Landmark Constructors, Inc. v. WCAB (Costello)

In Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), 560 Pa. 618, 747 A.2d 850 (2000), the Supreme Court rejected this Court's determination that "where a claimant is capable of returning to his or her pre-injury job without restrictions, employer is entitled to a suspension of benefits even though employer has not established job availability." 560 Pa. at 622, 747 A.2d at 852 (quoting Landmark Constructors, Inc. v. Workers' Compensation Appeal Board (Costello), No. 2393 C.D. 1997, slip. op. at 4 (Pa. Cmwlth., Filed Oct. 14, 1998).) In reversing that determination, our Supreme Court stated as follows: This Court in Harle. . . did not need to focus on the job availability requirement of Kachinski because job availability was not at issue. The very distinct issue before the Court was whether a residually injured employee who returns to identical employment should receive partial disability benefits because his wages are less in his current employment. . . . In Harle, the employee's lost wages were not attributable to his work-related injury because he was performing an identical job. Thus, because Harle's loss of earnings was a result of factors other than his work injury, i.e., the economic reality that his previous employer went out of business, we held that awarding partial disability benefits under the facts of that case would be improper. The holding of Harle is founded on the employee's return to a position identical to his pre-injury position. To read Harle to allow for the modification of benefits simply upon a showing that an employee can return to his previous position without restriction is inappropriate. Demonstrating that an employee can return to his or her pre-injury position is quite different from demonstrating that an employee did return to a position identical to his or her pre-injury position. The second showing establishes actual job availability, but the first does not. Furthermore, to read Harle as allowing for modification of benefits simply upon a showing that an employee can return to his previous position without restriction would obliterate our seminal decision in Kachinski and would undermine the employer's obligation under the Act. The Harle decision did nothing to affect the Kachinski guidelines, but merely recognized that the employer need not show job availability when the employee actually returns to work. In addition, permitting an employer to suspend benefits simply upon a showing that an employee can return to his or her previous job without restriction would relieve the employer of any obligation to reintroduce an injured worker into the workforce, contrary to the remedial purpose of the Act. Id. at 630-31, 747 A.2d at 857. The Supreme Court explained that, inasmuch as "disability" is defined as loss of earning power attributable to the work injury, job availability is the standard by which an employer must establish that a claimant's disability has ceased or decreased. Id. at 625, 747 A.2d at 854.