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Workers Compensation News Winter 2017

PA Workers' Compensation Cases of Note

By John W. Zatkos, Jr., Esq.

 

Injured Workers Should Attempt Modified Duty Positions in Good Faith

In Gaye v. Elwyn, Inc., the Workers’ Compensation Appeals Board (WCAB) found that the Workers’ Compensation Judge (WCJ) was not in error when granting a petition to modify benefits based on a job offer. In this case, the worker suffered a left shoulder sprain in the winter of 2014. In the fall, the WCJ noted that the employer submitted into evidence a copy of the letter from the Director of Risk Management with a Notice of Ability to Return to Work and a copy of the medical report releasing the injured worker to light duty. The description of the position in a light duty capacity was noted in the cover letter with the enclosed documents.

The injured worker argued that the job offer letter was insufficient.  He submitted into evidence a letter from his counsel that advised neither the injured worker nor his physicians thought he was capable of the light duty job.

Pre Act 57 standards are still applied to specific job offers.

  1. The employer must first produce medical evidence of a change in condition.
  2. The employer must produce evidence of a referral to a then open job in the occupational category for which the claimant has been given medical clearance.
  3. The injured worker must them demonstrate that he has followed through on the job referral in good faith.

The WCJ found the medical opinion of the employer’s physician that the injured worker could perform the job which was offered more credible. She also accepted the employer’s testimony that the job would be modified to suit the injured worker’s needs. Because the injured worker did not follow through and try the position, the WCJ granted the Petition to Modify Compensation Benefits and the WCAB upheld that decision on appeal.

What does this mean? The purpose of this case is to show that any job offers made by the employer and whether or not they fit within the injured worker’s physical limitations requires that the injured worker act in good faith by attempting to perform the job and show whether or not accommodations will truly be made available. Failure to actually attempt the modified duty position offered by the employer based upon a medical report can easily result in the employer winning the case because it greatly reduces the injure worker’s ability and credibility to defend against such a claim.

While Rare, There Are Exceptions to the Coming and Going Rule

In Neff v. US Airways Inc., the worker is a flight attendant who lives in Florida but works in a “reserve-on-call” position where all of her flights originate in Philadelphia, so she shares an apartment there as well. While traveling from Florida to Philadelphia to be available for Reserve on Call status beginning at midnight, she was injured when a shuttle driver shut the door on her, causing her to fall and sustain injuries to her left side.

The employer argued that the WCJ erred in determining that the worker was injured during the scope of employment, citing the “coming and going” rule (which means commuting to and from work is not considered within the scope of employment). The WCJ found, and the WCAB agreed, that the injured worker was a Traveling Employee, as she had no fixed place of work and was on reserve-on-call status at the time of the injury. The WCAB granted not only the claim petition, but penalties against the employer as well.

What does this mean? This shows the importance of a case by case review of Workers’ Compensation matters and injures to workers who are told by their employer that they are not covered by Workers’ Compensation because they were traveling from their residence or home and hurt on the way. In some situations, depending on the facts, this may not be applicable. It also demonstrates the importance of developing a case and the injured worker’s testimony as to the exact nature and time of injury and looking at issues regarding “reserve on call” or requirements to be on call.

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