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


See:Buffford v. WCAB (North American Telecom),________A.2d ________(Pa. 8/17/2010).

Claimant sustained a work injury in 1998 when he was struck by a car. He returned to light duty work with the time of injury employer one month later. Five months after such return to work, Claimant voluntarily left the time of injury employer for a new job at a different employer with a higher pay and less onerous physical job requirements. Four and a half years later, Claimant was laid off for economic reasons. At this point, the time of injury employer had permanently closed its only facility in Claimant’s geographic area.

The WCJ denied Reinstatement Petition noting that any loss of earning was caused by the lay-off from the subsequent employer and not worsening of the work related injury. On remand, the WCJ continued to deny petition noting that Claimant had initially voluntarily left his light duty job with the time of injury employer. The Board and Commonwealth Court affirmed.

The Supreme Court reversed. The Court recognized the Commonwealth Court precedent which indicated “an injured worker who leaves employment with the time of injury employer to take employment with another employer for reasons unrelated to the work injury assumes the risk that such subsequent employment may end in discharge.” Welsh v. WCAB (L.W. Miller Roofing Co.),686 A.2d 59 (Pa. Cmwlth 1996) and Horn v. WCAB (Chalmers & Kubeck), 840 A.2d 460 (Pa. Cmwlth 2004). The Supreme Court stated that these cases misinterpreted Pieper and were “specifically disapproved.” The Court explained that the Commonwealth Court was not at liberty to class voluntarily departures from work (Bufford) and involuntarily departures from work (Stevens) as “fault” for purposes of disqualifying injured workers from having benefits reinstated. The court explained fault is not subject to the accretions of judicial interpretation, but instead is governed by the traditional good faith/bad faith analysis of Kachinski.

The Court announced:

“Thus, in accordance with Section 413(a), we modify the Pieper and Stevens standard in the following manner. A Claimant seeking reinstatement of suspended benefits must prove that his or her earning power is once again affected by his or her disability, and that such disability is a continuation of that which arose from his or her original claim. The Claimant need not re-prove that the disability resulted from a work-related injury during his or her original employment.

Once the Claimant meets this burden, the burden shifts to the party opposing the Reinstatement Petition. In order to prevail, the opposing party must show that the claimant’s loss in earnings is not caused by the disability arising from the work related injury. This burden may be met by showing that the Claimant’s loss of earnings is, in fact, caused by Claimant’s bad faith rejection of available work within the relevant required medical restrictions or by some circumstance barring receipt of benefits that is specifically described under provisions of the Act or in this Court’s decision of law.

We hold that a Claimant remains eligible for reinstatement of suspended benefits where the Claimant’s employment with a post-injury employer is terminated, even where the Claimant had previously performed modified post-injury duties for the time of injury employer.

Practice pointer:In reviewing a claim for reinstatement, we must now acknowledge that if claimant voluntarily left his time of injury employer for higher wages and is subsequently laid off, he most likely will be entitled to a reinstatement of benefits. However, updated IME is warranted. Moreover, the employer can still prove fault of the employee by establishing termination for bad faith conduct or bad faith action in leaving time of injury employee.