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Employers have the power to seek modification or suspension of workers’ compensation benefits even during the pendency of the original claim petition, the Pennsylvania Commonwealth Court has twice ruled in recent weeks. One of the cases also held for the first time that the so-called Kachinski standard survived the 1996 amendments to the Workers’ Compensation Act. In Montgomery Hospital v. WCAB, Senior Judge Joseph F. McCloskey said that employers have the right — during the initial claims adjudication — to present evidence warranting modification or even termination of workers’ compensation benefits. While a pair of 1999 Commonwealth Court decisions said an injured worker had no responsibility to look at alternative work until their injury was recognized as compensable, the unanimous Montgomery Hospital court said a state supreme court decision had effectively overruled those rulings. The three-judge panel said that a workers’ compensation judge was wrong in refusing to consider modification evidence proffered by an employer while a claimant’s benefits eligibility was being decided. In Montgomery Hospital, claimant Christopher Armstrong said he sustained a lower back injury while employed as a housekeeper. He suffered the injury while using the restroom on a brief break. The employer first said that Armstrong’s injury was not work-related since it occurred during a bathroom break and not while the employee was carrying out his job function. McCloskey dismissed that argument, stating that under the “personal comfort” doctrine, a worker attending to personal needs is still acting within the course and scope of employment. The hospital also argued that the workers’ compensation judge was wrong to classify Armstrong’s back injury, which prevented him from lifting heavy weights or standing for extended periods of time, as a total disability. McCloskey agreed with the employer on this point, holding that the WCJ had a responsibility to look into the possibility of non-total disability (and therefore lower compensation benefits) upon the presentation of evidence that a modified position was available within the claimant’s medical restrictions. Under Vista International Hotel v. WCAB, the state supreme court held that employers have the right to bring into court evidence that would support modification, suspension or termination of benefits — even during the adjudication. But the claimant pointed to two 1999 Commonwealth Court opinions, Hill v. WCAB and Smith v. WCAB, for the proposition that a claimant has no obligation to pursue job referrals until his injury has been recognized as compensable. For that reason, the claimant argued, any modification evidence was premature. The Commonwealth Court sided with the employer and said that the supreme court’s Vista decision “effectively overrules” the twin decisions in Hill and Smith. “In practical terms, under the rationale of Hill and Smith, we can imagine no scenario where an employer could ever satisfy its burden to warrant a modification/suspension/termination of a claimant’s benefits during the course of a protracted claim proceeding,” McCloskey wrote. Even though Vista opened the door to modification evidence, such as the availability of alternative work assignments, that evidence would have no practical effect if Hill and Smith remained the law, the court said. That is because the two 1999 cases said there was no obligation for claimants to follow through on job referrals during the initial consideration of their case. “The ramifications of these holdings are impractical, as there is no motivation for medically cleared claimants to accept job referrals until such time as litigation is concluded,” McCloskey said. Because of this conflict with the supreme court ruling in Vista, Hill and Smith had to go, the court concluded. Joining McCloskey’s opinion in Montgomery Hospital was Judge Bernard L. McGinley. Senior Judge Joseph T. Doyle wrote a concurring opinion but did not differ from McCloskey’s ruling on the main issues in the case. One week before Montgomery Hospital was decided, in Darrall v. WCAB, another Commonwealth Court panel said that a workers’ compensation judge was correct in relying on Vista. However, unlike the Montgomery Hospital court, the Darrall court, led by Senior Judge Jim Flaherty, did not say that Hill and Smith had been overruled. But Vista made it clear that the state supreme court wanted to empower workers’ compensation judges to modify or suspend benefits based on the offer of a job by the employer, even though the original claim petition is still the subject of litigation. In Darrall, the employer, the H.J. Heinz Co., offered an employee a different job after the worker sustained ear and head injuries when she was struck by a machine at the Heinz plant. The Darrall court concluded that the workers’ compensation judge was correct to hear the employers’ claim that there was work available for the claimant, but was wrong to suspend benefits before insisting that the employer present more evidence as to the suitability of the lighter-duty job. ‘KACHINSKI’ STANDARD Interpreting the employers’ right to seek modification under the Act 57 amendments that were enacted in 1996, the Darrall court said that the statute did not get rid of pre-1996 case law holding that it is the employer’s burden to provide medical evidence that the claimant could perform the job and vocational evidence detailing the level of exertion required for the job. Flaherty said that “the burden of proof is on the employer to show that the claimant’s condition has changed and that the claimant has been referred to a … job that he is capable of performing.” When that burden is satisfied, it is up to the claimant to respond to the job offer in good faith. The burden, stated in a 1987 case called Kachinski v. WCAB, still has relevance even in the climate created by the Act 57 amendments, which were designed by the Tom Ridge administration to reduce workers’ compensation costs in Pennsylvania. A job offer that satisfies Kachinski effects a modification of workers’ compensation benefits payable to an injured worker. In Montgomery Hospital, the employer was represented by Edward Ross Carpenter Jr. of Marshall Dennehey in Philadelphia. Armstrong was represented by Halmon L. Banks III of Martin Banks in Philadelphia. In Darrall, the claimant was represented by Joseph A. Fricker Jr. and H.J. Heinz was represented by James S. Ehrman of Tighe Evan in Pittsburgh.

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