What Can Go Wrong when an Injured Worker Refuses a Modified-Duty Job Offer? A Lot
A recent ruling by the Commonwealth Court of Pennsylvania demonstrates how a single decision made by an injured worker during the course of a workers’ compensation claim can have serious long-term consequences.
In Tyson Shared Services v. Workers’ Compensation Appeal Board (Perez), a worker suffered a right shoulder rotator cuff tear on Dec. 3, 2014, while working as a mechanic and required two shoulder surgeries. After his second surgery, the worker’s employer offered him a modified-duty janitorial position beginning March 2, 2015, consistent with his surgeon’s work restrictions and with no earnings loss. The worker, however, refused the position, and a workers’ compensation judge subsequently suspended his disability benefits due his failure to take the job offer.
Subsequently, the worker’s right shoulder worsened, and he underwent a third surgery on Aug. 10, 2016, and sought to reinstate his workers’ compensation benefits. When he testified before the workers’ compensation judge in March 2017 in support of his Reinstatement Petition, the worker stated that he could not return to work in any fashion. However, on cross-examination he admitted that he last saw the surgeon on Dec. 6, 2016, and that, consistent with the surgeon’s office notes, the surgeon imposed a 20-pound lifting restriction when lifting with both hands, with no more than 10 pounds of lifting using just the right arm. The worker also acknowledged that the surgeon had released him to light-duty work before the Dec. 6, 2016 visit, but testified that he could not recall the specific date.
Another doctor who treated the worker both before and after his third surgery testified on the worker’s behalf. It was his opinion that the worker was not capable of returning to full-duty work after the third surgery. He further stated that he did not believe the worker could perform any work given his right shoulder’s restricted movement and pain as well as other problems relating to his left shoulder.
A doctor retained by the workers’ compensation insurance carrier to evaluate the injured worker testified on the employer’s behalf that the surgeon had cleared the worker for light-duty work effective Oct. 25, 2016. It was his opinion that the worker was capable of performing the duties of the modified janitor job that he had previously refused and that the work restrictions were essentially the same as those imposed on him previously. The doctor also indicated that he, himself, would place the same restriction on the worker.
After hearing the evidence, the workers’ compensation judge found the worker unable to work from Aug. 10, 2016 (date of third surgery) through Oct. 24, 2016 (surgeon cleared the worker to return to modified-duty work the next day). The judge rejected the worker’s medical witness as lacking credibility and found that the worker failed to prove an ongoing disability after his return-to-work date since, as the defense expert explained, he was capable of performing the previously refused janitorial job.
Accordingly, the judge directed the employer to pay the worker benefits only for the period from Aug. 10, 2016, through Oct. 24, 2016.
The worker appealed to the Workers’ Compensation Appeal Board, which affirmed the ruling but modified the suspension-of-benefits date from Oct. 25, 2016 to Aug. 8, 2017, which was the date when the defense expert examined the worker.
The employer then appealed to the Commonwealth Court of Pennsylvania. It contended that the Board mistakenly placed the burden of proof on the employer to prove that the worker was no longer disabled, rather than on the worker to show ongoing disability.
Burden of Proof
In ruling in favor of the employer, the Commonwealth Court cited the authority that shifted the burden of proof to the worker in light of his previous refusal of the modified-duty job:
Ordinarily, a claimant seeking reinstatement of suspended benefits must establish that the reasons for the suspension no longer exist. Specifically, the claimant must establish that, through no fault of his or her own, his or her earning power is once again adversely affected by his or her disability and that the disability which gave rise to the original claim continues. However, in cases where the suspension of benefits is based on a finding that the claimant has failed to pursue job(s) in good faith, the claimant’s burden of proof in a reinstatement petition is different; specifically, the claimant must prove a change in his or her condition such that he or she can no longer perform the job(s) offered to him or her which served as the basis for the earlier suspension.
Accordingly, the Commonwealth Court vacated the Board’s decision and reinstated the workers’ compensation judge’s order that ended benefits on Oct. 24, 2016.
The court did not address why the worker refused to take the modified-duty job in 2015. What we do know is that because of that decision the burden of proof is now on him to prove his ongoing disability whenever he seeks to reinstate his claim for benefits. In this instance, he couldn’t prove his disability beyond Oct. 24, 2016.
As always, if you are injured in a work-related accident, we recommend that you consult with a workers’ compensation attorney as soon as possible to ensure that your legal rights are protected.