Wallace Brewer vs. WCAB (EZ Payroll and Staffing Solutions); 337 C.D. 2012

WORKERS' COMPENSATION UPDATES

Issue: Did the WCJ err in denying Claimant indemnity benefits when Employer failed to issue a Notice of Ability to Return to Work following the work injury?

 

Background: Claimant, Wallace Brewer, was injured when a forklift pinned him against a conveyor belt. Claimant sought treatment from a panel provider, which included a drug test. The drug test was positive, and Claimant was terminated. Employer had a zero tolerance drug policy. Employer issued a Notice of Denial admitting that Claimant sustained an injury but denying disability. Claimant filed a Claim Petition.

 

The WCJ granted Claimant’s Claim Petition; however, Claimant was denied indemnity benefits, as his loss of wages was the result of his violation of Employer’s drug policy. Claimant appealed to the Workers’ Compensation Appeal Board, who affirmed the WCJ’s Decision. He, then, appealed to the Commonwealth Court arguing that his benefits could not be suspended because Employer never issued a Notice of Ability to Return to Work following the work injury. The Commonwealth Court affirmed the Decision of the WCJ noting that the Act only requires a Notice of Ability to Return to Work when there is a change in medical condition. Here, Claimant’s loss of wages was due to his own misconduct rather than the work injury.

 

Ruling: No, in this case, Claimant’s loss of wages was the result of his violation of Employer’s drug policy and not the work injury.

 

Practical Significance: Section 306(b)(3) of the Act, which addresses employer’s obligation to issue a Notice of Ability to Return to Work, is limited to modifications based on medical evidence received by the employer. An employer is not required to issue a Notice of Ability to Return to work when employer is alleging that Claimant’s loss of wages in unrelated to the work injury.