An Employer may offer an employment position to an injured employee. The proffered position must be within the employee's physical and vocational capabilities. The legal standard for the Employer's proof was delineated in the often-cited Pennsylvania Supreme Court decision at Kachinski v. WCAB (Vepco Construction Co.), 532 A.2d 374 (Pa. 1987).
More than 25 years later, we still face appellate challenges to the Employer's evidence from unsuccessful employees.
Markardt v. WCAB (Woodloch Pines Inc.) , No. 434 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Friedman on September 30, 2013 addressed this "job offer" issue.
Factual and Procedural Background
Employee injured her cervical and lumber spine (strain) in her duties as a housekeeper with
Employer in August 2007. A NTCP was issued, which converted to a NCP.
April 2008 IME with S. Ross Noble, M.D. supported Employer's Termination Petition.
November 2008 Employer modified duty job offer supported Employer's Suspension Petition.
Employer medical expert was credible, in part.
Employee's medical witness, Paul Vessa, M.D. was not persuasive.
The Termination petition was denied, BUT the Suspension petition was granted.
Employee WCAB Appeal
Remand, to determine whether Employer proved a "change" in employee's medical condition and made a referral to an available job... ie, did they meet the "Kachinski" burden of proof.
On Remand, the WCJ took additional testimony and found Employer met their burden of proof for a Suspension of benefits based upon the medical exam and job offer.
- Employer medical expert was credible in his opinion that employee could return to work
- Employer's Director of Housekeeping credibly testified regarding the job duties,
- -how they differed from the pre-injury position,
- -she noted that assistance was available,
- -this utility person position was goal-oriented, rather than production-based, and
- -the position was offered to employee.
- Employee testified she was capable performing almost any activity as long as she paced herself.
- - she acknowledged she received the job offer letter.
- - she acknowledged she did not attempt to perform this modified job.
- Employee's failure to attempt the proffered job, was found by the WCJ to amount to bad faith.
Commonwealth Court Appeal
Employee argued 2 issues:
(I) the WCJ did not issue a reasoned decision, as he failed to mention employee's medical witness and disregarded her medical evidence as to why she could not perform the specific job offered.
(II) The WCJ erred in determining she acted in bad faith when she followed her doctor's advice and did not accept the position offered.
Court Reasoning in Affirmation of WCJ Decision
(I) Section 422(a) of the Pennsylvania Workers' Compensation Act provides that:
"All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decision so that all can determine why and how a particular result was reached.
The WCJ shall specify the evidence upon which the WCJ relies and state the reasons for accepting it in conformity, with this section.When faced with conflicting evidence the WCJ must adequately explain the reasons for rejecting or discrediting competent evidence".
slip opinion at page 5.
The WCJ did address all of the evidence and credibility of witnesses in his initial decision.
The WCJ determined employee medical witness was not persuasive.
On remand, the WCJ only addressed the evidence relevant to the WCAB remand order.
The WCJ did not err in failing to address Dr. Vessa's opinion in the remand decision. This was not an issue in the remand order.
(II) Pursuant to the Kachinski decision and Section 413 of the Act, 77 P.S. 772, an employer seeking to suspend (or modify) a claimant's benefits must meet the following requirements:
(1). the employer who seeks to modify a claimant's benefits on the basis that he has recovered some or all of his ability must first produce medical evidence of a change in condition.
(2). The employer must then produce evidence of a referral to a then open job, which fits in the occupational category for which the claimant has been given medical clearance, e.g., light work, sedentary work, etc.
(3).The claimant must then demonstrate that he has in good faith followed through on the job referral(s).
(4). If the referral fails to result in a job then claimant's benefits should continue.
See: Kachinski, 532 A.2d at 380.
HERE, Employer presented the medical testimony of Dr. Noble. He opined Employee had fully recovered from the work injury. He opined Employee could return to work without restrictions.
The WCJ found Dr. Nobel to be credible.
Employee admitted she was capable of performing almost any activity, as long as she paced herself.
On this basis, the WCJ did not err in finding Employer met criteria #1.
Employer presented the testimony of the Director of Housekeeping. She described the modified duty job and her job offer to Employee.The WCJ found this testimony credible.
On this basis the WCJ did not err in finding Employer met criteria #2.
The burden then shifted to Employee to demonstrate that she followed through on the job referral, in good faith. The WCJ found her failure to attempt to return-to-work OR contact Employer after the job offer amounted to bad faith.
On this basis the WCJ did not err in finding that Employee failer to met criteria #3.
1. A well documented job offer will allow the WCJ to grant a modification/suspension of wage loss benefits, if employee does not return to work.
In this instance the WCJ assigned greater credibility to Employer's medical evidence that she could return to work.
2. How might Employer avoid the outcome where the WCJ assigns greater weight to Employee's medical evidence?
During presentation of evidence, Employer may identify the reasons for physician disapproval and make an amended job offer!
Then the WCJ is presented with 2 return-to-work alternatives.
3. Here, Employee alleged she did not return-to -work, based upon her physician recommendations. If the job offer is amended, as suggested at #2 above, are there others reasons for Employee's refusal to attempt to return-to-work?
4. Have the Employer contact (or vocational counselor) attempt to identify any reasons for the non-compliance.
5. During litigation, cross examine Employee at the initial hearing regarding her job offer response, to document the lack of "good faith" and to identify any areas for possible job amendment.