Posts Tagged ‘commonwealth court’

In Knechtel v. W.C.A.B. (Marriott Corporation), 934 A.2d 697 (Pa. 2007) the Pennsylvania Supreme Court affirmed an earlier order issued by the Commonwealth Court regarding the issue of whether an injured worker’s health care provider may attend and observe a medical examination scheduled by the defendant employer. Jusice Baer, in his concurring opinion, noted that the Pa. state legislature intended to allow the claimant’s health care provider “a first-hand view of the examination process, through attendance and observation”, but also noted that the legislature did not intend to permit the treating health care provider to engage in any active conduct which might disturb the examining physician and the examination process. Justice Baer went on to state that nothing in the Court’s affirmance of the Commonwealth Court’s opinion, “limiting a healthcare provider to attending and observing an employer’s physician’s examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam”. Justice Baer also indicated that a workers’ compensation judge “retains the discretion to grant a claimant’s reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer’s physician’s ability to conduct an examination”.

In the case of Cleary v PennDot, the Commonwealth Court ruled that it was proper to hold PennDot in contempt of Court for not following a Court Order. Mr. Cleary received several traffic citations which were eventually dismissed. In the meantime PennDot issued a notice of license suspension. Mr. Cleary appealed to the Court. After a brief hearing the trial judge ordered PennDot to correct Mr. Cleary’s driving record. When PennDot failed to follow the Court order, the trial judge held PennDot in contempt of court and ordered it to pay a $1400.00 penalty. The trial judge’s decision was upheld and PennDot was ordered to pay the penalty.

The Commonwealth Court has ruled that a County law requiring that all people entering a courthouse to pass through a metal detector does not violate the Constitution. In Minich v Jefferson County, Mr. Minich attempted to enter the Courthouse while possessing concealed handguns issued pursuant to valid gun permits. Mr. Minich refused to be searched and was denied entry into the building. Mr. Minich sued claiming his Constutional rights against unreasonable search and seizure were violated. The Court found Mr. Minich to be incorrect and held that the County had the right to protect the public and it’s employees from possible harm. If Mr. Minich wants to enter the Courthouse he will need to agree to be searched.

The Pennsylvania Supreme Court has ruled that an offer of a job to an injured worker who moved out of state for family reasons is insufficient grounds to suspend her workers’ compensation benefits. In Motor Coils Mfg. v. WCAB (Bish), (decided December 27,2006) the Court affirmed the prior decision of the Commonwealth Court denying an employer’s suspension petition for failure to accept a job offer at the employer’s Pennsylvania plant.
In Bish, the claimant suffered a work injury in July of 1997. After surgery, she returned to work with her employer at a modified position in June of 1998. In the summer of 2000, the employer laid off 126 employees including the claimant and her husband. Claimant’s wage loss benefits were reinstated effective the date of the layoff.
In November of 2000, claimant’s husband accepted a job offer in Oklahoma. Claimant relocated to Oklahoma with her husband. She sought employment but was unable to locate any jobs within her capabilities. In March of 2001, the employer offered claimant the modified job she was performing when she was laid of. The position was at the Pennsylvania plant where the claimant had worked. Claimant refused the job offer as she was living in Oklahoma. The employer filed a petition to suspend wage loss benefits alleging the claimant, Mrs. Bish, did not act in good faith when she refused the job offer.
The Commonwelth Court and the Pa. Supreme Court disagreed noting that the claimant’s actions in relocating to Oklahoma were in good faith. The Court specifically stated that the job in Pennsylvania was not actually available to the claimant as it was not within reach of her current residence.

Thomas P. Cummings, Esq.

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