New case law on allowing total disability benefits even when the injured employee is back to work

In Allegheny Power Service Corp. v. WCAB, the Pennsylvania Commonwealth Court ruled that the WCAB has discretion under the Workers' Compensation Act to award total disability benefits even when an injured worker is able to return to a job and earn wages.

In 1995, the injured worker suffered severe electrical burns when he came in contact with a charged electrical line. His right arm was amputated at the elbow and his left hand was badly damaged to the point of being almost useless.

The claimant eventually returned to light duty work at his normal wages so the insurance company stopped his total disability wage benefits. Claimant's counsel, though, filed a penalty petition contending that under Section 306(c)(23), Claimant should continue to receive total disability wage benefits despite him returning the work.

The workers' compensation judge determined that the matter was governed by section 306(c)(23) of the Workers’ Compensation Act (Act), which creates a statutory presumption of total disability for individuals who suffer specified bilateral losses: “Unless the board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability, to be compensated according to the provisions of [section 306(a) of the Act, 77 P.S. §511].” 77 P.S. §513(23) (emphasis added).

On appeal, the Employer argued that the WCAB erred in interpreting section 306(c)(23) of the Act as mandating an award of total disability benefits without regard to evidence of Claimant’s post-injury earning power. Specifically, the Employer argued that, because awards under section 306(a) are premised upon a loss of earning power, the principle that specific loss benefits are payable without regard to a claimant’s earning power is not applicable to awards under section 306(c)(23). The Commonwealth Court disagreed.

The Court held that a claimant who sustains an injury adjudged compensable under section 306(c) (specific loss) is not entitled to compensation beyond that provided by section 306(c), even though he may be totally disabled by his injury. Killian v. Heintz Div. Kelsey Hayes, 468 Pa. 200, 360 A.2d 620 (1976). It always has been recognized that the right to compensation under section 306(c) is measured by the extent of the injury, regardless of the degree of disability. Morrow v. James S. Murray & Sons, 7 A.2d 109 (Pa. Super. 1939).

In cases where there is a bi-lateral loss, the claimant's future earning power should not be considered. Also, the sole discretion lies with the WCAB and cannot be overturned on appeal. Thus, if the WCAB determined, as it did in this case, that the claimant should receive ongoing total disability benefits, despite working, then the appellate courts cannot overturn that decision.