Injured Worker Entitled to Wage Loss Benefits Due to Surgery, Even Though Terminated
January 14, 2020
By John W. Zatkos, Esq.
In Yarkosky v. Dynamet, Inc., 34 PAWCLR 170 (Pa. WCAB 2019), the Workers’ Compensation Appeals Board (WCAB) held that the Workers’ Compensation Judge (WCJ) erred in failing to award the injured worker’s wage loss benefits when the terminated injured worker underwent work-related left shoulder surgery which subsequently disabled him.
Mr. Yarkosky had surgery for a work-related injury on April 20, 2016, which ended up disabling him. On March 1, 2016, he was terminated due to intoxication/drug use. The employer alleged that the injured worker’s wage loss was due to his termination from work due to a positive drug test. The worker argued the wage loss was due to the surgery which rendered him disabled.
Here, the WCAB weighed the question – was the loss of earnings caused by the work injury or the termination for misconduct? It falls on the injured worker to prove each element of the claim entitling him or her to compensation benefits and prove that the work-related disability exists and is not due to any other matters unrelated to the work injury. The WCAB ultimately found that the lost wages were due to the surgery and not due to the termination; therefore, the worker was still entitled to benefits.
What does this mean? Where the injured worker’s wage loss is due to surgery, which is reasonable and necessary treatment for an on the job injury, he or she is entitled to wage loss benefits even if terminated due to misconduct. This case demonstrates that it is very important to evaluate whether the true cause for loss of earnings is a) either termination for cause or b) a violation of the employment contract requiring the necessary steps that led up to the termination or is it the injury?
If you have a Workers’ Compensation claim, contact us or call (412) 338-1153.