Think Before You Resign

In Keller v. Workers’ Compensation Appeal Board (UPMC Presbyterian Shadyside), 2014 Pa. Commw. LEXIS 571 (Pa. Commw. Ct. Dec. 15, 2014), the claimant sustained a work-related injury in the form of a fracture of her right wrist on November 24, 2006, during the course and scope of her employment as a primary nurse care coordinator. At the time of the injury, the claimant had concurrent employment with two other employers. She worked for the University of Pittsburgh (Pitt) as a part-time clinical instructor and for Mon Valley Hospital (Mon) as a staff nurse in the emergency room. The wages earned from her concurrent employers were added into her average weekly wage.

The claimant returned to modified work with UPMC Presbyterian in May 2007, but she was not physically capable of returning to either of her concurrent jobs because of the direct patient care involved. The claimant continued working for UPMC Presbyterian through July 9, 2007, at which time she quit and began working for Carlow University (Carlow) at a lower wage. In October 2007, the claimant returned to work with Mon in a modified-duty position with restrictions. The claimant was not able to return to her other position with Pitt.

The UPMC Presbyterian filed a suspension petition that alleged that the claimant’s earnings from Pitt should be excluded from the calculation of her average weekly wage because of her voluntary resignation. On November 4, 2006, prior to the work injury, the claimant had advised Pitt, via email, that she intended to resign as of December 31, 2006, to go back to school and earn her Masters in Nursing. The employer argued that this email correspondence meant that the claimant should not receive compensation for any ongoing wage loss with regard to the job at Pitt.

The Workers’ Compensation Judge denied the employer’s suspension petition, finding that the claimant had not voluntarily removed herself from an available work position with the employer. In so finding, the Judge considered correspondence from the claimant to the employer dated August 2, 2006, in which the claimant indicated that she was resigning from her position as a full-time clinical instructor, but that she was making herself available for continued work on a part-time basis. Further correspondence indicates that a part-time position was offered to her, and that she was working as a part-time instructor at the time of her November 24, 2006, injury. Based upon the evidence, the Judge found that, in calculating the temporary partial disability benefits owed, there was no basis to exclude the claimant’s concurrent employment with Pitt. As such, the Judge found that the claimant was due partial disability benefits for both of the two concurrent jobs that she could no longer perform.

The employer appealed to the Workers’ Compensation Board (Board), which affirmed the decision with an importation modification. The Board determined that, because the claimant quit the job at Pitt effective December 31, 2006, no partial disability benefits should be payable relative to those wages as that loss in earnings was not related to the injury.

The claimant appealed the Board’s decision to the Commonwealth Court of Pennsylvania. The claimant contended that the Board erred when it modified the Judge’s order and determined that the claimant’s pre-injury wages at Pitt should not be included in calculating her post-injury partial disability benefits. The claimant acknowledged that she sent the employer (Pitt) email correspondence on August 2, 2006, and intended to resign on December 31, 2006, but argued that her unavailability was temporary because she would have been available to work for Pitt again in the fall of 2007. The claimant further argued that her position at Pitt would have been available to her in the fall if not for her work injury. The employer argued that when the claimant resigned from her employment with Pitt prior to her work injury, she did so without the guarantee of being rehired in the future.

In rendering its decision, the Commonwealth Court relied on the decision in Inglis House v. W.C.A.B. (Reedy), 634 A.2d 592 (Pa. 1993). In Inglis, the Supreme Court of Pennsylvania had decided that Section 413 of the Act, 77 P.S. § 772, allows an employer to suspend workers’ compensation benefits when an employee quits voluntarily because the “[e]mployee’s loss of earnings was not caused by her injury, but by her voluntary decision to abandon employment.”

In the present case, the Commonwealth Court noted that the claimant’s employment would have ended in April 2007 had she not resigned as of December 31, 2006. The Commonwealth Court found that the claimant’s decision to resign from employment with Pitt had no relationship to her work injury because the claimant did not sign a new contract for the following year and her future employment at Pitt was nonexistent. As such, the Commonwealth Court affirmed the Board’s decision and found that it had properly calculated the claimant’s average weekly wage to include only UPMC and Mon, and not Pitt, as of the date of her resignation.

*Gregory is an associate in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.1170 or gmrosatelli@mdwcg.com.

^{Defense Digest, Vol. 21, No. 1, March 2015}

^{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}