February 5, 2007

Bad Faith Refusal
of Modified Duty

In Pitt Ohio Express v. WCAB, decided on December 26, 2006, the Pennsylvania Supreme Court held that an employer need not re-prove job availability following a period of total disability after an employee has made a bad faith rejection of an available modified position, with that bad faith rejection resulting in a suspension of the Claimant’s compensation benefits in prior litigation involving the Claimant’s failure to accept the modified-duty job position.

In Pitt Ohio Express, the Claimant, who sustained a low back work injury while working as a truck driver in 1996, received total disability benefits until the employer’s petition to suspend benefits was granted in 1997. The suspension petition was granted by a Worker’s Compensation Judge who found that the employer had proven that the Claimant had failed, in bad faith, to pursue a modified-duty job offer.

Subsequent to the Claimant’s benefits being suspended by the Worker’s Compensation Judge, the Claimant underwent low back surgery for his work injury. The parties entered into a Supplemental Agreement, resulting in Claimant’s compensation benefits being reinstated to temporary total disability.

Relying upon the Claimant testifying that he was physically capable of performing the modified-duty position, the Worker’s Compensation Judge suspended compensation, with the Claimant filing an appeal.

Following the voluntary reinstatement of compensation, the employer filed a new suspension petition, alleging that the Claimant had sufficiently recovered from the back surgery to be physically capable of performing the modified-duty position, which job had been the original basis for the Worker’s Compensation Judge suspending the claimant’s compensation in 1997. Relying upon the Claimant's testimony that he was physically capable of performing the modified-duty position, the Worker’s Compensation Judge suspended compensation. The Claimant filed an appeal.

The Worker’s Compensation Appeal Board reversed the judge’s suspension, concluding that the Claimant’s compensation benefits could not be suspended because the employer failed to show that the modified-duty position was still available. That reversal was, in turn, reversed by the Commonwealth Court, which reinstated the judge’s suspension order, holding that the employer did not again have to prove job availability when there was no evidence that the disability preventing the Claimant from being able to perform the modified-duty position continued. The Board thus reinstated the conclusion that the Claimant’s rejection of the modified-duty position was made in “bad faith”.

Appealing the Commonwealth Court’s reversal to the Pennsylvania Supreme Court, the Supreme Court held that the modified-duty position offered to the Claimant had been a permanent position and that the Claimant rejected it in “bad faith”. The Court further found that the Claimant’s reinstatement of compensation benefits following the back surgery was temporary, and not permanent, with the Claimant’s “bad faith” in rejecting the modified-duty job offer being reinstated, and with Claimant having sufficiently recovered from the back surgery to be again physically able to perform the modified-duty position.

Justin Eakin noted that rewarding bad faith conduct “chills” the attempt to return an injured worker to employment.

Citing to the dissenting opinion of Madame Justice Sandra Newman in the Supreme Court’s decision in General Electric v. WCAB, 849 A. 2d 1166 (Pa. 2004), Justin Eakin, writing for the Pitt Ohio Express Court, noted that rewarding bad faith conduct “chills” the viable attempt of an employer to return an injured worker to gainful employment.

In so holding, the Pitt Ohio Express Court has ruled that “an employer will not be forced to prove job availability following a period of total disability after an employee has made a bad faith rejection of an available modified position”.

Questions

Questions concerning this decision and like issues involving workers’ compensation claims or matters, can be directed to our workers’ compensation department attorneys.

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