Employers Must Produce Evidence Of Job Availability Even If Injured Worker Is Released To Full Duty
We often get telephone calls from injured workers complaining that the workers' compensation insurance carrier has threatened to suspend their benefits because the company doctor has released them back to work without restrictions even though the employer has not called the injured worker back to work. As general rule, a workers' compensation insurance carrier is not entitled to a suspension of benefits simply because a doctor has released the injured worker back to work unless the insurance carrier also produces evidence of job availability.
This principle was recently reaffirmed by the Commonwealth Court in Consol Pa Coal Company - Enlow Fork Mine v. WCAB (Whitfield), No. 971 C.D. 2008 (March 10, 2009). In the Consol case, the injured worker suffered a fractured left forearm on April 30, 2005, which Consol accepted as work injury by issuing a Notice of Compensation Payable. On August 10, 2006, the injured worker's treating physician, Dr. Schmidt, released him back to work with no restrictions, with the caveat that he would re-evaluate him if he encountered any problems after he returned to work. The Claimant testified that he did not believe that he was able to return to work and that he did not believe that his position was available because Consol maintained a policy of terminating employees who were off work for more than one year. Consol did not dispute that Claimant's job was no longer available but argued that it was entitled to a suspension of benefits because the Claimant's loss of earning power was no longer attributable to the work injury since Dr. Schmidt had released Claimant to full duty work without restrictions. Under these circumstances, Consol argued on appeal to Commonwealth Court that it should not be required to produce evidence of job availability.
Commonwealth Court flatly rejected Consol's argument and held that where the injured worker had not returned to work, the employer is not entitled to a suspension of benefits unless it also produces evidence of job availability. In reaching its decision, the Court distinguished the facts presented in the Consol case from a prior decision in which the Pennsylvania Supreme Court held that the employer was entitled to a suspension of benefits where the injured worker returned to his pre-injury job with no restrictions and then lost his job when the plant closed. Under those narrow circumstances, the employer is entitled to a supsension of benefits since the injured worker's wage loss cannot be attributed to the work injury.
Thus, except for a few rare exceptions, an employer is not entitled to a suspension of benefits simply because a treating physician has released an injured worker back to work without restrictions. The employer still has the burden of producing evidence of job availability. The employer can meet this burden by producing evidence that it has offered suitable employment to the injured worker or by evidence establishing that the injured worker has the ability to secure other suitable employment that provides equal or greater compensation.
