Claimant working a modified-duty position at regular wages with pre-injury employer, who later voluntarily accepts a lower paying job created for her by her pre-injury employer, suffers a loss of earning power caused by the work injury.

After her work injury, the claimant was released to work-light duty. She did not experience any time off from work following the injury, and she returned to a modified-duty position with the employer in the pre-injury Telemetry Unit with no loss of wages. In February 2013, while the claimant was working the modified-duty Telemetry RN job, in addition to a job in the employer’s nursing office, the employer created a permanent, available position in their Care Management Department and offered it to the claimant. The claimant was not forced to leave her modified-duty job, nor was she required to stop working that job by her treating physician. She accepted the job voluntarily, even though it paid less than her pre-injury average weekly wage. Her attempts to return to her pre-injury Telemetry RN position were unsuccessful. Therefore, the Worker’s Compensation Judge granted the claim petition and denied the termination petition.

The employer appealed to the Worker’s Compensation Appeal Board, which affirmed. The employer then appealed to the Commonwealth Court, arguing that the testimony of the claimant’s medical expert confirmed that the claimant was capable of performing the light-duty position made available to her by the employer and that she never testified that her restrictions due to the work injury forced her to switch to the permanent position in the Care Management Department. The court considered the issue of the effect of the claimant’s voluntary acceptance of the permanent Care Management position and whether that resulted in a loss of earning power attributable to the her work injury. The court concluded that it did and dismissed the employer’s appeal.

The court pointed out that the claimant did not seek out and apply for the position and noted that the employer specifically created the job and offered it to the claimant. The court said that they could not ignore the fact that the employer, on its own, created and offered the claimant a permanent light-duty position within her restrictions at a loss of earnings, for which it claimed no liability. The court viewed the employer’s actions as an attempt to evade the payment of benefits by creating and offering a permanent, lower-paying position that was within the restrictions of the claimant’s work injuries.

^{Case Law Alerts, 4th Quarter, October 2017}

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