It has been well settled since the Supreme Court's decision in Kachinski v. Workmen's Compensation Appeal Board (VEPCO Construction), 516 Pa. 240, 532 A.2d 374 (Pa. 1987), that, in Pennsylvania, an employer that seeks to modify an injured worker's benefits on the basis that he or she has recovered some or all of his or her ability must first produce medical evidence of a change in condition.

The employer must then produce evidence of a referral (or referrals) to an open job (or jobs) that fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc. The injured worker must then demonstrate that he or she has in good faith followed through on the job referral.

If the referral fails to result in a job, then the injured worker's benefits should continue.

This Kachinski rule has, in practice, become an indispensable part of Pennsylvania's workers' compensation law. Indeed, the standard was adopted consistent with the act's humanitarian objectives, in that an employer must do more than simply pay employees benefits for work-related injuries. In order to make the employee whole, the employer must try to reintroduce into the workforce those employees injured while pursuing the employer's interests.

Nevertheless, the courts have allowed deviation from this rule in very limited circumstances, such as an employee's incarceration, because the employee would literally have no ability to respond to a job offer regardless of his or her physical condition.

Another exception, intended to also be very limited, was created by the state Supreme Court in Schneider v. Workers' Compensation Appeal Board (Bey), 560 Pa. 608 (Pa. 2000), when benefits were suspended to an injured worker who, while receiving workers' compensation benefits for an injury at work, had the misfortune of sustaining a nonwork-related head trauma, leaving him totally and permanently disabled from any level of employment.

Of significance, in that matter, there was no dispute that the injured worker would never be able to return to any level of employment because of his nonwork-related injuries.

The significance of that factor was underscored by the court, which noted that it did not intend to create an alternative standard for an employer seeking a suspension of benefits that undermined its decision in Kachinski. The court did not wish to create a standard whereby an employer could point to a nonwork-related factor as causing the employee's loss of earnings.

Establishing job availability pursuant to Kachinski remains the proper standard to govern situations where the employer seeks to prove that an employee's loss of earnings is attributable to a nonwork-related factor. If an employer can establish that there is a job available that complies with an employee's remaining work-related physical injuries, and the employee fails to return to or accept this position because of nonwork-related factors, the employer has proven that the employee's loss of earnings is attributable to something other than the work-related injury.

Therefore, the mere existence of nonwork-related injuries that may be disabling should not alleviate an employer from liability to offer a position to an injured worker who may have been released to return to work in some capacity as it relates to the work injuries.

Indeed, in accordance with the Supreme Court's explanation in Schneider, in order to honor the act's humanitarian objective, the employer's obligation to offer a position to a worker injured in its employ should only be alleviated in the strictest settings — namely, when the parties can agree that there is no possibility of the employee returning to the position offered because of nonwork-related reasons (i.e., incarceration, severe traumatic brain injury, etc.)

The Commonwealth Court's recent opinion in Southeastern Pennsylvania Transportation Authority v. Workers' Compensation Appeal Board (Cunningham), 2013 Pa. Commw. LEXIS 261 (Pa. Commw. Ct. July 12, 2013), may be a sign that the court is becoming less willing to enforce the employer's previously strict requirement to make the employee whole by trying to reintroduce into the workforce those employees injured while pursuing the employer's interests.

In Cunningham, SEPTA, one of the region's largest employers with an extensive light-duty program, was relieved of its obligation to make a job offer to one of its injured employees, who, according to SEPTA's physician, had recovered some ability to work. Notably, the parties had resolved the matter by way of a compromise and release agreement but SEPTA sought this decision in order to obtain recovery from the Supersedeas Fund.

After suffering from a work-related right knee injury, James Cunningham had the misfortune of being involved in an accident that resulted in injuries to his left knee, lower back and left hand. Of significance, in its opinion, the Commonwealth Court noted that Cunningham's nonwork-related injuries were not as severe as the claimant's injuries in Schneider. Of further significance, there was also no mention in the opinion of any agreement by the parties that Cunningham's nonwork-related injuries wholly prevented him from returning to any form of employment.

Despite this, the court found that Cunningham was totally disabled because of nonwork-related injuries and concluded that it would be unreasonable to require the employer to present evidence of available jobs.

Per the opinion, this was not a situation involving a traumatic brain injury or incarceration or other instance where there was literally no chance of the employee returning to any offered position. SEPTA did conduct a labor market survey to identify positions in lieu of making an offer of employment. Although the suspension of benefits in Cunningham was based in part upon the employer's efforts to locate a position for Cunningham not within its own walls, the court also found that it was "unreasonable" to require the employer to present evidence of available jobs based upon Schneider.

While this case may not in and of itself dramatically change the legal landscape, it raises concerns that the application of Schneider as a means to avoid offering any kind of position to an injured employee could become more prevalent in the future and that there may be a relaxing of the Schneider court's position that the issue of nonwork-related conditions should be considered only after it has been established that there is a job available that complies with an employee's remaining work-related physical injuries.

In order to achieve the humanitarian purposes of the act and its liberal interpretation in favor of injured workers, it must be remembered that even in Schneider, as the court was carving out an exception to the Kachinski rule, it noted the importance of keeping Kachinski as a rule in general to ensure that employers attempt to make the employee whole. 

Samuel H. Pond is managing partner at Pond Lehocky Stern Giordano and has been practicing workers' compensation for the past 28 years.

Alexis C. Ouseley is an associate at the firm, where she focuses her practice exclusively on workers' compensation matters.