Difficulty staying Awake? = "Unavailable" Job (really... no kidding!)

Modified Duty Job Offers are the best strategy to reduce workers' compensation liability for injured employees with work-related medical restrictions. It is well-established that the job offered must be within the physical and vocational capabilities of the worker.
EMPLOYER BEWARE! The job must also keep the worker AWAKE!

This is the type of case that keeps risk managers awake at night. (pun intended)

Channellock Inc. v. WCAB (Reynolds), No. 2027 C.D. 2011 an unreported memorandum opinion of a panel of the Commonwealth Court authored by Judge McGinley on May 8, 2013, reviews the long-suffering attempts of an employer to document a position available to an injured employee.
See also: Channellock Inc. v. WCAB (Reynolds) 965 A.2d 1239 (Pa. Cmwlth. 2008).

Factual & Procedural Background
This case has a rather long history as the original injury about 12 years ago.

It is somewhat of a long story, but it bears repeating, to explain how the parties arrived in their respective status in 2013.

In July 2001, Employee slipped, fell, and struck his low back. He underwent surgery for a herniated disc at L5-S1. In May 2002 Employee returned to work in a modified duty position. When that part of the plant closed, employee was assigned a "no duty" job, where he sat, read, did crossword puzzles, but was not allowed to talk to other co-workers.

In December 2003 Employee fell asleep at work. Employer disciplined employee. Employee requested a move to a position that would keep him more mentally alert. Employer complied and assigned him to a position where he cleaned pliers. He believed these duties exceeded his physician recommendations, but he performed these duties until March 2004 when his doctor removed him from work.

September 2005 IME supported a Termination Petition.
Employee filed a Reinstatement petition for Total disability as of March 2004.

Employee testified his pain medications make him drowsy.
Yet, He occasionally helped his wife in her day care business(?).
Surveillance evidence showed "various out-of-work activities".
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WCJ decision granted Reinstatement of total disability and denied the Termination request.

WCJ found Employee was not able to perform the job offered, as Employer testimony stated the "no duty" job required employee to remain awake. If sleeping, employee was subject to discipline, including termination. Employee testified his medications cause him to be drowsy accordingly, he was unable to meet the employer's specific job requirements.
Query: Is staying awake a requirement of EVERY job with every employer?
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Commonwealth Court 2008 decision affirmed.
WCJ found employee medical evidence to be credible.
"No work" job was not within employee's physical capabilities, as a medically approved position. 965 A.2d at 1242.
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Channellock Part II
Termination Petition II

March 2008 Employee Return to "No Duty" position, Part II.

Employee testified he sat in a chair in the cafeteria.
Employee sat in a loveseat in the HR office.
Employee testified this no duty job was "Emotionally and physically too much for me to continually do every day ...".
Employee medical expert stated there was a relationship between employee pain and depression.
Employee could not return to his time-of-injury job due to difficulty walking and finding a comfortable position.
Medical expert provided an "off-work slip" because employee was in "mental anguish by having to go in and perform an oxymoronic job of a no-duty job". (say what?)

Employee performed a job in March to May of 2008, where he picked up a pair of pliers, placed the pliers in an envelope together with literature for prospective customers. Employee said this job was too much for him and he requested that he be placed in the no-duty job!

Employee was told that if he fell asleep on the job he was subject to the Employer progressive discipline policy.

Employer Medical expert opined Employee had no objective abnormalities on exam to substantiate his pain complaints or a need for narcotic medication. He was capable of light duty work. There was no reason he could not return to his regular work (?) He was at MMI. He was fully recovered (an opinion not expressed in his medical report).
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 WCJ Decision II
Termination petition was denied.
Suspension amended to Modification Petition was granted.
Employee Reinstatement/Modification petition was denied.
Penalty petition was granted.
Employer medical expert was not credible regarding full recovery or work capacity.

Employee WAS capable of the "no-duty" job!
Employer was willing to accommodate employee's need to rest.
The work activities were no different than his at-home activities.
Employee medical expert was not credible that employee cannot do the job as it is "moronic", he did not provide a medical reason.
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WCAB Reversal of Modification Order
Employee could still be fired for sleeping on the no-duty job, even with a revised progressive discipline plan (ie,not immediate firing).

2008 Commonwealth Court decision still applied:
Employee got drowsy from pain meds.
Employee could be fired for sleeping.
Job was not "available" to him.

Collateral Estoppel effect of prior decision prevented re-litigation of these issues.
Really?
Even though it was a different time frame?
A different Medical exam?
A different job offer?
A different disciplinary policy?
Usually there needs to be an identity of parties, of subject matter and of issues for Collateral Estoppel to apply.
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Commonwealth Court 2013
No. The "issue"in the original litigation was whether the no-duty job was available to Employee because Employer required him to remain awake while at his post ..." slip opinion page 15.
The issues in each litigation were the same.

[The Court also discussed the lack of evidence in support of a Termination order, in support of a Suspension or in defense to the penalty petition.]
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Practice Pointers:
1. Allow your employees to sleep on the job. No! This is a frustrating case, to say the least, but you must present sufficient evidence, as this Employer did, to establish the worker's out-of-work activities in an attempt to "win" the credibility battle before the WCJ.

2. The odd twist in this case was that employee asked to be placed back to the no-duty position in 2008! He knew what the conditions were. Was this an intentional act to control the employment situation? In any event, make job offers consistent with the medical examinations. If possible, try to accommodate the employee's physician recommendations.

3. I believe this case demonstrates a lack of common sense. The best efforts of an Employer in documentation of available work and reasonable work requirements (no sleeping!) may be defeated by assignment of credibility to an individual who can perform a variety of at-home activities, yet alleges an inability to perform light duty or no-duty work tasks, in the absence of objective physical findings!
Another medical mystery...

4. Plan: Do not "give up".
Document those available work positions.
Make return-to-work offers.
Litigate the unreasonable refusals to return to work.