February 2010 Email Newsletter
The BSH Email Newsletter
Retraining and "Vocational Evaluation" under Workers’ Compensation
Layoffs and Benefits- What an Injured Worker Needs to Know
Reinstatement after Layoff from a New Job
Termination from a Light Duty Position and Replacement by a New Hire
Upcoming Seminars
The BSH Email Newsletter
The Blaufeld Schiller & Holmes, LLP Email Newsletter is our effort to better educate our union friends and clients about Workers’ Compensation and Social Security Disability issues. Each newsletter will include articles about a specific aspect of workers’ compensation or social security, as well as information on recent court decisions. The newsletter will also list upcoming seminars and dates when our attorneys will be in your area for consultation. Please note that if you, or one of your members, need to speak with our attorneys, we are always on hand at (800) 343-9384. Call anytime, as we would be more than happy to assist you. Local appointments are available.
Retraining and "Vocational Evaluation" under Workers’ Compensation
When an employee is injured, and unable to return to work with his/her employer at some level of duty, it seems appropriate for retraining to be undertaken. This could assist the injured employee in finding a new position with the time of injury employer-moving from the assembly line to the front office, for example-or finding new employment. These alternatives would certainly lessen the "burden" on the employer and its workers’ compensation carrier, and allow the injured worker to continue to be a productive member of the work force. However, under the Pennsylvania Workers’ Compensation Act, retraining is not something for which the time of injury employer is responsible. It is also not a viable option to request retraining from the insurance carrier. There is no way to file a petition request it as a remedy under the Workers’ Compensation Act. What is in place is a "vocational evaluation" that the employer/carrier can use to cut down the amount of compensation benefits paid an injured worker if he/she does not cooperate fully or, in the case of a labor market survey/earning power assessment, if the Judge believes that there are "jobs available" to that injured employee which the employee is capable of performing.
Why is this the case? Pennsylvania is a "wage loss" state, which means that we do not measure "disability" in the terms one usually would use, that is, by medical condition or by necessary restrictions and limitations. Rather, we use "disability" to mean the effect of that medical condition and/or those restrictions and limitations on the injured worker’s ability to earn wages. This is why, if an employee returns to work after an injury and earns the same amount as the pre-injury average weekly wage, that employee is not considered to be "disabled," even if he/she goes to physical therapy after work three times a week. "Disability" means inability to earn one’s pre-injury average weekly wage under Pennsylvania’s workers’ compensation law.
Accepting this as the law, it would seem reasonable for employers or workers’ compensation carriers or third party administrators to offer to pay for retraining or to educate an individual so that a return to work can occur. It would be a short term burden on the compensation carrier-an associate’s degree in medical billing from a community college for example-for a long term gain-suspension of benefits because the injured workers is earning his/her pre-injury wage and in fact might be with a new employer, lessening the future impact of compensation on the time of injury employer. However, it seems to us that the reason this vocational rehabilitation is not accomplished is because of the COST the insurance carriers would bear, not the costs that would be saved at the end of the case. If an insurance carrier were to pay for re-training, they would pay not only for the cost of the schooling, for example, but also workers’ compensation total disability benefits during the period that the employee went to school. From the carrier’s perspective, that could more than double the "cost" of the case. In many cases, the "benefit" would not be to the employer, as the injured worker might put that training to use for another employer, not the company that sponsored it. There would be no effective way that an employee’s choice as to schooling could be legislated. Some carriers would have to pay for a three week long distance truck-driving training course, while other carriers would find themselves subsidizing an injured employee’s return to college for a nursing degree. There would be constitutional arguments at issue if the employers/carriers tried to draft into legislation an across the board level of education. Also, with educational costs rising as they do, it would be hard to legislate a dollar figure that would actually assist injured employees in a quest to retrain that would be meaningful for them.
More likely the greater reason that this is not a practical suggestion is because employers/carriers/third party administrators have options available to them that can result in the same outcome-stopping or cutting down an injured worker’s benefits-without the "expense" of retraining or education. This is accomplished in one of two ways, depending upon the date of the employee’s injury (before or after June 24, 1996). If the employee’s injury is prior to the change of the Act (before 6/24/96) the employer contracts with a vocational "specialist," and that individual finds actual jobs which fit within the injured worker’s restrictions and limitations. This is called a Kachinski style job search, because of the Court case which sets out the requirements for how such job development is to be performed. Once the vocational specialist finds these jobs, the specialist sends letters certified (and usually regular mail, because people often refuse certified mail) to the worker to invite him/her to apply for these jobs. If the injured worker is offered a job and accepts the job, there is a simple calculation performed: the wages from the new job are compared on a weekly basis to the pre-injury average weekly wage; if there is a wage loss, the injured worker is paid two-thirds of the difference. If there is no wage loss, there is a suspension of benefits-either of these options continues for 500 weeks.
This same method is used under this Kachinski style search, even if the injured worker is offered the job and refuses it. However, under those circumstances, the employer/carrier must file a Petition and go before a Workers’ Compensation Judge. There, the employer/carrier present the vocational expert’s testimony, as well as testimony from the prospective employer(s) and the employee also testifies. If the Judge believes that the job was appropriate for the injured worker and the refusal was in "bad faith," the benefits can be modified as though the employee was actually earning those wages. If enough employers fail or refuse to hire the injured worker, the compensation carrier argues to the Judge that the injured employee is "sabotaging" the job search, and compensation can be modified or suspended, again based on the wages of the job the Judge finds would have been most appropriate and/or pays the most, so long as that job fit within the employee’s restrictions and limitations.
In 1996, these rules were changed and most employees would fall within this category, as their injuries have occurred since 1996. Under the "new" law, it is not necessary for the vocational "specialist" to send the injured worker to job interviews. This new form of "vocational assessment" is still based, at least in part, on the interview the injured worker has with the vocational specialist. Under the law, the injured employee cannot refuse the interview with the vocational specialist, except in very limited circumstances. If the employee fails or refuses to comply with the interview, his/her benefits can be suspended until the interview takes place, and those benefits are never recouped.
Once the interview has been performed, the vocational "specialist" prepares a labor market survey which determines what jobs would be "available" to the injured worker based on the restrictions and limitations that individual has a result of the work injury. Then, an earning power assessment is undertaken, based on the wages that would be paid in those jobs and the hours (full or part time) those jobs are available. Under this type of "vocational evaluation," a petition must be filed, and testimony must be offered, and then the Judge decides whether any of those jobs are truly available as the law requires-open to that worker and within the restrictions and limitations found to be appropriate by either the treating doctor or the defense evaluating doctor. The Judge can then modify or suspend the injured worker’s benefits even if the employee never gets any of the jobs outlined in the labor market surveys. Some carriers will try a combination of these two approaches-do a labor market survey and send the injured worker out to look for one or more of the jobs, so that the arguments in support of suspending or modifying benefits are stronger.
As you can see, the employers/carriers/ administrators can "save" money without doing what is best for injured workers. Please understand that injured workers can return to school or get retraining, and a Judge can admonish employers/carriers/administrators who try to interfere with that schedule, but the law does not at this time require that any aid or assistance be given by the employers/carriers/administrators for that purpose. "Non-interference" clearly is not the same as active assistance, but there is nothing an attorney can do to "force" an employer to take an active role in retraining injured workers.
Why is this the case? The insurance carriers and employers who lobby our legislators do not see paying for retraining for injured workers as any benefit to them, and see it as a greater out-of-pocket expenditure than they are now required to make. If more workers could convince the legislators that this would be an economic bonus to the Commonwealth, at no greater cost to the carriers than what is spent on the litigation of claims, there MIGHT be some consideration to it. However, until the people with money and power see retraining as an incentive to business in this Commonwealth, the law will not likely change.
Layoffs and Benefits- What an Injured Worker Needs to Know
In this time of "economic downturn" many plants are laying off workers. Often the first to get the "pink slip" are those who are working at modified duty and at less than their time of injury wage-and getting a partial from the compensation carrier-due to restrictions and limitations resulting from their work injury. It is essential for any injured worker to know and understand his/her rights at layoff. The injured employee may stand on different footing than co-workers working modified duty due to non-work-related conditions, or who are laid off from a regular duty position.
Whether an injured worker is entitled to resume total disability worker’s compensation benefits depends upon his/her status at the time of layoff. If the injured worker is on modified duty due to work-related restrictions, the termination of that position should result in the resumption of total disability benefits, because the employer is no longer making work available within the employee’s work-related restriction and limitations. Under these circumstances, the reinstatement of benefits should be automatic upon the employer advising the compensation carrier that the injured worker has been laid off. Sometimes it takes time for the employer to provide the information to the compensation carrier and there is a lag time between the last paycheck and the first compensation check. There is no problem with injured workers contacting their adjusters to advise of this change in circumstances. However, if the injured employee has an open compensation claim and is represented by counsel, this information should pass through the attorney’s office as well, so that counsel is aware and can take action if the reinstatement of benefits does not occur promptly. It may be necessary for a Supplemental Agreement to be issued and this may also hold up the resumption of the benefit checks; having counsel involved in the process may expedite any "issues."
Benefits should also be reinstated automatically if the injured worker is laid off from a regular position in the plant that specifically was bid to or assigned because of the injured employee’s ongoing restrictions from the injury. If, because of the lay-offs, that position is eliminated or the injured worker has less seniority in that department because of the bid due to the need for restrictions, the compensation carrier should automatically reinstate total disability benefits. However, that does not always happen, because the job is considered to be a "regular duty job," and the injured employee’s particular circumstances are not taken into account. Under these circumstances, the assistance of counsel is beneficial, because the appropriate medical documentation can be forwarded by counsel to the adjuster and, if necessary, a petition can be filed. An amicable resolution of the issues may be able to be reached, without the need for lengthy litigation over the issues, although that cannot always result. Sometimes there are arguments over whether the job that the injured worker held was really one which was necessary because of restrictions and limitations. Having an attorney involved early on can get this process moving forward more quickly, with an eye toward the reinstatement of benefits sooner rather than later.
The more complicated case is one where the injured worker has returned to his/her time of injury job but only because that position does not require work which is beyond the restrictions and limitations placed on that employee as a result of the injury. In those cases, the comp carrier will argue that the injured worker was laid off from the time of injury job, and stands in the same shoes as any other worker. However, the compensation carrier should always be contacted, and the request for reinstatement made. It may be necessary to file a petition, but if the injured worker can show that the time of injury position was modified in any way to accommodate the restrictions, or that he/she was not performing every one of the duties of that position, or had a helper, then total disability may be reinstated. These cases are quite fact specific, but those options should always be explored if workers’ compensation benefits are a possibility.
The advantage to workers’ compensation benefits, as compared to unemployment benefits, are several. Usually workers’ compensation benefits are more in amount than unemployment benefits are. Workers’ compensation benefits are not taxable, while unemployment benefits are. While the taxes may not be taken out immediately, they are taxable at year’s end-workers’ compensation benefits are not taxable for any purpose. Unemployment benefits are of a defined finite (26 weeks generally-sometimes individuals qualify for extensions) duration, while workers’ compensation benefits are potentially limitless. For these reasons, injured employees facing lay-off should turn first to the compensation carrier, not to unemployment. (There is no requirement that an injured worker exhaust unemployment benefits before workers’ compensation benefits "kick in," despite what an employer might say). It is plainly worthwhile to evaluate the possibility of workers’ compensation benefits when a lay-off occurs. It is essential to note that an injured worker should not apply for unemployment if he/she knows that they will be entitled to workers’ compensation; the net unemployment benefit will be credited against workers’ compensation benefit, so the injured worker will pay taxes on what should be a non-taxable benefit.
Any medical treatment that an injured worker needs for the injury should continue to be covered, even after layoff, and even if the injured worker was performing all the duties of his/her regular job. The lay-off has no impact on an injured workers’ entitlement to medical for the work injury, so long as the injured worker is in a suspension status. If there is some question about that status, the injured worker should contact counsel, who can obtain copies of the relevant workers’ compensation documents to be certain that the right to medical remains open. Other medical benefits may be impacted by the lay-off, but those benefits would be contractual in nature. Medical benefits paid by the employer may only continue by terms of the CBA, for a certain period of time. If the lay-off is going to be lengthy-or permanent-employees are to be notified of their rights to continue benefits under COBRA, so that they do not lose long-standing insurance coverage. Pension or other vested benefits should be frozen as of the date of the lay-off, and there are special rules and regulations for getting those benefits to either roll over or to be able to use. However, there can be substantial penalties for "invading" these benefits, all of which should be explained in detail by the company-in writing--when employees are laid off permanently. When the lay-off is temporary, companies are not required to provide information concerning all of the other benefits.
Lay-offs provide employees with many questions. Those who are injured workers should immediately begin to consider where they stand as a result of their work injury, so as not to lose benefits to which they are entitled, but which may not be automatically offered or frankly even discussed. No injured worker should assume anything about his/her workers’ compensation benefits. Questions should be asked and if the answers are not forthcoming, an injured worker should investigate his/her rights immediately. Contacting us immediately under these circumstances can assist the injured employee in exploring all the options in these difficult economic times.
Reinstatement after Layoff from a New Job
Is an Employee who Takes a Better Job with a Different Employer Out of Luck for Reinstatement?-The Supreme Court Will Tell Us Soon
Facts: In Bufford v. WCAB (North American Telecom), the claimant was a communications installer who suffered a low back injury. His injury was accepted, he was off for a while, and then eventually returned to work with that employer at light duty. Several years later, he voluntarily left that light duty position to work with a different employer at a higher rate of pay. In his new position, he had a six month at a time contract. After 4 ½ years, his contact was not renewed. Mr. Bufford filed a Reinstatement Petition, alleging that he suffered a worsening of condition and decreased earning power due to his work injury.
Initial Ruling: The Workers’ Compensation Judge accepted the employer’s argument that Mr. Bufford’s wage loss was due to an economic downturn, and did not have any relationship to his work injury. Therefore, the reinstatement was denied.
Appeal Board Ruling: The Board remanded the case back to the WCJ to determine whether Mr. Bufford’s wage loss was solely due to his decision to leave North American Telecom to take the other job.
Judge’s Decision on Remand: The Judge determined that Mr. Bufford’s decision to voluntarily terminate his employment with the time of injury employer was not due to his work injury, but instead was due to his desire to obtain higher wages. The Judge further determined, based on the medical evidence, that the injured worker was capable of returning to the light duty position he had been provided with the time of injury employer, and that there had been no "change" in his physical condition due to the work injury that would require reinstatement. The Appeal Board affirmed on Mr. Bufford’s second appeal.
Court Rationale: On appeal, the Commonwealth Court affirmed the Judge’s decision, finding that Mr. Bufford’s case was more consistent with the line of cases that fails to reinstate benefits when an individual is laid off or terminated from a subsequent employer. The burden of proof, according to the Court, lies with the injured worker to show that "through no fault of his own" his earning power is adversely affected by the injury he suffered. Then, the claimant must show that his disability continues. In Bufford, the Court explained, the facts showed that the claimant was capable of performing the job that he had left with North American Telecom. Further, the Court determined, because the Judge rejected as not credible Mr. Bufford’s testimony that he left North American Telecom because of his injury-finding instead that it was for a greater pay rate-they were bound by that credibility determination. Therefore, the earnings loss suffered by Mr. Bufford resulted from his being laid off from his new position, not his physical inability (due to his work injury) to perform the light duty position which he had left. The Court further explained that, under these circumstances, the burden of proof never shifted back to the time of injury employer, North American Telecom, to show that the light duty job, or any job which could accommodate his restrictions, was available. Finally, the Court specifically explained that "fault" does not necessarily mean bad faith or a bad motive. Rather, the Court noted, "[s]uch a claimant merely made a decision to take a risk, which due to the uncertainties of life, might or might not have turned out for the better."
Supreme Court Acceptance: The Pennsylvania Supreme Court has accepted this case for consideration. Please understand that the Supreme Court of Pennsylvania does not accept every case. However, where the Court sees that there are conflicting legal decisions that must be assessed, and one rule of law implemented, the Court will grant allocator also known as a Petition for Allowance of Appeal. In Bufford, the Court specifically noted that it is looking at the burden of proof, and who bears the burden of proof under these circumstances, and what specifically a claimant who leaves the time of injury employer for a better paying job must prove when that position is lost "through no fault of his/her own."
Discussion: While at this point there is no "bright line" rule of law as to an injured worker’s burden of proof under the circumstances outlined in Bufford, there are still lessons to be learned, whatever the outcome of the Supreme Court’s consideration. In this economic climate, where jobs are uncertain and people often jump at the chance to take a little bit more money, there stands a strong possibility that if that worker is laid off or down-sized at the second employer, there is no "guarantee" that he or she will go back on workers’ compensation benefits. What should concern injured workers/claimants is that the Court, at least to this point, has not required the defendant to bear any burden of proof whatsoever under the Bufford case. That is, the employer does not have to show that the light duty job is still there for the injured worker. In most circumstances, in order for benefits to be modified in any way, there must be proof that there is still a job with the time of injury employer; otherwise, benefits should continue. However, in Bufford, the Judge and the Court never got to that inquiry. They decided that because Mr. Bufford left, that was sufficient and there was almost no way that he could get a reinstatement of benefits. There was not question as to what "no fault of his own" actually meant. This is truly concerning, because if an injured worker has the opportunity to make more while staying within his/her modifications and going to another job, it seems under Bufford they are automatically giving up any chance to have benefits reinstated unless the physical complaints actually get worse and a doctor will say so. While trying to better oneself is always a good plan, injured workers will need to consider all the ramifications before taking that new job, in case it does not turn out to be as promised. Reinstatement of benefits will not be automatic, at least under the current state of the law.
Termination from a Light Duty Position and Replacement by a New Hire
What is the Burden of Proof Where an Injured Worker is Laid Off From a Light Duty Job and Replaced by a New Hire?
Facts: In Rosenberg v. WCAB (Pike County), the injured worker returned to work with her employer at modified duty in a clerical position. About ten months later, the employer terminated her from employment on the basis that it did not have permanent light duty available and she was never going to be able to return to her time of injury job. About six months after the termination, the employer filed a Petition to Modify Ms. Rosenberg’s benefits on the basis of a labor market survey.
Initial Ruling: The Workers’ Compensation Judge accepted three of the positions on the labor market survey, and therefore imputed earnings to her based on one of them, modifying Ms. Rosenberg’s benefits.
Appeal Board Ruling: Ms. Rosenberg appealed, arguing that the WCJ failed to make a finding on the first issue critical to review of a case based on a labor market survey, that is, whether there is work available to the injured worker with the time of injury employer. The Board therefore vacated the decision and remanded the case back to the WCJ to determine whether the employer had met its burden of proof on that issue.
Judge’s Decision on Remand: The Judge upheld the initial decision. Although noting that there was a letter terminating Ms. Rosenberg’s employment, the WCJ found that there was no requirement that an employer prove the absence of specific jobs with the employer as a prerequisite to testimony concerning an individual’s earning power.
Appeal Board Ruling on Appeal From Remand: The Appeal Board affirmed on Ms. Rosenberg’s second appeal. The Board further determined that the finding that the employer did not have "permanent light duty" allowed the earning power assessment to go forward.
Court Rationale: On appeal, the Commonwealth Court remanded again to the WCJ to address the issues with respect to the continuing availability of the light duty position with the employer, from which the injured worker was terminated, and for which someone else was hired. The Court noted that the Act requires the employer to offer "a specific job vacancy the claimant is capable of performing" to the injured worker before it can utilize the earning power assessment/labor market survey that this employer was trying to use. The Court held that, in this case, the employee offered evidence that during the time period the modification of her benefits was at issue, there was work available with the employer which she was capable of performing which was not offered to her. Because the vocational expert witness was not aware of this opening, and did not discuss an open position with the employer, the Court held that the Judge erred in failing to discuss this evidence regarding the open and available job, and had to do so in order for the Court to determine whether a modification of benefits was proper. The Court explained that the Judge was free to accept or reject the evidence, but that it had to be discussed in order for the Court to determine whether the Judge’s decision to modify benefits was, in fact, correct.
Three Judges of the Court joined in a dissenting opinion, in which they agreed with the majority that the employer must meet the burden of the Act in offering a job which is available. The dissenters believed, however, that while the majority believed that the Judge could reject the evidence submitted by the employee and modify benefits in this case, the fact that there was a job available stopped the employer here from using a labor market survey/earning power assessment, because it could not meet that initial prong of the test, that no work was available to the injured worker with the time of injury employer during the relevant time period. Here, the Court held, the employer was in fact required to prove the non-existence of a job, that is, prove that there were no jobs available with the employer. That was its burden of proof and it failed to meet that burden. In fact, the dissent argues, the employee proved otherwise with the submission of the letter and the testimony concerning the fact that a new person was hired to fill the modified position. Under those circumstances, the Judges determined, the case should not have been remanded for further findings, but should have been reversed outright.
Discussion: There are many employers who do have only limited periods of light duty work available to injured workers. This case points out the hazards to both parties under those circumstances. Employers who only provide a minimum period of light duty may have many more hurdles to jump to modify an injured worker’s benefits through the other means available under the Act. However, the injured workers cannot take this case as a guarantee that they will be able to go back on compensation "forever" under these circumstances. Rather, the fact of the remand shows that some Judges may be willing to listen to the argument that there is only a certain period of light duty available by collective bargaining agreement, and such a contractual relationship must be given its full effect. Under those circumstances, a WCJ may feel there is no option but to allow the employer to undertake the labor market survey. It is essential to note also that these cases do not say that an employer cannot take advantage of the "old style" job search-that is, terminate the injured employee from the light duty program, and then send him/her out to various and sundry other "potential employers" to interview and get a job. While claimants’ attorneys have arguments, these are uncertain times. While the economy is in the situation it is currently, employers may try to axe those workers who are not considered by them to be "as productive," that is, the employees who are on some modified duty.
This case illustrates that when an injured employee knows that his/her company has only a limited period of modified duty, or the contract only provides for a set period of light duty work, thoughts of "what comes next" have to present themselves earlier rather than later. It is essential for an injured worker whose light duty is controlled by a collective bargaining unit to talk with the union to find out exactly what the parameters of that modified duty program are. The worker has to know how that program impacts him/her specifically, so that considerations as to how best to proceed can be made. The injured worker needs to know that as soon as a "vocational specialist" contacts them, they should contact counsel, because often the vocational part of a case moves forward and the injured worker does not sense that this is a "problem" until it is too late, and arguments about how the vocational process can and should proceed have gone by the wayside. When the compensation carrier sets up a "vocational meeting," it is not likely for the injured worker’s benefit, and the sooner that employee seeks counsel, even just for questions, the better off that employee will likely be.
Upcoming Seminars
| What | When | Where |
|---|---|---|
| Workers’ Compensation Seminar | March 9, 2010 at 9:30 and 3:00 | USW Local 8183 1445 Market Street Beaver, PA 15009 |
Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.
FREE Seminars for your union or group are also available.
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