• Workers’ Compensation: The Employers’ Burden in Suspension Cases
  • May 11, 2012 | Author: Joshua L. Schwartz
  • Law Firm: Barley Snyder - Lancaster Office
  • When an injured worker is released to return to work in some capacity, demonstrating job availability is generally crucial to obtaining a suspension of workers compensation benefits. Intentionally or not, Claimants can and sometimes do misrepresent to judges whether and what type of work they have been offered, so a written job offer is often the key to proving an employer’s case.  However, there are certain circumstances under which an employer may obtain a suspension even if no jobs are available. Several recent cases elaborate on what an employer must prove to obtain a suspension.

    In Vaughn v. WCAB (Carrara Steel Erectors), the Court examined what an offer letter must include to sufficiently place an employee on notice of work availability. The claimant had suffered a back injury in 2005, and an independent medical examination in January 2008 resulted in specific physical restrictions. In May 2008, the employer sent a job offer letter stating that it would accommodate the doctor’s restrictions. Though the offer letter did not list a job title, duties, or tasks, the Court noted that the claimant was familiar with his pre-injury job and would understand what portions of that job he could perform. Under these circumstances, an offer letter need only inform the claimant that there is work available within a physician’s specific restrictions and include some accommodation language.  We recommend being as specific as possible in job offer letters to eliminate a claimant’s argument that he or she did not understand the work available, but the case demonstrates that it is easier to defeat this argument when the work being offered is a modified version of the pre-injury job.

    An employer need not show job availability when an injured worker has “voluntarily withdrawn” from the workforce. It is the employer’s burden to prove this voluntary withdrawal under the totality of the circumstances, but this can prove difficult. In Keene v. WCAB (Ogden Corp.), an employer sought to suspend benefits without making work available, noting that the injured worker had not looked for work in over two years. The claimant testified that she had stopped looking for work because she became discouraged. Though the Workers’ Compensation Appeal Board held that this failure to look for work indicated a voluntary withdrawal from the workforce, the Court reversed. The Court made it clear that a claimant’s failure to look for work, alone, does not establish voluntary retirement; rather, unless the claimant is receiving a retirement pension or old-age benefits, it is the employer’s burden to demonstrate either job availability or earning capacity, with some other affirmative evidence that the claimant has chosen not to work. The case is somewhat ironic because it appears unlikely that the claimant would have returned to work, had a job offer been made. Therefore, unless the employer truly has no available work within a claimant’s restrictions, and even when an employer believes that an injured worker is unlikely to return or considers herself retired, it is generally a good idea to make a formal job offer when seeking a suspension.

    On the other hand, an employer need not and typically should not make work available to undocumented workers who may be in Pennsylvania illegally. Such undocumented workers are entitled to receive workers’ compensation benefits if they are injured in the course of their employment, but the employer is entitled to a suspension once the injured worker is released to modified duty without proving job availability. Moreover, if the employer knows that the injured worker is undocumented, the employer could face adverse consequences from an immigration standpoint if work is again made available. Nonetheless, the employer has to prove undocumented status to obtain a suspension: In Kennett Square Specialties v. WCAB (Cruz), the employer had assumed it would be entitled to a suspension and did not present any actual evidence of the claimant’s immigration status. The claimant, meanwhile, refused to testify on the subject, citing his Fifth Amendment right against self-incrimination. The Commonwealth Court held that this refusal to testify, alone, could not constitute evidence of undocumented status, so that the employer was not entitled to a suspension absent some affirmative indication that the claimant was in the state illegally.