Terminating the Poor-Performing Workers' Compensation Claimant

The Terminated Employee and Eligibility for Reinstatement of Workers' Compensation Benefits.
An injured employee is entitled to wage loss benefits where he/she is disabled from performing their regular work duties. If a position is available to the employee, within their physical and vocational capabilities, a return-to-work job offer will "suspend" the wage loss benefit payments. If there is a difference between the time-of-injury earnings and the "new" wages, a partial disability benefit may be due.

At times, an employee who has returned to work after a work comp injury, may be subject to dismissal from their employment due to a violation of work rules or due to poor performance of their assigned tasks.

The eligibility of the employee to have a reinstatement of work comp wage loss benefits becomes an issue for the Workers' Compensation Judge.

Hess v. WCAB (Target Corporation), No. 341 C.D. 2013, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Simpson on August 6, 2013 reviewed a fact scenario where the employee's conduct was at issue.

Factual and Procedural Background
Employee strained her left shoulder and arm while working as a "team leader" with Employer in January 2005. A Notice of Compensation Payable (LIBC 495) acknowledged a work injury.
Employee returned to work 22 months later in November 2006. As her earnings were equal to or greater than her time-of-injury wages, her work comp wage loss benefits were suspended.

Employee continued to work until December 2009, when her employment was terminated.
A Reinstatement petition was filed for total disability, averring her disability continued and her employment was terminated through no fault of her own.

WCJ Decision
Employee and Employer medical expert witnesses found employee was not fully recovered from her work injury, which was now described as "a re-tear of the SLAP lesion and adhesive capsulitis of the left shoulder". [ SLAP= superior labral tear from anterior to posterior].

"Despite finding Claimant's work injury continues, the WCJ concluded she did not meet her burden of proving loss of earnings through no fault of her own". slip opinion page 3.

The WCJ relied upon the credible testimony from Employee's Supervisor.

Employer's Testimony
Employee's personnel file contained 3 corrective reports between July and October of 2009.
[ note: this time frame was about 32 months after her return to work].
1st report was for an inappropriate statement.
2nd report was for attendance issues.
3rd report was for violation of safety policy.

In October 2009 Employer gave Employee a final warning, any additional offenses, either conduct-related or performance-related, would result in her termination.
After this warning, Employer noted further problems with performance, where employee was not turning in brand walks and coaching team members, from October through December.
As a result, employee was terminated in December 2009.

Employee acknowledged Employer issued 3 reports and the conduct described. She did not believe reports should have been issued for some of these infractions. She testified Employer gave her 9 reasons for her discharge in her termination meeting.

The WCJ concluded, employee failed to meet her burden of proving her loss of earnings was through no fault of her own. He did not reinstate her wage loss benefits.
Although the WCJ found her injury included the SLAP lesion and capsulitis, he did not amend the NCP description of injury.
He did not award reasonable litigation costs. [employee argued she "prevailed" in proving a new description for the work injury].

Employee Review Petition
Employee filed a Petition to Review and expand the description of injury, consistent with the "new" diagnosis and WCJ findings. The parties entered into a stipulation to amend the description. The WCJ "granted" the review but did not award litigation costs, reasoning that they were incurred in the reinstatement litigation, where employee did not prevail.

Commonwealth Court Appeal of Employee
[WCAB affirmed the WCJ]
Employee appeal argued:
1. the WCJ used an incorrect standard in denial of her reinstatement petition
2. the WCJ erred in not awarding litigation costs for the successful review of the description of injury.
3. Substantial evidence did not support WCJ findings regarding the violations of Employer policies.

l. Reinstatement Standard
A Claimant seeking reinstatement of wage loss benefits, following a suspension, must prove that her earning power is once again adversely affected by her disability and that such disability is a continuation of the original work injury. See: Bufford v. WCAB (North Amer. Telecom.) 2 A3d 548 (Pa. 2010).

Employer has the burden of proof to show the claimant's loss of earnings is not caused by the work-related disability.
"This burden may be met by showing "suitable work was available or would have been available but for circumstances which merit allocation of the consequences of the discharge to the claimant, such as claimant's lack of good faith".
slip opinion page 7 citing: Vista International Hotel v. WCAB (Daniels), 742 A2d 649 (Pa. 1999).

ll. Termination Standard
Employee argued the standard for determining whether her work comp benefits are reinstated should not be a "termination for cause" standard, rather her conduct must rise to the level of "bad faith or willful misconduct" to preclude reinstatement of work comp benefits. [an unemployment comp standard].
The Commonwealth Court cited past decisions where it determined that the "stricter willful misconduct standard is not the standard to determine 'bad faith' in the context of allocating fault in a workers' compensation case.
Where the WCJ [and Court] determined the employer proved specific instances of "wrongful conduct" by claimant, making claimant's discharge her fault due to her conduct, the denial of reinstatement has been affirmed. [this would distinguish an unsatisfactory performance review where the worker has an inability to perform well, despite her best efforts].

It is not "bad faith" if the worker cannot perform satisfactory due to the work-related injury. citing: Shop Vac Corp. v. WCAB Thomas), 929 A2d 1236 (Pa. Cmwlth. 2007).

Whether the employee acted in bad faith, for purposes of a post-injury discharge, is a factual determination for the WCJ. slip opinion page 8.

In response to Employee's "substantial evidence" argument, the Court reviewed the details of employee's conduct and her discharge from employment. There was substantial evidence in support of the findings.

lll. Litigation Costs
A limited issue was the denial of reimbursement to employee counsel for reasonable litigation costs, as employee "prevailed" in amending the description of the work injury.
Employee was entitled to reimbursement of litigation costs. The costs "related to the matter at issue" Although the costs were incurred in the reinstatement petition litigation, the same evidence led to the successful review petition. On this basis they are payable. Citing: Western Pennsylvania Hospital v. WCAB (Cassidy) 725 A2d 1282 (1999).

Practice Pointers:
1. Review of this appellate record reflects a comprehensive review and detailed presentation of the facts supporting the employer decision to terminate this employee.
The employer thoroughly documented this employee's conduct over a period of months.
There was a substantial time period from the date of return-to-work to the time of discharge. This is not a case where the employer is "hunting" for reasons to discharge an injured worker, shortly after they return.

2. Termination of an employee, with physical restrictions from a work injury, requires a similar well documented case. One must take care to distinguish the "bad faith" behavior from the performance factors associated with or caused by the work injury.

3. My recommendation to employers is to apply their workplace rules and policies to all workers, even those with past work injuries. IMO this is an issue separate and apart from making work place accommodations or work task modifications. Attendance, Discipline and safety policies should not be compromised, merely because a worker has a past injury and may seek future work comp benefits if discharged.

4. Document your position.