty job. Therefore, I would reverse the order of the WCAB.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.

. For injuries, as in this case, occurring before June 24, 1996, the extent of partial disability is measured by the loss of earning power. As of June 24, 1996, however, the definition of earning power relative to partial disability was modified by the amendments to the Act.

.An award of partial disability benefits is equivalent to a partial suspension of benefits. Dillon v. Workmen’s Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 503, 640 A.2d 386, 392 (1994).

. Once the claimant meets his burden, "[t]he burden to prove the availability of employment consistent with the claimant’s physical limitations will then shift to the employer.” Stanek, 562 Pa. at 426, 756 A.2d at 669.

. There, the Supreme Court held that the WCJ did not abuse her discretion in considering the subsidized nature of the proffered job and the effect of that funding on the availability of that job. General Electric, 578 Pa. at 106, 849 A.2d at 1173.

. Employer had to refer Claimant to a specific job and could not establish Claimant’s earning power by doing a labor market survey because Claimant was injured prior to the June 1996 statutory amendment providing for labor market surveys. See Riddle v. Workers' Compensation Appeal Board (Allegheny City Electric, Inc.), 603 Pa. 74, 82 n. 8, 981 A.2d 1288, 1292 n. 8 (2009).