October 19, 2010

Illiteracy has its Rewards

When a laborer is unable to perform physical work, the options are limited, not only for the worker, but for the workers comp system as well. Meet Pennsylvania's Sam Muzzicato. He came to America from his native Italy in 1969. He had only four years of schooling in Italy. He immediately went to work in America and continued working until January 2007, when he injured his back while employed as a laborer for Strow's Plumbing and Heating Company.

Strow's insurer hired a vocational expert to determine Sam's earning power. The expert came up with five possible jobs in the immediate labor market:
- Cashier at a Jiffy Lube
- Teller at a local casino
- Dispatcher for a trucking company
- A customer sales rep
- Front desk clerk in a hotel

Do you see a common denominator in all of these jobs? Some degree of computer literacy is needed. The Administrative Law Judge dismissed the first four jobs as not within Sam's capabilities, but for unknown reasons determined that he could perform the desk clerk position. With this theoretical job available, the ALJ approved a reduction in Sam's weekly indemnity benefit.

Here is the theory in PA law behind the wage reduction:

"[A]n employer may seek modification of a claimant's benefits by either offering the claimant a specific job that it has available that he is capable of performing or establishing earning power through expert opinion evidence."

Sam appealed to the Commonwealth Court, where the judges determined that the inclusion of the single job by the ALJ was capricious, and that Sam was incapable of performing any of the jobs recommended by the voc expert. Sam, in other words, has few, if any, transferable skills. When his body broke down, he had nothing to bring to the marketplace. As a result, his full indemnity will continue.

Broken Bodies
Sam's story is by no means unique. Many of the immigrants who came to this country to find work had limited education in their native lands. Once here, they were too busy or too indifferent to pursue educational goals. They gained a foothold through hard work, perhaps shifting educational goals onto their children. Now as they enter the waning years of employment, their bodies break down. Where once they recovered quickly from workplace injuries, now the pain lingers, eroding their capacity to work. And once out of work, there is literally no place to go.

What lies ahead for the Sam Muzzicatos of the world? While it sounds odd to say it, Sam is lucky that he was injured at work. His back problems will be treated through the comp system for the foreseeable future. He will collect roughly 2/3 of his average weekly wage, tax free, at least until his eligibility for temporary total benefits runs out. After that, he will probably qualify for some form of permanent partial award. Sam, in other words, will transition rather smoothly into retirement through the generosity of the workers comp system.

Strow's Plumbing and Heating will foot the bill through the experience rating process for three years. After that, the insurer will be on the hook for whatever is owed to Sam. Is this fair? Does it make sense? Is Sam being rewarded for his failure over the years to improve his skills through education? Ironically, if Sam did have transferable skills, his benefits would have been reduced, despite the fact that he might not be able to find work in this troubled economy. Would that have been fair? Indeed, in the world of workers comp, as judges parse the letter of the law and and employers struggle to pay the bills and injured workers battle to survive, is fairness even an issue under consideration?

| 1 Comment

1 Comment

Thoughtful post. However, note that in PA total disability is not time-limited as suggested. Also, we are a wage-loss state, not a PPD state. Indeed, we do not have PPD awards as suggested.

For an employer to reduce a claimant from total disability it must show full recovery, provide an actual light work job, or retain a vocational expert to prove earning power (as in the facts of the case.) The other option is a compromise settlement with full or partial release. The upshot of all this is that the employee's future benefit rights may indeed be considerable.

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This page contains a single entry by Jon Coppelman published on October 19, 2010 2:48 PM.

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