Tuesday, January 22, 2013

Prior Bad Faith job refusal negated Reinstatement Request

When an employer makes a work offer to an employee with modified work capabilities, a refusal to return to an available work assignment or refusal to continue in that assignment (this case)
will limit the employee remedy for future reinstatement of total disability benefits, where there is no proof that the work related injury condition has worsened to further limits one's work capabilties.

An offer of modified work duty to a previously injured Employee remains one of the most effective remedies for reduction of work comp wage loss benefits. From the employee view, it may be an opportunity to transition back to work and/or maintain ones postion in the workplace. From the employer point of view, they receive some work effort as the employee collects wages and/or partial disability and they reduce their work comp benefit payout.

"Funded" employment is a viable option for the Employer who cannot provide modified duty work assignements.

Alfred Napierski v. WCAB (Scobell Co. Inc)  No.330 C.D. 2012, was decided on January 10, 2013.

Factual & Procedural Background
Employee sustained a left leg injury in July 1995.
Employer made a "funded employment" job offer with IDI.
(funded employment = where WC insurer funds/pays wage amount to Third Party Employer, who pays wages to employee)
Employee returns to work with IDI in October 2004. PPD paid based upon of wage differential.
IDI experiences problems with office locations: heating malfunctions; mouse infestation, necessiate move in March 2005 and second move August 2005.
When Employee finds mouse feces were transported from office #2 to office #3, he "quits on the spot" believing the Employer was "playing games".

Employee files Modification petition to reinstate TTD benefits.
WCJ finds job was within physical capabilities, but reinstated TTD for time gap from January 2005 when heat malfunctioned (did EE take off?) until job became available at office #3 in August 2005.
WCJ found Employee refusal to work at office #3 was "bad faith". Order continued PPD based upon earnings available with IDI.

Cross appeals to WCAB. Employer argue error to allow PPD, WCAB agrees.
Employee argue error deny reinstate, appeal denied.
Commonwealth Court appeal by Employee denied, WCAB revision of WCJ order is affirmed.
Pa Supreme Court allocatur denied.

Employee "New" Reinstatement Petition 2010
Employee asked Employer to "fund" another job for him so he could return to work. Employer did not respond. Employee's "legal issues" decided without additional testimony.
WCJ deny Reinstatement, reasoning, benefits were modified for "bad faith" refusal to continue in funded job. Employee must prove medical condition has worsened and he can no longer perform previously available IDI position. "Funded" nature of job was not relevant.
WCAB affirm.

Commonwealth Court Appeal, Employee argued prior case precedents regarding job offers and bad faith should not apply to a funded position.

General Rule #1. A Claimant's Burden of Proof for Reinstatement is to show the reason for suspension/modification, no longer exists. For example, one's earning power is adversely affected by work related disability, such as: one can no longer perform the prior job, the job is no longer available, there is no other work available.

General Rule #2. A Claimant's burden of Proof where benefits have been modified because of "bad faith" is different, the claimant must show a change in his physical condition such that he can no longer perform the job(s) previously offered, citing Spinibelli v. WCAB (Massey Buick Inc. 1992.
 ( a prior Mike Sherman appellate victory).

" An employer cannot be given a never-ending duty to keep a job available for a claimant who rejects it in bad faith". Claimant must live with the consequences of his decision.

The situation where a funded position was only available for a finite time period (Myers 2004) was distinguished from this present situation. This IDI job offer was not temporary from the outset.
The fact that the IDI job was "specially created" for Employee did not demand a different result as the jobs in Spinibelli were specially created for that worker.

Rule of Law (good quote here)
" Once the claimant refuses any kind of job in bad faith, whether funded or specially created for the claimant, job availability ceases to be an issue. It matters not that an employer might be able to provide another job for the claimant; it cannot be forced to do so more than once".
Napierski slip opinion p. 10.

Practice Pointers
1. Funded employment may continue to be a viable litigation strategy and may not have the stigma associated with past programs.
2. Document the reason(s) provided by an employee when they depart a modified duty job and further document those reasons with a letter to claimant and his attorney.
3. Consider a contemporaneous medical exam to document the claimant remains physically capable of performing the position they abandoned.

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