Claimant must prove disability from date of refusal of modified-duty job through date the record closes.

In a reinstatement petition, the claimant must show disability from the date of refusal of a modified-duty job through the date the record closes in the proceedings.

Tyson Shared Services, Inc. v. WCAB (Perez); 1048 C.D. 2019; filed Feb. 3, 2020; Judge Covey

The claimant sustained a work-related injury to his right shoulder, and after returning to work, he underwent right shoulder surgery. The claimant then filed a claim petition. During the course of litigating that petition, the claimant’s surgeon released him to return to work with restrictions. The employer then sent the claimant a letter, requesting a return to work on March 2, 2015, in a modified-duty capacity. The claimant did not return to work. The employer subsequently issued a medical only notice of compensation payable, describing the claimant’s injury as a right shoulder rotator cuff tear.

The judge dismissed the claim petition and suspended the claimant’s benefits as of March 2, 2015, based on his failure to return to work. In March of 2017, the claimant filed a reinstatement petition, alleging that his injury worsened after a third surgery was performed in August 2016. In its answer, the employer admitted to a reinstatement of temporary total disability benefits for a limited period of time. The judge concluded the claimant was unable to work while recovering from the August 2016 surgery, but, based on an October 25, 2016, note from his surgeon releasing him to return to modified-duty work, the judge suspended benefits as of that date. The judge further found credible the testimony from the defendant’s expert, who reviewed the 2015 modified-duty job offer and testimony concerning the duties of that position and gave the opinion that the claimant was physically capable of performing the duties of that job as of October 25, 2016. The defendant’s expert also performed an IME of the claimant in August of 2017.

The claimant appealed to the Appeal Board, arguing that the judge erred because the defendant’s medical expert did not examine the claimant until August 2017, yet testified the claimant was able to perform the duties of a job offered in 2015 as of October 25, 2016, the date the claimant’s surgeon released him to modified-duty work. The Board affirmed but modified the suspension date to the date of the IME.

On appeal to the Commonwealth Court, the employer argued that the judge properly suspended benefits as of October 25, 2016. The Commonwealth Court agreed and reversed the Board. According to the court, the factual issue in the case was whether the claimant’s loss of wages was caused and continued to be caused by his work-related injury. Given that the claimant was found to have wrongly refused the 2015 job offer, it was the claimant’s burden to show, through the pendency of the reinstatement proceeding, a change in his condition such that he could no longer perform the job that was offered to him.

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