In January 2013, the Commonwealth Court of Pennsylvania, in Napierski v. WCAB (Scobell Company, Inc.), held that once a claimant has refused an available job in bad faith, his employer’s obligation to show job availability ceases. The claimant “must live with the consequences of [his] decision”, meaning he cannot remedy the situation by “subsequent action” such as attempting to accept the job that was previously offered and declined. Instead, the claimant must show a worsening of his medical condition to be awarded a reinstatement to total disability.
Some factual context: Claimant was a plumber who injured his left leg on July 28, 1995 when a ditch collapsed. Employer accepted his claim and began paying him temporary total disability benefits. Subsequently, Employer referred Claimant to Expediter- a company that aids employees to return to work. They found Claimant a full-time, sedentary (seated) job with a company called IDI, Inc. working 40 hours per week in telephone customer service. The job was funded by the Employer and paid less than Claimant’s pre-injury average weekly wage. Claimant’s own doctor approved the job.
Claimant began working this job in October 2004 but in March 2005, IDI moved him to a second office and then to a third office in August 2005. The moves were allegedly necessitated by problems in the offices, including heating issues and rodents. When Claimant observed mouse feces in paperwork that had been imported from the second office, he quite immediately, claiming the Employer was “playing games” with him. Employer filed a Petition to Modify and the Workers’ Compensation Judge found the IDI job fell within his physical capacities but became “unavailable” to Claimant in January 2005 when the heat malfunctioned. But, it became “available” once again by August 19, 2005 at the third office location. Thus, the WCJ modified his benefits based on what he could have earned at IDI from August 19, 2005 into the future.
On June 30, 2010, Claimant asked Employer to fund the job for him again so that he could return to work. Employer didn’t respond. He then filed the Reinstatement Petition asking for total disability benefits because the funded employment was no longer available to him.
In reaching its conclusion, noted above, the Commonwealth Court reviewed the burdens of proof in reinstatement contexts. First, it noted that typically a partially disabled claimant can reinstate to total disability by showing that his earning power is once again adversely affected by his work injury. (Piper v. Ametek-Thermox Instruments, 526, Pa. 25, 33, 584 A.2d 301, 304 (1990)). Yet it noted that a claimant’s burden of proof is different where his benefits have been modified because of his bad faith conduct. (Ward v. Workers’ Compensastion Appeal Board (City of Philadelphia), 966 A.2d 1159, 1162 (Pa Cmwlth. 2009)). The Pennsylvania Supreme Court, in Pitt Ohio Express v. Workers’ Compensation Appeal Board (Wolff), 590 Pa. 99, 912 A.2d 206 (2006), held that a claimant’s bad faith refusal of employment relieves the employer of the need to show that a job continues to be available. The Court reasoned that if a claimant rejects a job in bad faith and then puts the burden on the employer, it would reward bad faith conduct and circumvent the purpose of the Pennsylvania Workers’ Compensation Act.
In a footnote, the Commonwealth Court pointed out something quite significant. That is, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act, an employer could obtain a modification if it could show that suitable employment was made available to the claimant. Once the employer referred claimant to an available job, the burden shifted to the claimant to prove that he followed through on the job referral in good faith. (this modification landscape was pursuant to a case called “Kachinski“) After 1996, employers have most frequenly used Labor Market Surveys to establish an earning power- this scheme does NOT require a referral to an actual job, but instead, it is a survey of allegedly available jobs that exist in the local economy where a claimant lives (or was injured) that are allegedly within the claimant’s physical and vocational abilities.
In today’s Pennsylvania Workers’ Compensation world, we do not see many Kachinski type Petitions to Modify. But they still exist, as this case demonstrates, and it is important, as a practitioner- and as a claimant- to understand the burdens of proof in various situations.
For more information or a free analysis of your PA Work Comp claim, call or email Experienced PA Work Injury Lawyer Michael W. Cardamone 7 days a week TOLL FREE at (877) 560-7090 or Michael@cardamonelaw.com