By: Lisa A. Miller, Esquire
The Court affirmed the Decision of the Appeal Board which denied the Claimant’s request for a reinstatement of temporary total disability benefits.
The Claimant sought a reinstatement after Defendant declined to give him a job. The Board affirmed the holding of the WCJ which noted that because Claimant had previously refused a light-duty job in bad faith, he was required to show that his work injury had worsened, and he was unable to do the light duty job before he could be reinstated to temporary total disability benefits. The Claimant was not relieved of this burden simply because the job he had refused in bad faith was a position funded by the Employer.
On July 28, 1995, the Claimant injured his leg when a ditch he was working in collapsed. Defendant accepted liability for the injury, and began paying the Claimant temporary total disability benefits of $509.00 per week.
Defendant referred the Claimant to Expediter Corporation, a company that helps employees return to work. Expediter found the Claimant a full-time sedentary job with Information Direct, Inc. (IDI), working forty (40) hours per week in a telephone customer service position. The job was funded by Employer, paid less than Claimant’s pre-injury wage, and the Claimant’s physician approved the job.
The Claimant began working in October 2004. IDI moved Claimant to a second office in March 2005, and a third office in August 2005. The office moves were necessitated by problems in the offices, which included a heating malfunction and a mouse infection. When Claimant noticed mouse feces in paperwork that had been transported from the second office location to the third, Claimant quit the job on the spot, concluding that the Defendant was “playing games” with him.
The Defendant filed a Modification Petition, and the WCJ found that the IDI telephone job fell within Claimant’s capacities, but became unavailable to Claimant in January 2005, when the office heating malfunctioned. However, the job later became available to Claimant by August 19, 2005, at the third office location. The WCJ found that the Claimant refused in bad faith to work the IDI position. Therefore, the WCJ modified Claimant’s benefits to the partial disability rate of $374.86 per week based on what he would have earned at IDI “commencing on August 19, 2005, and continuing into the future until such time as Claimant’s disability changes in nature or degree.”
Both parties appealed, and the Board granted Defendant’s appeal by extending the period of partial disability benefits for the entire period of time the Claimant worked at the job from October 15, 2004 until January 23, 2005. The Claimant filed a Petition for Review, and the Commonwealth Court affirmed the Board. Napierski v. WCAB (Scobell Company), Pa Cmwlth., No. 1515 C.D. 2008, filed January 28, 2009. The Supreme Court denied the Petition for allowance of appeal Napierski v. WCAB (Scobell Company), 603 Pa. 706, 983 A.2d 1250 (2009).
On June 30, 2010, Claimant asked Employer to fund a job for him so that he could return to work. The Claimant did not receive a response from the Defendant, and filed the instant Reinstatement Petition, seeking to have his partial disability benefits reinstated to total because the funded employment was no longer available to him. Defendant filed an Answer denying that Claimant was entitled to a reinstatement for that reason.
The parties stipulated that the issue before the WCJ was purely a legal one. The parties stipulated that when the prior litigation did not produce a favorable result for the Claimant he asked Employer to make the funded job available to him again. Employer declined because it believed it was not legally entitled to do so.
The WCJ denied Claimant’s Petition for Reinstatement concluding that because his benefits had been modified for his bad faith refusal to work, Claimant was required to prove that his medical condition had worsened to the point that he could no longer do the telephone job with IDI. Claimant did not do so. The WCJ found it irrelevant that the job was a funded position because job availability was no longer an issue. The WCJ concluded that it would be “unfair to allow a Claimant to avoid the legal determination of bad faith in refusing available, modified employment by years later asking for the job” and again forcing the Defendant to show job availability.
Claimant argued that the WCJ and the Board erred because funded employment presents a special situation that should not be governed by precedent established in the context of Claimant’s bad faith refusal to take a light duty job. Claimant believes that leaving a funded job in bad faith does not relieve the Defendant of having to provide a job to Claimant who comes to regret his earlier refusal of a job. Defendant contends that the nature of the employment refused, whether funded or not, is immaterial.
A Claimant is entitled to a reinstatement of benefits if he can show that the reasons for suspension or modification no longer exist. 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. Dillon v. WCAB (Greenwich Collieries), 536 Pa. 490, 502-504, 640 A.2d 386, 392 (1994). The Claimant is entitled to a reinstatement to total disability where his light duty job has been eliminated, and that the Employer can not show that there is other employment available to the Claimant. Bethlehem Steel Corp. v. WCAB (Laubach), 563 Pa. 313, 321-22, 760 A.2d 378, 382-83 (2000).
A Claimant’s burden of proof is different where his benefits have been modified because of his bad faith conduct. Ward v. WCAB (City of Philadelphia), 966 A.2d 1159, 1162 (Pa. Cmwlth. 2009). In this context, bad faith does not mean “overt malfeasance on the part of the Claimant, but merely the characterization of Claimant’s action for refusing to follow up on a job referral without sufficient reason”. Johnson v. WCAB (McCarter Transit, Inc.), 650 A.2d 1178, 1180 (Pa. Cmwlth. 1994).
In Spinabelli (Massey Buick, Inc.), 614 A.2d 779 (Pa. Cmwlth. 1992), the Claimant’s benefits were modified to partial disability after he refused two (2) light duty positions that his Employer had offered him. Three (3) weeks after the WCJ issued his Decision, the Claimant offered to return to work, but his Employer informed him that the light duty jobs were no longer available even though the positions had never been filled. The Court noted that when there is a finding that the Claimant has failed to pursue jobs in good faith, “we do not believe the Employer has the responsibility of keeping a job open indefinitely, waiting for the Claimant to decide when he wants to work.” Id. at 780. In order to receive a reinstatement of total disability benefits, a Claimant must prove a change in his condition such that he could no longer perform the job previously offered to him.
The Supreme Court adopted this reasoning in Pit Ohio Express v. WCAB (Wolff), 590 Pa. 99, 912 A.2d 206 (2006) holding 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 explained that
“an Employer cannot be given a never ending duty to keep a job available for Claimant who rejects it in bad faith. If we allowed a Claimant to reject a job in bad faith and place a burden on the Employer to provide the Claimant another job whenever he chooses, we would reward bad faith conduct and circumvent the purpose of the Act.”
Once a Claimant has refused an available job in bad faith his Employer’s obligation to show job availability ends. Bennett v. WCAB (Hartz Mountain Corporation), 632 A.2d 596, 600 (Pa. Cmwlth. 1993). Claimant must “live with the consequences of his decision” meaning that he cannot remedy the situation “by subsequent action” such as attempting to set the job that was previously offered Johnson, 650 A.2d 1182. Instead, the Claimant must show a worsening of his medical condition to be granted a reinstatement to total disability. Ward, 966 A.2d at 1162.
Claimant argues that because it was not established in the earlier litigation whether the funded job was going to be indefinite or temporary, Defendant must again offer him a job. Second, Claimant argued that because the funded job was created specifically for him, Defendant could easily do it again.
Claimant relies on General Electric Company v. WCAB (Myers), 578 Pa. 94, 849 A.2d 1166 (2004). In General Electric, Expeditor has set up a customer service telephone job for the Claimant. When the Claimant refused the job, the Employer filed a Modification Petition. Finding the job was within the Claimant’s capabilities and refused in bad faith, the WCJ modified the Claimant’s benefits. However because the evidence showed that the job was to be funded only for ninety (90) days, the WCJ only modified benefits for ninety (90) days. The Court affirmed, as did the Supreme Court. In doing so, the Supreme Court held that funded employment is a legitimate way for an Employer to return an injured Claimant to work. However, if the job is “only temporary available from the outset, meaning that the Claimant is bound to lose the job through no fault of his own at a definite point in the future,” then Claimant’s benefits can only be modified for the duration of the Employer’s subsidy.
However, Myers was in inapposite. The issue in Myers was a modification of benefits not a reinstatement. Here, the parties already litigated the modification of Claimant’s benefits, and Claimant did not present any evidence that the funded job was of a limited duration. For that reason, the WCJ modified Claimant’s benefits on an ongoing basis, without limitation.
The Claimant argued that because the job was specifically created for him, Defendant can make the job available for him again. However, there was no evidence to support the assertion. The only evidence from the modification litigation was that the Expeditor Corporation found the Claimant a job with IDI. Claimant interviewed for the job and was hired. It is not known whether the job was created or already existed, but it did not matter. Once the Claimant refuses any kind of job in bad faith, whether funded or specially created for the Claimant, job availability ceases to be an issue. It does not matter that a Defendant might be able to provide another job for the Claimant; it cannot be forced to do so more than once.
Claimant refused in bad faith to work at a job that he was capable of performing. In order to have his benefits reinstated, he was required to prove that his physical condition had worsened to the point that he could not perform the position at IDI. He did not do so.
