Whether tis nobler to suffer the outrageous slings of compensationitis, or to take arms against a sea of injections, sign for the certified job offer letter, and return to work, as requested by your employer, and as opined by the independent medical examiner.

Interesting issue, albeit narrow, in Vaughn v. WCAB (Carrara Steel Erectors), an opinion decided by the Commonwealth Court on March 11, 2011, although the Court designated the previously-reported Memorandum Opinion as a Reported Opinion on June 3, 2011, meaning that our compensation lives have been made procedurally and administratively much more simple, as blurred lines, and the narrow issue being the efficacy of the employer’s job offer letter, have now been highlighted, as black letter law.

The issue is simply how much detail is necessary, in a job offer letter, asking an injured employee receiving workers’ compensation benefits, to return to work with the pre-injury employer, when the job offer letter simply refers to the injured employee being released to return to work and there being work available for him/her, the question being is that sufficient to establish that the injured employee has been provided the proper notice, to know what kind of work he/she will be doing, and whether that work is within his/her physical capacities, upon returning to work.

If only this were as brilliant as the Guinness commercial, but no, it is about the certified letter, and the “I don’t think I can do that job” voice mail on the risk manager’s phone, some 3 days after the much-anticipated return-to-work date has passed.

Oddly enough, this probably feels like familiar territory, as all of us have experienced the panic attack associated with preparing the formulaic but definitive job offer letter that all of us know will eventually be heavily scrutinized by Claimant attorneys, seeking impeachable vagaries, in their diction and syntax, all the while quibbling over nuances of whether the job is fact or fiction, available versus contrived, simply to modify the weekly workers’ compensation benefit payment check.

In Vaughn, the classic sequence leading up to the employer filing a Suspension Petition, included the employer securing an independent medical examination report releasing the injured employee, a union pipefitter, to return to restricted-duty work with the pre-injury employer, and although there is no specific reference of the injured employee being served with a Notice of Ability to Return to Work, presumably the NOATRTW was issued to the Claimant before the pre-injury employer offered the injured employee a return-to-work position, confirming the job offer, with a job offer letter that essentially indicated that the Claimant had been medically released to return to modified-duty work, that a job was available for the injured employee, and that he was expected to return to work on a date certain.

Well, there would not really be much point to this case digest if the injured employee had returned to work, the point being that he did not, advising the employer he did not feel physically capable of returning to work, and that he had not been released to return to work by his treating physician.

A few claim facts may or may not put this case in perspective. The Claimant became an injured employee, sustaining a back injury while working as a union ironworker, on July 23, 2005. The claim was not immediately accepted, the Claimant filed a Claim Petition, and two years later, the Claimant was awarded workers’ compensation benefits by a WCJ.

Five months after the workers’ compensation award, the Claimant was referred to an independent medical examination, with the IME physician offering an opinion that the Claimant could return to work in a modified, medium-duty capacity, executing a Work Capability Chart, under which the Claimant would be permitted to lift and carry up to 25 lbs., as well as other appropriate work restrictions.

A few months later, the employer paying workers’ compensation benefits authored and sent a letter to the Claimant, indicating:

“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. 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.”

May 19, 2008 came and went, with the Claimant being a “no show/no call”, prompting the employer to file a benefit-challenging Suspension/Modification Petition.

Over the course of hearings before the WCJ, the employer presented its medical evidence, the IME physician’s testimony, and the testimony of the employer witness, concerning the job offer letter, and the availability of work for the Claimant, when the job offer letter was authored and issued.

Critical in the testimony of the employer witness was testimony that the job being offered to the Claimant would be “modified”, from the Claimant’s pre-injury job, which was working as a steel fabricator, and that none of the work offered to the Claimant would require the Claimant to exceed the physical restrictions imposed by the IME physician.

Opposing the benefits-threatening petition, the Claimant testified that he would not be able to perform the job, due to the chronic pain associated with his injury, after which the Claimant presented the testimony of his treating physician, that the Claimant was incapable of performing the modified-duty position offered by the employer.

Four years after the Claimant’s original injury, the WCJ granted the employer’s petition, finding the employer’s witness to have been credible, concerning the availability of the modified-duty job offered to the Claimant, and the WCJ further accepted the testimony of the IME physician, finding that physician’s testimony more credible than the Claimant’s physician, as to the Claimant’s ability to perform the work offered by the employer.

So far, so good, as you seek the reduction of claim exposure.

The WCJ’s Decision was then affirmed by the Appeal Board, as is routinely the case, and an appeal followed to the Commonwealth Court. The narrowly-drawn issue before the Commonwealth Court was the sufficiency of the information provided by the employer in the job offer letter sent to the Claimant as to what the Claimant would be required to do, if the Claimant returned to work, and accepted the modified-duty position.

Arguing that the employer never met his burden of proving that the job offer letter “sufficiently notified him of an available job”, the Claimant argued that Kachinski (by the way, anyone know what happened to Kachinski, we mean the Claimant, as we have been trying to get in touch with him?), that the employer’s job offer letter lacked the sufficient specificity, to allow the Claimant to make a determination as to whether the position was suitable for him, notwithstanding a long line of workers’ compensation decisions, to include from both the Commonwealth Court and the Pennsylvania Supreme Court, that job offer letters must be “reviewed in a common sense manner in order to determine whether a suitable position has been made available to the Claimant”. Eidem v. WCAB, (Gnaden-Huetten Memorial Hospital) 746 A.2d 101 (Pa. 2000).

The key distinction is if the employer is offering a return-to-work position that involves a job that the injured employee had not performed pre-injury, as opposed to the employer offering the injured employee a position that the injured employeehad performed and been familiar with prior to the work injury.

As was held in Eidem:

“Where the employee is offering Claimant a light duty position in which he has previously worked, no job position or duties must be specified … the employer need not specify a job position or duty since the Claimant can ‘reasonably assume that he is being offered the same position’ that he has previously worked, and thus, is familiar with the requirements of that position”. Id., 746 A.2d at 105.

Holding that the job offer letter in Vaughn clearly set forth the employer’s intention to bring the Claimant back to work in his pre-injury job, rather than an alternative position, the Commonwealth Court affirmed the Appeal Board’s affirmation of the WCJ’s decision, modifying the Claimant’s compensation benefits, on grounds that the employer had satisfied its required burden of proving that available work was offered to the Claimant, and that the Claimant failed to return to work as required under the Act.

Limited in its holding, Vaughn is nevertheless instructive, as to the sufficiency of job offer letters, always dependent upon whether the injured employee is being offered a position with the pre-injury employer, that the injured employee is already familiar with and has performed, as opposed to a job that the injured employee never performed, is not familiar with, and/or would involve some alternative type position, perhaps with another employer; if the work being offered cannot be considered to be work that the injured employee is familiar with, greater specificity is obviously required in the job offer letter, in which case it is recommended that the job offer letter contain very specific information, such as:

a) The date for the injured employee to return to work;

b) The person that the injured employee should contact on returning to work;

c) The title for the job position being offered to the injured employee;

d) The specific duties and physical requirements of that position, to include enclosing medically-approved work restrictions/capabilities, sufficient to provide the injured employee with notice as to what the offered job would require the injured employee to do, in the often unlikely scenario where the injured employee does attempt to return to work;

e) Details regarding the work hours and rate of pay that is being offered to the injured employee;

f) Specificity as to the days of the week that the injured employee is being asked to work; and,

g) Benefit information, if applicable, associated with the offered position.

No less true, the job offer letter, irrespective of whether it is offering the injured employee a return-to-work with the pre-injury employer, or any other employer in the known universe, will never be considered to be a valid job offer, unless that job offer follows, or is accompanied by an NOATRTW, advising the injured employee that he/she has been medically released to return to work.

– By Kevin L. Connors

ConnorsLaw LLP

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