• The Commonwealth Court of Pennsylvania Held that there is no Requirement that the Details of a Job Offer Be in Writing and that a Modification or Suspension of Benefits May Be Based on an Oral Offer Made In the Course of Litigation through Testimony.
  • August 7, 2018 | Author: Mary G. March
  • Law Firm: Thomas, Thomas & Hafer LLP - Allentown Office
  • Background

    Claimant sustained a work injury that was accepted by Employer as a knee and foot sprain. Claimant returned to work and suffered an aggravation of his work injury. Claimant did not return to work after the aggravation occurred. Employer offered claimant sedentary duty work as a mail clerk at the Lawrence facility located 40 miles from where claimant previously worked (Monessen) and where he lived. The WCJ denied Employer’s Petition to Suspend Benefits based on this job offer, finding that Employer did not meet its burden of proving that it had offered work to Claimant within his restrictions due to the distance claimant would have to travel and because Claimant’s ability to drive was restricted.

    One year later, Employer again filed a Petition to Suspend Benefits alleging Claimant refused work within in his restrictions. The job offered was again the mail clerk position. It was a sedentary position at the same preinjury wages, but was still located in Lawrence, 40 miles from Claimant’s home and his prior office. During the course of the litigation, the Employer’s human resources coordinator testified before the WCJ on May 4, 2015. During this testimony the witness stated that the same sedentary duty position was now available in Monessen, Claimant’s prior work location close to his home and that Employer was offering this position to Claimant. Employer testified that the Monessen facility was on a public bus lien and the Employer would be willing to pick Claimant up from the nearest bus stop. Further, Employer’s insurer’s claims representative testified that the insurance carrier would pay for the cost of modifying a vehicle owned by Claimant so it could be operated with hand controls only.

    Claimant had testified earlier in the proceedings (February, 2014) that he was unable to accept the job in Lawrence due to his inability to drive and the distance involved. He stated in his testimony that he had no objection to the Monessen location as it was only a mile from his home. After the offer of the position at the Monessen facility, Claimant testified in June, 2015. At this time, Claimant stated he could not take this position due to hills and stairs involved between his home and the bus stop, and that several of his vehicles were not operational.

    The WCJ granted the Suspension Petition finding that the work offered was within the restrictions set forth by Claimant’s physicians. The WCJ founds Employer’s human resources coordinator and claims representative credible and rejected Claimant’s testimony that he could not travel to Employer’s Monessen facility.

    Analysis

    On appeal, the Commonwealth Court instructed that, “A position within the claimant’s physical limitations is not an available job and cannot support the modification or suspension of benefits if there is no means of transportation for the claimant to get to the workplace.” PA Department of Corrections/SCI-Greensburg v. WCAB (Zvara), 948 A.2d. 244, 247-248 (Pa. Cmwlth. 2008). Claimant argued on appeal that the WCJ could not find that Employer offered available work on May 4, 2015 (the date of the human resources coordinator’s testimony), because the Monessen job offer was not fully set forth in writing at that time and the offer to modify one of Claimant’s vehicles with hand controls was not also made in a formal written document. In rejecting this argument, the Commonwealth Court noted that a written job description had been perviously offered to Claimant for the mail clerk position he was offered. The Court stated, There is no requirement that all details concerning a job offer be in witting. Modification or suspension of benefits may be based on an oral offer made in the course of litigation through testimony.” See, Crawford County Care Center v. WCAB (Daly), 649 A.2d 203, 204-06 (Pa. Cmwlth. 1994); Devlin Electric, Inc. v. WCAB (Shurina), (Pa. Cmwlth., No. 837 C.D. 2013, filed 9/24/14), slip op. at 20.

    Take Away

    This case is a win for employers who keep trying to find work within a claimant’s restrictions. Keep offering work when new positions open up that may be more favorable to your desired outcome. The offer to modify the car controls was creative and helped Employer defeat Claimant’s objection to being able to drive. Finally, the lack of a written documents spelling out these offers was not required. One caveat: the Job Description had been previously given to Claimant and this job description had been approved by Claimant’s treating providers. Without a job description having been provided the outcome may have been different.