Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225


See: Presby Homes & Services v. WCAB (Quiah) ______ A.2d ______ (Pa. Cmwlth. 11/5/09).

Claimant had worked for the employer as a certified nursing assistant. On 6/4/07 claimant was bathing a non- ambulatory resident when such resident fell backward onto claimant’s left arm. The employer initially issued a Notice of Temporary Compensation Payable on 6/13/07 describing injury as lumbar strain/strain. Claimant thereafter filed a Claim Petition alleging low back and left wrist injury causing disability. On 8/30/07 employer issued a Notice Stopping Temporary Compensation and a medical only NCP based on failure to return to modified duty position.

The WCJ accepted the testimony of employer’s medical expert over that of claimant’s expert regarding work restrictions. Both physicians had diagnosed disc herniation at L4-5 with radiculopathy at L5 on the right side.

Employer representative testified that a modified duty certified nursing assistant job was offered to claimant and described the duties of same. The four page written job description ended with a “receipt and acknowledgement” section that contained a provision indicating that “employment is at will.” Additionally, it was noted that the “job duties, tasks, work hours and work requirements may be changed at any time.”

Accordingly, although the Judge accepted the testimony of employer’s medical expert, the WCJ concluded that employer failed to establish a modified duty position had been made available, reasoning, sua sponte, that because the modified duty position was at will and the duties could be revised by the employer, there had been no valid job offer.

The court noted that the effect of these provisos has nothing to do with the employer witnesses’ credibility. Instead, their affect on the validity of employer’s job offer is a pure question of law. The court concluded that the Judge’s reasoning was unfounded as a matter of law. The court explained the acknowledgement provisos did not render employer’s job offer either illusory or invalid. The “at will” proviso was of no moment to the question of whether employer made a modified duty job available to claimant. This is where Pennsylvania is an at will employment state, meaning that, absent a statutory or contractual provision to the contrary, either party may terminate an employment relationship for any or no reason. Employer could terminate modified duty work for any number of reasons that have nothing to do with her workers’ compensation claim such as down sizing or misconduct. No job, including claimant’s modified duty job, is guaranteed for life. Thus, the court stated that the employer did not act in bad faith by including language to that effect in the job description.

Similarly, employer did not negate the availability of the modified duty position by reserving the right to change claimant’s job duties, tasks and work requirements. Employer went to the trouble of creating a modified duty position for claimant that satisfied the physical restrictions imposed by its own independent medical examiner. The court opined “it is implicit that any subsequent modifications to the essential duties of the position must also fit within claimant’s restrictions. If, in the future, employer imposes duties on claimant that exceed her limitations, she is not without recourse; claimant can file a petition to reinstate total disability benefits.” Accordingly, the court concluded that claimant’s benefits were suspended effective the date of the modified duty work availability.

Practice Pointer: Again, this case illustrates the effectiveness of the job offer remedy. Where claimant sustained a serious disc herniation with resultant radiculopathy, the employer was still able to establish suspension based on job availability.