Post-Injury Felony Conviction Not a Factor in Determining PA Employee’s Earning Power
A Pennsylvania WCJ need not consider non-work-related injury limitations that were the result of actions that occurred after the work-related injury as part of a Pennsylvania injured employee’s “residual productive skill” [see Section 306(b) of the state’s Workers’ Compensation Act (“the Act”)] in determining whether a position identified by an employer is appropriate and/or open and available, held the Commonwealth Court of Pennsylvania recently in Sadler v. Philadelphia Coca-Cola (Workers’ Comp. Appeal Bd.), 2022 Pa. Come. LEXIS 4 (Jan. 7, 2022). Accordingly, there was no error in the WCJ’s decision not to consider an injured employee’s post-injury conviction of a Class II felony. That the injured employee might not be hired by a security services company because of his criminal record—a vocational expert had identified several security guard positions as open and available—was not a determining factor under the statute, held the appellate court.
In a separate issue, the appellate court also held that Section 204(a) of the Act, which allows an employer to offset a portion of the Social Security retirement benefits received by an injured employee, was not unconstitutional.
Background
Claimant sustained various injuries in a work-related incident that occurred in July 2012. In relevant part, the employer filed a Modification Petition in April 2017, asserting that Claimant had a weekly earning capacity of $520 as of March 31, 2017. Claimant continued to maintain that he remained totally disabled. Subsequently, the employer issued an amended notice advising that an offset would be taken due to Claimant’s receipt of Social Security old age benefits. Claimant, inter alia, countered that the offset provision of the the Act was unconstitutional.
As part of its Modification Petition, the employer produced a report from a vocational rehabilitation consultant identifying five potential positions that Claimant could perform. One job was a full-time, light-duty position as a security guard attendant with a security services company that paid $13 per hour (i.e., $520 per week). The WCJ found that, based upon the consultant’s report, the employer met its burden of showing Claimant had an earning power of $520 per week, which was based on a 40-hour work week at the highest paid position available to Claimant. Accordingly, the WCJ granted the employer’s petitions. The Board affirmed, in relevant part.
Was Offset Provision Unconstitutional?
Claimant appealed on multiple issues. He contended, inter alia, that Section 204(a) of the Act—which allows the employer to offset 50 percent of Claimant’s Social Security retirement benefits against the employer’s obligation—violated the Equal Protection Clause of the Pennsylvania Constitution. Citing various decisions, including Caputo v. Workers’ Comp. Appeal Bd. (Commonwealth of Pa.), 34 A.3d 908, 919 (Pa. Cmwlth. 2012), and applying the rational basis test, the Court said the employment relationship was the basis for providing both workers’ compensation benefits and Social Security retirement benefits. The latter benefit is traceable to the Social Security tax contribution every employer makes toward its employees’ social security retirement.
The Court continued, stressing that the General Assembly recognized that the employer’s contribution was only partial by enacting a 50 percent offset rather than a dollar for dollar offset. While the 50 percent offset was not a perfect fit—a claimant might have a long work history with multiple employers, such that the last employer would benefit even though it was not the employer that made all of the contributions to the Social Security trust fund on behalf of the employee—the Court noted that Legislative classifications were not required to be perfect to pass constitutional muster. Considering the general fairness issues, the Court concluded that the WCJ did not err in denying Claimant’s petitions.
Claimant’s Status as a Class II Felon
Claimant also argued the WCJ erred in failing to consider his conviction of a Class II felony, and the resulting employment restrictions, which made some of the positions identified not actually open and available to Claimant, as part of Claimant’s “residual productive skill” [see Section 306(b)(2) of the Act]. He contended that such term should be read broadly so as to include factors other than a claimant’s physical restrictions associated with a work-related injury. In relevant part, Claimant cited to Kolenkiewicz v. Workers’ Compensation Appeal Board (SKF USA, Inc.), 730 A.2d 1054, 1057 (Pa. Cmwlth. 1999), in which Claimant contended the Court held that an employer had to show that a criminal conviction would not prevent a position from being available. Claimant added that the vocational rehabilitation consultant had acknowledged that the security guard positions were not appropriate given the conviction and that any position that required a background check was more likely than not unavailable to Claimant and, therefore, should not have been considered.
The Court noted the employer’s counter-argument: that Claimant’s conviction, which occurred after the work injury, was not relevant to Claimant’s residual productive skill and whether the jobs identified were open and available to Claimant.
Earning Power Under § 306(b)
The Court stressed that earning power under Section 306(b) was unmistakably based on the employer’s evidence of the claimant’s ability to engage in existing “substantial gainful employment” within his or her physical, medical, and vocational restrictions or skills, not on whether he or she actually receives a job offer. Here, said the Court, the WCJ found that the employer met its burden of proof based on the consultant’s credited expert opinion that Claimant had an earning power of $520 per week, which was based on a 40-hour work week at the highest paid position available to Claimant—the security services position that was vocationally appropriate and open and available. The question before the Court was what role, if any, Claimant’s Class II felony conviction plays in determining whether the employer met its burden of proving that there were appropriate, available jobs within Claimant’s physical, medical, and vocational restrictions or skills.
Citing Markle v. Workmen’s Comp. Appeal Bd. (Caterpillar Tractor Co.), 541 Pa. 148, 661 A.2d 1355, 1358 (Pa. 1995) and Schneider, Inc. v. Workers’ Compensation Appeal Board (Bey), 560 Pa. 608, 747 A.2d 845 (Pa. 2000), the Court found that requiring the WCJ to consider non-work-related injury limitations that were the result of actions that occurred after the work-related injury as part of Claimant’s “residual productive skill” in determining whether a position identified by an employer is appropriate and/or open and available is inconsistent with the caselaw and the Act’s intent. Accordingly, there was no error in the WCJ’s decision not to do so here.