Refusing a Modified Job Offer Haunts Injured Worker Years After

Ordinarily, reinstating PA workers’ compensation benefits for an injured worker is not a high burden.  As we have previously discussed, usually benefits can be reinstated when the reason for the suspension of workers’ comp benefits no longer exists.  When the injured worker once again suffers a loss in earnings due to the work injury, through no fault of the injured worker. benefits are to be reinstated.  Case law tells us that a medical deposition is not even required in such a situation.

However, the relative burden of proof changes drastically when there has been a finding of “bad faith” with regard to a modified job offer.  Pennsylvania’s appellate courts have consistently held that all work is equal and that an injured worker cannot refuse a job offer for reasons unrelated to the work injury.  To do so would entail a finding of “bad faith,” which will stick to the injured worker for the life of the work injury.  A recent case in the Commonwealth Court of Pennsylvania demonstrated the drastic effect a “bad faith” finding can have on an injured worker in PA.

In Tyson Shared Services, Inc. v. Workers’ Compensation Appeal Board (Perez), the injured worker suffered a significant injury to his right shoulder on December 3, 2014.  This required two surgical procedures.  Shortly after the second surgery, the injured worker was offered a modified-duty janitorial position, which was consistent with the physical restrictions set by the treating surgeon.  For reasons not discussed in the decision, the injured worker refused this job offer.  A Claim Petition was litigated, resulting in a decision by a Workers’ Compensation Judge (WCJ) granting temporary total disability benefits, but then suspending the benefits as of the date of the modified-duty job offer.

Subsequently, on August 10, 2016, the injured worker had to undergo a third surgery on the shoulder and filed a Petition for Reinstatement as of that date.  When he testified before the WCJ in 2017, the injured worker admitted that he last saw his surgeon on December 6, 2016, at which time the surgeon released him with restrictions.  The injured worker presented the deposition of another doctor, who saw him after December 6, 2016, who testified that Claimant was still not capable of working.

The workers’ compensation insurance carrier had the injured worker evaluated in a Defense Medical Examination (DME, or, humorously also called an Independent Medical Examination or “IME” though it is hardly “independent”) on August 8, 2017.  This DME physician testified that the injured worker was actually released to return to work at light duty by the surgeon on October 25, 2016.  It was the opinion of the DME doctor that the restrictions placed by the surgeon were similar to those the DME doctor would place, and that these restrictions were consistent with the modified-duty janitorial job the injured worker had previously refused.

After hearing the evidence, the WCJ granted the Petition for Reinstatement, but only for the period of August 10, 2016 to October 25, 2016, and suspended the workers’ comp benefits as of that date.  The opinions of the DME physician were accepted over those of the physician offered by the injured worker.  The benefits were suspended since the injured worker could not prove an entitled to temporary total disability benefits after October 25, 2016.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed, but changed the date benefits would be suspended from October 25, 2016 to August 8, 2017, the date of DME.  This change was necessary, said the WCAB, because “we determine that the WCJ improperly relied upon hearsay evidence that was not corroborated by any other competent evidence of record.”  August 8, 2017 was the first date the DME physician had actual, personal, knowledge of the condition of the injured worker.

The workers’ compensation insurance carrier then appealed this decision to the Commonwealth Court of Pennsylvania.  Right up front, the Court immediately pointed out that the normal, low, burden of proof ordinarily present in a Petition for Reinstatement does not apply here:

in cases where the suspension of benefits is based on a finding that the claimant has failed to pursue job(s) in good faith, the claimant’s burden of proof in a reinstatement petition is different; specifically, the claimant must prove a change in his or her condition such that he or she can no longer perform the job(s) offered to him or her which served as the basis for the earlier suspension.”

The workers’ comp insurance carrier argued that the WCAB erred, by placing the burden of proof on it, while the burden properly should have been on the injured worker to prove ongoing disability.  The Court agreed.  Since there had been a finding of “bad faith,” the injured worker retained the burden of proof throughout.  The WCJ rejected the testimony of Claimant (after the surgery of August 10, 2016) and rejected the testimony of Claimant’s medical expert in its entirety.  Thus, there was no evidence of record to prove any disability after October 25, 2016.  As such, the WCAB decision was vacated, and the decision rendered by the WCJ was reinstated.

The important thing for an injured worker to take away from this case is the tremendous impact a finding of “bad faith” can have on a work injury.  And, that this impact can last for years after the injury, and years after the behavior that led to the “bad faith” finding.  When a job is offered to an injured worker, this is a critical stage in a case with wide and long-lasting effect on the case.  Be sure to consult with an attorney certified as a specialist in workers’ compensation law, as all of our attorneys are, to be certain your rights are properly protected.

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