Return to Work—A Forgotten Aspect of Workers Compensation

January 2002

Jim Pocius examines trends and case law involving returning injured workers to productive lives after industrial injuries, and the importance of doing so for both employers and claimants.

by Jim Pocius
Marshall, Dennehey, Warner, Coleman & Goggin

When the first Constitutional Workers' Compensation Act was passed by Wisconsin in 1911, the lawmakers of the day were specifically concerned about providing "no fault" compensation for workers compensation injuries. Since 1911, most attention with regard to state workers compensation laws has been directed at the schedule of benefits or the ever-expanding nature of injuries covered by workers compensation.

We have seen many articles discussing the merits of repetitive trauma claims, mental injury claims, and diseases such as asthma or heart attacks in workers compensation. We have also seen many articles regarding the liberal benefits allowed in certain states regarding workers compensation. However, there is one aspect of workers compensation that has largely been ignored: returning the injured worker to productive work, the subject of this article.

Rehabilitation and Workers Compensation Laws

One of the main purposes of workers compensation is to aid the worker in returning to a productive job. Early workers compensation laws did not provide for employee rehabilitation. However, since 1911, most states have provided for some rehabilitation within their workers compensation laws.

Some states, like California, provide for a certain number of weeks of rehabilitation and a limited amount of costs and training. After this training is completed, the worker is considered rehabilitated. This limits the liability of the employer to find another job for the claimant, and does not necessarily return the worker to productive employment.

In some other states, like New Jersey, rehabilitation is a minor part of the law. These states are considered defined-benefit states. A worker is paid for temporary total disability. However, as soon as that temporary disability resolves itself into a percentage of body loss, the employer is able to make a lump-sum payment and close the case whether the worker can return to work or not.

In each of these first two examples, the employer is largely absolved from making sure that the worker is able to return to a productive job. This may result in a further burden on the unemployment or welfare systems of these states. If a worker does not have workers compensation benefits, and the worker does not have a job, he or she in some way becomes a ward of the state or federal government.

Another Option

While these systems work within their parameters and encourage workers to return to work by limiting benefits, there is a third alternative which more fulfills the humanitarian purpose of workers compensation laws. A third group of states of which Pennsylvania is an example, operate on a system of loss of earning power. Once a worker is injured, his workers compensation benefits will continue for life unless he is proved to have an earning power.

A proof of earning power can be accomplished in many ways. Initially, Pennsylvania requires that the time of injury employer offer a job to the injured employee if one is available within his physical restrictions. If this is not possible, Pennsylvania requires that rehabilitation efforts begin. These rehabilitation efforts include finding positions that are available within the restrictions of the injured worker.

In addition, job surveys are conducted, and the claimant is notified of these job surveys. Work must be found within the physical restrictions of the claimant.

Case Law

Recently, the Pennsylvania Supreme Court has affirmed these concepts. By issuing these two decisions, the court curbed a disturbing trend to reduce the responsibilities of employers to return workers to employment. In 1995 the Commonwealth Court in Pennsylvania, decided Harlee v W.C.A.B., 658 A2d 766 (Pa 1995). In this decision, the court indicated that the employer did not have to present any work availability evidence when evidence was presented that the claimant had recovered sufficiently to resume his pre-injury work duties without restrictions. In essence, in this decision the court absolved the employer from providing job availability in any situation where a worker was able to physically perform his old job without restrictions.

The Pennsylvania Supreme Court recently overturned this decision in Landmark Constructors, Inc. and SWIF v W.C.A.B., 0068 WD Appeal Docket (1999, Supreme Court Pa). In Landmark Constructors, the employer had filed a petition to terminate all workers compensation benefits. In support of this petition, the employer presented only medical testimony. The medical expert gave the opinion that the claimant had sufficiently recovered to return to his work as a pipe fitter without restrictions. However, the claimant had not returned to work.

The Pennsylvania Supreme Court reviewed the evidence and indicated that the employer had the burden to present work availability evidence since the claimant had not fully recovered from his work injury. The court reiterated that Pennsylvania is a wage loss state, and each case has to be analyzed to determine how an injury affects a claimant's earning capacity. Thus, the court held that if a claimant was not fully recovered from his work injury and had not returned to work, benefits must continue. This case clearly indicates that the Pennsylvania Supreme Court will not allow modification of benefits or suspension of benefits without job availability being proven.

Conclusion

In summary, workers compensation acts are humanitarian acts and must be considered so. Neither employers nor claimants should forget about the importance of returning injured workers to productive lives after industrial injuries. If all parties keep this in mind, there will be better production and fewer long-term costs associated with workers compensation injuries.

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