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A claimant who accepts a buyout from the employer while on modified duty is entitled to a reinstatement of temporary total disability benefits.

April 1, 2010
John Polis v. WCAB (Verizon Pennsylvania, Inc.) and Verizon Pennsylvania, Inc. v. WCAB (Polis), 1549 C.D. 2009; 1602 C.D. 2009; filed February 5, 2010; by Judge Pellegrini

In this case, following the claimant's work-related left knee injury, he returned to work for the employer in a light duty capacity. Thereafter, the claimant had knee surgery and was released to return to work with restrictions. The claimant was later notified by the employer that his light-duty job was being eliminated, and the claimant was offered an Enhanced Income Security Plan ("EISP"), pursuant to a Collective Bargaining Agreement, which the claimant elected to take. The claimant filed a Petition to Reinstate his temporary total disability benefits. The only evidence presented was the claimant's testimony. The claimant said that he did not retire from his light-duty job, did not consider himself retired, and would still be working for the employer if his job had not been eliminated. The claimant said that because of his lack of options with the employer, including work within his restrictions, he agreed to the EISP. The EISP form indicated that the type of separation was a retirement. The claimant also received unemployment compensation benefits. The workers' compensation judge granted the reinstatement petition, and both parties appealed. The WCAB affirmed, and appeals were filed with the Commonwealth Court. The court rejected the employer's argument that the claimant's benefits should have been suspended since the situation was comparable to one where a claimant chose to leave the workplace and apply for a disability pension after being told that work within medical restrictions was available. In the court's view, this case involved the employer forcing the claimant to leave the workplace. The court also viewed the EISP as a buyout given to the claimant in consideration for the termination of his employment. Citing the Vista International Hotel v. WCAB (Daniels), 560 PA. 12, 742 A.2d 649 (Pa. Cmwlth. 2000) case, the court held that a claimant is entitled to the presumption that his loss of earning power is causally related to the continuing work injury when the claimant returns to work under a suspension with restrictions attributable to the work injury and is subsequently laid off. As for the claimant's appeal, the court held that the workers' compensation judge properly reinstated benefits as of the date the claimant's severance benefits were scheduled to end. Otherwise, with severance benefits, the claimant would be receiving more in compensation than he was entitled to under the Act.

Case Law Alert - 2nd Qtr 2010

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Francis X. Wickersham
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(610) 354-8263
fxwickersham@mdwcg.com
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(814) 480-7802
gjhabas@mdwcg.com

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