Powell, Zero, Mundy has represented injured workers for over a century and has a distinguished reputation throughout northeastern Pennsylvania for adhering to the highest standards in serving those injured on the job.

When an injured worker in Pennsylvania establishes an entitlement to workers’ compensation benefits, i.e., “temporary total disability benefits” or TTD, the employer’s workers’ comp insurance carrier may not stop paying these benefits at its whim or discretion, which is, of course, a tremendous advantage of the Pennsylvania’s workers’ compensation system.

In fact, unless the injured worker settles the case, or agrees that he or she has returned to gainful employment with compensation at or above pre-injury wages, there is little that an insurance carrier may do to stop paying the injured worker TTD benefits without an order of a Workers’ Compensation Judge (WCJ).

And this is not a clear option since an order of a WCJ may only be obtained in certain circumstances, such as when the insurance carrier proves the injured worker has fully recovered from the work injury, or that work is available within the injured worker’s physical capabilities.

Of course, insurance companies and their attorneys are always seeking new ways to stop paying TTD benefits. Recently, a trend seems to be developing where employers try to terminate benefits by alleging that an injured worker has voluntarily removed him or herself from the labor market. Proving this allegation allows the stoppage of TTD payments without the employer being required to demonstrate any availability or capacity to work.

In one case, a WCJ suspended TTD payments as of September 1, 2017, the date the injured worker testified that he had stopped looking for work. He appealed and The Workers’ Compensation Appeals Board (WCAB) reversed the WCJ on the issue of the suspension of benefits. The Board believed that the mere admission a worker was no longer looking for work did not rise to the level of a voluntary withdrawal from the labor market.

Upon further appeal by the employer and its insurance carrier, the WCAB’s decision was reversed based on the following:

“Here, Claimant unequivocally testified that he had stopped looking for work, in part due to his shoulder condition and in part due to the economics of his personal situation. Because Claimant acknowledged that there was work he could do, but he chose not to pursue it due to personal financial considerations, Employer was not required to present evidence of available work within Claimant’s restrictions or expert testimony regarding Claimant’s earning power.”

The apparent problem with this ruling is not any failure to align itself with current Pennsylvania case law, but the failure of Pennsylvania law itself on this issue. Why is an employer relieved of its burden to demonstrate job availability, regardless of whether the injured worker is looking for work? If there is no work available to an injured worker within his or her physical capabilities, why must the injured worker be required to continue to search fruitlessly? Truly, a harsh and unfair result for Pennsylvania workers.