COMMONWEALTH COURT RULES CLAIMANT’S TESTIMONY ALONE NOT ENOUGH TO DEFEAT EMPLOYER’S MODIFICATION PETITION
Posted on October 26th, 2009
The Pennsylvania Commonwealth Court recently considered whether the testimony of an injured claimant could, without confirming medical testimony, support the denial of a petition to modify ongoing workers’ compensation benefits.
In World Kitchen Inc. v. WCAB (Rideout), — A.2d —-, 2009 WL 2926497, Pa.Cmwlth, No. 1789 C.D. 2008 (September 14, 2009), the Court considered employer’s petition to modify (reduce) the claimant’s weekly compensation benefits based on the opinion of employer’s physician that the claimant could perform full time sedentary work. The claimant had worked for employer for 16 years when she suffered a work related back injury in 2005. After being out of work for a year, the company’s doctor released claimant to full time sedentary duty, and the employer offered her a sedentary position within those restrictions. Claimant tried to perform the modified duty job but lost time due to her work injured back.
At the hearing before the Workers’ Compensation Judge, the employer presented evidence of the offer of modified work and testimony of the company doctor that claimant could perform the job offered on a full time basis. Claimant testified that after she returned to work, she was not able to work every day or had to leave early because of back pain. Claimant did not present any expert medical testimony. Both the WCJ and the Workers’ Compensation Appeal Board ruled that employer had to pay claimant benefits based on her actual loss of earnings (the difference between her preinjury average weekly wage and what she earned for the modified duty based on the hours actually worked).
The Commonwealth Court found that claimant’s testimony that she sometimes could not perform the work because her back hurt was inadequate to rebut employer’s evidence, stating that “a claimant’s subjective belief about her work abilities, which is not supported by medical restrictions imposed by a physician, is insufficient in a modification proceeding.” The modification was therefore based on what claimant would have earned in a full 40 hour week, regardless of how many hours she was actually able to work.
