By Steven Stamps, of The Ricky Green Law Firm
The Commonwealth Court of Pennsylvania has reversed an order of the Pennsylvania Workers’ Compensation Appeal Board (Board) which affirmed a Workers’ Compensation Judge’s (WCJ) decision denying a petition from the Philadelphia Eagles which requested the modify the workers’ compensation benefits to a former player.
Antoine Harris was signed by the Philadelphia Eagles to play safety on July 29, 2010. Harris had played college football at Louisville before signing with the Tennessee Titans as an undrafted free agent in 2005. Following the 2006 season, Harris signed with the Atlanta Falcons where he spent the 2007, 2008, and 2009 seasons. After signing with the Eagles, Harris suffered a Lisfranc sprain in a preseason game against the Jacksonville Jaguars. Harris was placed on injured reserve and did not return to the NFL.
The Eagles acknowledged that Harris had sustained a compensable injury to his right foot. A WCJ awarded Harris total disability benefits at a rate of $845 a week. Six months after the award, the Eagles filed a petition to modify benefits, arguing that Harris possessed an earning power of at least $1,000 based on a labor market assessment. Harris responded that the Eagles had work available that had not been offered to him.
Pennsylvania law permits an employer to modify workers’ compensation benefits if the employer offers a claimant a specific job that is available and the claimant is capable of performing or by establishing “earning power” through expert opinion evidence. If the employer has a job vacancy which the employee is capable of performing, the employer shall offer that job prior to seeking a modification or suspension of benefits based on earning power.
The Eagles provided testimony from a vocational expert in front of the WCJ. The expert opined that Harris had an expected earning capacity of $1,000 per week. The Eagles reported that they did not have a specific job vacancy available for Harris, who is currently living in the Atlanta area. The WCJ denied the Eagles’ petition for modification of compensation benefits because the judge determined that Harris was qualified for a position of marketing coordinator for the Eagles and was not notified or considered for the position. The Workers’ Compensation Appeal Board affirmed the decision of the WCJ, determining that the Eagles failed to meet their burden to prove that Harris could not perform the marketing coordinator position.
The Eagles appealed the decision of the Board to the Commonwealth Court. The Commonwealth Court reversed in favor of the Eagles because of the WCJ’s misunderstandings regarding the testimony of the Eagles’ HR Director. The court determined that Claimant’s operation of a one-day summer camp on two occasions for approximately 300 children was not sufficient expert evidence to serve as a basis for determining what work Harris was capable of performing. The court remanded the case back to the WCJ with specific instructions to determine whether Harris was qualified for any available positions with the Eagles based on an accurate reading of the record.
