Wednesday, January 16, 2013

Suspension based upon work offer & Penalty for non-payment during appellate remand

An Employer was entitled to a suspension of TTD benefits where the Employee left the available light duty position after 2 or 3 days, due to his lack of an available vehicle.

The Employee was entitled to a Penalty award, where the Employer/Insurer did not reinstate TTD benefits when the initial WCAB decison was vacated and remanded for further fact finding.

North Pittsburgh Drywall Co. Inc. v WCAB (Owen) was decided by the Commonwealth Court on January 9, 2013 in an opinion authored by Judge Cohn Jubelirer. (No. 1257 C.D. 2012).

Factual History: NCP issued for an October 2001 right wrist injury. Employer made an April 2003 light duty job offer of warehouse position, approved by Employee physician. Job was located 1.5 hours from residence, but was same location as regular job. Employee automobile had been repossessed after injury, so he borrowed his dad's vehicle and returned to light duty work for 2 or 3 days. (why do they not know the number of days at this point in the litigation?).
His father needed the vehicle, so Employee had no transportation and was unable to return. It was said he had no difficulty performing these work duties. Employer did not pay Employee for these work days. (almost a complicating factor).

Procedural History: Suspension petition filed by Employer.

WCJ 2005 decision denied relief as light duty job was not "available" to Employee, due to distance and unavailability of transportation.

WCAB 2006 decision, reverse and grant suspension as of initial job offer date.

Commonwealth Court 2007 Vacate WCAB order and remand for findings, "the focus of the inquiry is on the [claimant's] reason for losing the job, i.e. whether the loss of earnings was through 'no fault of his own'.

Penalty Petition filed by Employee as Employer did not reinstate  TTD benefits upon Vacate order.

WCJ 2008 denied suspension as Employer did not meet burden to prove Employee lost his job through bad faith. (I thought he abandoned job?).
Penalty was denied as decision was not "complete" due to need for additional findings.

WCAB 2010 affirmed WCJ, suspension is denied. Reversed WCJ regarding penalty payment.

Commonwealth Court 2013 decision

This opinion provides a good review of:
1.the burden of proof in a reinstatement versus suspension petition and
2. a review where the employee's employment separation is voluntary versus involuntary.

Here, Employee voluntarily left an available light duty position which was approved by his physician and performed without incident for 2- 3 days.
The reason he did not continue in this job was that the borrowed vehicle was no longer available to him.
His failure to continue to perform the light duty job was NOT due to any residual effects of the work injury.
As the Pa Supreme Court stated in Hertz-Penske, "the Act is not intended as a remedy where a claimant's 'loss [in earnings]' is due to factors other than such injury" 546 A.2d at 261.

Penalty petition award was affirmed. Supersedeas was not granted during appeal. Vacation of the suspension order placed the parties back to the status where employee was eligible for TTD benefits.

Remand by Commonwealth 2013 decision back to WCJ to make additional findings of fact regarding employee's rate of pay for light duty position and duration of that position, "crucial factors in determining whether claimant's compensation should be reduced or suspended". (this was still unknown from prior remand?)

THESE ARE SUGGESTIONS BASED SOLELY UPON REVIEW OF THIS OPINION AS I DID NOT REVIEW THE EVIDENTARY RECORD, I know from personal experience that the aappellate decision may not reflect the work that was performed or the arguments made by counsel during litigation.

1. Job Offer correspondence - attach physician approvals, if available.
1a. Job Description - review for completeness of information, although you may not avoid the claimant expression "uncertainty" re aspects of the job.
1b. In similar situations we prepared a video recording of the performance of the work duties so there is no ambiguity of the assigned tasks, the objects involved, the duration of tasks, etc.
2. Good practice to document the reason(s) for leaving available work. Here, there were no documented reasons relating to residual effects of the work injury.
2a. Also, one should document any work-related reasons, as the offending task may be eliminated and the job "re-offered".
3. Penalty award is difficult to accept, especially when you "win" the case. The best practice is to file for supersedeas of benefit payments during the appeal, at each level, going "up" and going"down". Admittedly I would have been tempted to argue that vacated order did not direct insurer to pay benefits during remand.

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