Judge did not err in dismissing reinstatement petition by finding that claimant was terminated for bad faith conduct after returning to work from work injury.

Following work injuries of May 30, 2017, the claimant returned to work on June 13, 2017, in a modified-duty capacity. After returning to work, the employer issued a medical-only Notice of Compensation Payable acknowledging the injury. Approximately one year later, the claimant was discharged based on his job performance. He then filed a reinstatement petition. While that petition was pending, the claimant underwent a surgical procedure for his back and, later, a right shoulder surgery. An employer’s medical expert testified that the claimant could return to work light duty.

The Workers’ Compensation Judge partially granted the reinstatement petition, reinstating benefits solely for periods of temporary disability the claimant would have experienced following the surgeries. However, the judge also found credible the opinion of the employer’s medical expert that, as of the date of his IME, the claimant was capable of performing light-duty work. Therefore, the judge awarded partial disability benefits for other periods, finding that the claimant could have performed light-duty work but for his earlier discharge from his employment, which was unrelated to the work injury.

On appeal to the Appeal Board, the claimant argued that the judge erred in concluding that he was terminated for reasons unrelated to his work injuries due to the employer’s failure to follow a progressive disciplinary policy prior to the termination. The Board dismissed the claimant’s appeal and affirmed the judge’s decision.

The Commonwealth Court affirmed the decisions below, holding that there was substantial competent evidence in the record to support the judge’s finding of bad faith on the part of the claimant’s underlying the termination of his employment. The court further held that the employer’s purported failure to follow a progressive discipline policy did not compel an award of temporary total disability benefits in that it did not effect the judge’s finding of bad faith on the claimant’s part.

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