Edwards v. Workers' Compensation Appeal Board

FRIEDMAN, Judge,

Concurring.

I concur with the result reached by the majority. However, I believe that the following statement could be misleading:

[T]he only relevant issue in deciding whether the claimant’s benefits must be suspended under Section 413 of the Workers’ Compensation Act 1 .... is whether the claimant’s loss of earnings was no longer the result of the work injury; if the claimant’s loss of earnings is related to a factor other than the work injury, the claimant’s benefits must be suspended.

(Majority op. at 808.) If the claimant’s loss of earnings is related to the claimant’s discharge for misconduct, it may be relevant to examine whether the employer’s discharge of the claimant was in good faith or was motivated only by a desire to avoid paying workers’ compensation benefits. Vista International Hotel v. Workmen’s Compensation Appeal Board (Daniels), 560 Pa. 12 , 742 A.2d 649 (1999).

In United Parcel Service v. Workmen’s Compensation Appeal Board (Portanova), 140 Pa.Cmwlth. 626 , 594 A.2d 829, 832 (1991), this court held that where “a claimant is discharged because of misconduct which occurred, not only prior to the injury, but also prior to the payment of benefits and the creation of a light-duty position, a claimant’s loss of earnings shall be deemed to have resulted from a disability due to injury.” In other words, in United Parcel, this court examined the facts and concluded that the employer’s discharge of the claimant for misconduct was merely an attempt to avoid the payment of workers! compensation benefits to the claimant, suggesting that the claimant was not truly at fault with respect to the discharge.

The majority quotes the dissenting opinion in United Parcel and thereafter suggests that the majority opinion has been overruled by cases such as Hertz-Penske Truck Leasing Company v. Workmen’s Compensation Appeal Board (Bowers), 546 Pa. 257 , 684 A.2d 547 (1996). (Majority op. at 807-08.) However, in Vista International, 560 Pa. at 25-26 , 742 A.2d at 656 (emphasis added), our supreme court stated:

Hertz-Penske does not stand for the proposition .... that fault is never relevant in a workers’ compensation proceeding. Rather, it holds that fault is not generally relevant to the initial assessment of whether the claimant’s burden of establishing a loss of earnings capacity attributable to a work-related injury has been satisfied. 2

If the court’s initial assessment is that the claimant’s loss of earnings is a result of his discharge for misconduct, it is relevant to examine next whether the claimant was truly at fault or whether the employer was simply trying to avoid paying the claimant *810 workers’ compensation benefits. Vista International.

Here, there is no question that the claimant was truly at fault when the employer discharged him. Indeed, the claimant stipulated to the authenticity of the positive drug screening test result. Accordingly, like the majority, I would affirm the suspension of the claimant’s benefits.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.

. The court explicitly rejected the employer’s view of Hertz-Penske, which was that "an employer may achieve a suspension of workers’ compensation benefits at any time following the occurrence of a disability by merely terminating the employee, without any fault-related assessment.” Vista International, 560 Pa. at 26 , 742 A.2d at 657 . The court explained that such an "approach would require the suspension of benefits in a broad array of cases involving involuntary terminations that occur due to no fault of the claimant, for example, in circumstances involving plant closings.” Id. at 27 , 742 A.2d at 657 .