Offer of Modified Work to Injured Worker in PA Need Not Describe Duties
One of the ways a workers’ compensation insurance carrier in PA can be relieved of paying workers’ comp benefits to an injured worker in Pennsylvania is by showing that employment is “available” to the injured worker, as described previously in our blog.
Prior decisions by both the Supreme Court of Pennsylvania, and the Commonwealth Court of Pennsylvania, make clear that if an injured worker would not reasonably be aware of the duties involved with a modified job offer, the job offer is not sufficient. Typically, if the injured worker has not previously worked in the position to which he is being offered, “the employer must provide information related to the job duties and classification so that the claimant can make an informed decision regarding whether the position offered is within (his or) her capabilities.” [Quoting language in the decision of Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Mem’l Hospital) from the PA Supreme Court].
This brings us to the recent decision by the Commonwealth Court of Pennsylvania in Vaughn v. Workers’ Compensation Appeal Board (Carrara Steel Erectors). Here, Mr. Vaughn was a union ironworker, who injured his back while performing heavy duty work. Some time after the injury an “Independent” (Which we know is anything but) Medical Examination (IME), released Mr. Vaughn to light duty work.
The Employer sent Mr. Vaughn a letter stating, in relevant part, “Your activities at work will be modified to accommodate the restrictions identified in the (IME).” There was no information as to how the position would be modified or what duties would be expected of him. Believing he did not have enough information, Mr. Vaughn refused to report for work.
A Petition for Suspension was filed by the workers’ compensation insurance carrier. A witness for the employer described a few menial tasks that Mr. Vaughn could have performed, had he come back to work (putting nuts and bolts together, “repair chokers,” and make deliveries to work sites). The Workers’ Compensation Judge found this witness credible and granted the Petition for Suspension. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
The Commonwealth Court of Pennsylvania affirmed as well. Since the position being offered was the pre-injury position (union ironworker), the Court found that Mr. Vaughn should have been familiar with the duties of the job. Further, since the Employer said they would modify the position to accommodate the restrictions, the notice of the job being offered was sufficient.
As workers’ comp attorneys representing injured workers, we found this decision rather disconcerting. If an injured worker previously performed a light duty job, and is then being offered the same light duty job, then it makes logical sense that there would not be a need for the Employer to again describe the duties of the job being offered. That, however, is hardly the same situation as here, where a union ironworker, who performed heavy duty work, would now have to imagine how the Employer planned to make a job that is heavy duty by nature into a light duty job. How exactly can the injured worker “make an informed decision regarding whether the position offered is within (his) capabilities,” if he does not know the duties he will be asked to perform? This decision is further evidence of the unfairness of the Pennsylvania Workers’ Compensation Act, and the need for injured workers to be represented by a firm who knows, and protects, the rights of injured workers.