On December 27, 2006, the Pennsylvania Supreme Court issued a decision holding that a claimant’s prior “bad faith” in failing to accept a job position offered by his employer relieved the employer of the duty to establish subsequent job availability. In the case of Pitt Ohio Express v. WCAB (Wolff), No. 54 WAP 2005, the Court upheld the “bad faith” standard previously enunciated in Spinabelli v. WCAB (Massey Buick, Inc.), 614 A.2d 779 (Pa. Cmwlth. 1992), and followed in JA Jones Construction Co. v. WCAB (Nelson), 784 A.2d 280 (Pa. Cmwlth. 2001).

In Wolff, the claimant had failed to accept an offered position with the employer for which he had been medically released. On the initial petition to suspend wage loss benefits, the Workers Compensation Judge (WCJ) held that the claimant had refused the offer in “bad faith” and benefits were suspended. Wolff subsequently had back surgery that was related to the work injury. He was voluntarily placed on total disability and paid wage loss benefits as of the date of the surgery.

When his condition improved post-surgery, the employer filed a another petition to suspend on the basis of the job previously offered, the claimant’s previous “bad faith” in failing to follow through on the job offer and that the claimant’s condition had improved to the extent that he could have performed the job that provided the basis of the prior suspension petition. The claimant argued that the employer should again have to prove job availability due to a change in circumstances. The employer argued that the claimant’s previous “bad faith” in failing to return to work per the previous job offer relieved them of the duty to show job availability under the Spinabelli and JA Jones precedent. The WCJ granted the suspension holding that the employer did not have to demonstrate job availability. The WCAB reversed, but Commonwealth Court reinstated the WCJ decision based on its prior precedent.

The Pa. Supreme Court has affirmed the Commonwealth Court and held that “an employer will not be forced to prove job availability following a period of total disability after an employee has made a bad faith rejection of an available modified position”.

The Court further stated “claimant’s bad faith relieved employer of the requirement to again demonstrate a continued suitable position was available. An employer cannot be given a never-ending duty to keep a job available for a claimant who rejects it in bad faith. If we allowed a claimant to reject a job in bad faith and then place a burden on the employer to provide the claimant another job whenever he chooses, we would reward bad faith conduct and circumvent the purpose of the Workers’ Compensation Act.”

If you have been injured at work, it’s important to fully understand your rights and what benefits you may recover. It is also important to understand, as the Wolff decision shows us, your duties and obligations with respect to how you should respond to job offers made by your employer post-injury.

If you should have any questions regarding your workers’ compensation case, call me, Attorney Tom Cummings, at (570) 347-1011 or email me at [email protected]

Thomas P. Cummings, Esq. December 29, 2006