New Decision Regarding Job Availability

On June 3, 2011, a three member panel of the Commonwealth Court issued a decision that is extremely important for all workers’ compensation claimants who have been offered light or modified duty jobs with their Employer where the job offer specifically states that they will accommodate any reasonable restrictions but does not describe the job duties at the job. Vaughan v. Workers’ Compensation Appeal Board (Carrara Steel Erectors), 19 A.3d 545 (Pa. Cmwlth. 2011) involved the following scenario: An iron worker sustained a serious back injury. He was sent for an IME. The IME doctor issued a set of work restrictions.

The Employer sent the claimant a job offer that read as follows:
"We are pleased to hear that you are capable of returning to work with some restrictions. Your activities at work will be modified to accommodate the restrictions identified in the 1/3/08 Work Capability Chart signed by Dr. Altman [the IME doctor]. A copy of this chart is enclosed. Please report to Kevin Litz on May 19, 2008 at 7:00 a.m. You will, of course, be paid at your regular rate of pay."

The claimant felt he could not work at all, and did not even attempt the job. Based on our experience, it is extremely likely that had the claimant returned to work, the Employer would ultimately not have been able to fashion a job that accommodated these restrictions. However, because the claimant didn’t even attempt the job, the Employer was able to put on the stand their Workers’ Compensation claims person who testified to the jobs they would have been able to give claimant had he shown up.

The Commonwealth Court, affirming the decision of the WCJ, held that this was a Kachinski job offer, and concluding that it satisfied the requirements of Eidem v. WCAB (Gnaden-Huetten Memorial Hospital), 560 Pa. 439, 445, 746 A.2d 101, 104 (2000):

The letter in this case refers to Claimant “returning to work,” his “activities at work,” and his regular rate of pay,” such that Employer clearly intended for Claimant to return to his pre-injury job, rather than to an alternative position. R.R. 88a. The restrictions set forth in the Work Capability Chart were attached to the letter which contained assurances that they would be accommodated. In fact, Carrara [the Employer representative responsible for Workers’ Compensation Claims] testified that if while working in a modified capacity Claimant finds that he is experiencing difficulty, Employer would make further accommodations as may be necessary. Thus, while the letter does not state specifically what Employer intended for him to do upon his return to work, having been employed in the job in the past, Claimant should be well as aware of what portions of his job he could do within his restrictions.

We conclude, therefore, that Employer’s May 14, 2008 letter contained sufficient information to enable Claimant to make an informed decision about whether the proposed position was within his capabilities. Thus, we hold that the WCAB did not err by finding that Employer met its burden of proving sufficient notice to Claimant of an available job under the [PA Workers’ Compensation] Act.

If the Employer’s letter in this case was sufficient for claimant to lose his benefits, any letter would be sufficient IF THE CLAIMANT DOESN’T FIGHT BACK. The message to all Claimants is loud and clear: if your employer offers you a job and you don’t feel it’s a real job or that you could possibly do it, you must retain a seasoned workers’ compensation attorney to guide you through the process of rejecting the job offer. The attorney must do a very careful review of all of the facts, and must be with you 150% of the way. There are ways around this situation, but none that a Claimant could possibly manage without guidance from an experienced workers’ compensation attorney.

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