Pennsylvania law requires the payment of partial disability benefits when an employee has returned to work with a loss of earnings, but only if that loss of earnings is related to the work injury. Often times, the key factor in analyzing whether partial disability benefits are payable is not whether the employee is released to return to work with restrictions, but instead, whether any imposed restrictions prevent the employee from performing his or her pre-injury job duties.
This distinction was highlighted by the Commonwealth Court in the recent case of Donahay v WCAB (Skills of Central PA, Inc.) decided on February 4, 2015. In Donahay, the employee suffered a compensable right biceps tear in February 2011, had surgery, was out of work for about five months and then returned to the workplace in August 2011. At that time, her doctor placed limitations on her ability to work and she began receiving partial disability benefits. However, following an independent medical examination (IME) in which the doctor found a full recovery, and in conjunction with a termination petition, the employer also argued that benefits should be suspended because the employee's loss of earnings upon her return to work in August 2011 had nothing to do with her injury. It was argued that although the employee had returned to work under doctor's restrictions, that those restrictions did not prevent the employee from performing her regular job duties. Instead, the loss of earnings was purely economic, because the employee worked a significant amount of overtime pre-injury that was no longer available to any employees.
Following testimony from various witnesses on the employee's job duties, the Workers' Compensation Judge denied the termination petition but granted the suspension petition, concluding that although the employee had some restrictions on her ability to work and some residual pain, the restrictions and the pain did not prevent her from performing her pre-injury job. The Workers' Compensation Appeals Board (WCAB) and the Commonwealth Court affirmed, explaining that the key is whether the employee's pre-injury job fits within the employee's restrictions, not whether the employee had restrictions imposed by a doctor.
Comment: The Donahay case does not present a new rule of law, but it highlights a very important point. When an employee returns to work with a wage loss, the questions are more complex than whether the employee was placed under restrictions and whether the employee has wage loss. Clearly, if an employee cannot return to her regular job without restrictions (has returned to work either to a modified job or to a regular job with modifications), then any loss of earnings, even if economically induced (like lack of overtime) will almost always result in partial disability benefits. However, if an employee is under restrictions but those restrictions do not prevent the employee from performing his or her pre-injury job, then the employee is not entitled to partial disability benefits.
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Jennifer R. Williams