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Presby Homes and Services v. Workers' Compensation Appeal Board

November 5, 2009


The opinion of the court was delivered by: Judge Leavitt

Submitted: August 28, 2009



Presby Homes and Services (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) granting a claim petition filed by its employee, Rachel Quiah (Claimant). In doing so, the Board affirmed the decision of the Workers' Compensation Judge (WCJ), who held that Claimant was entitled to full disability benefits because the modified-duty position Employer offered to Claimant was not actually available. In this case, we consider whether an employer's job offer is a bona fide offer where the employer reserves the right to revise the duties of a job and offers the job on an "at will" basis, as opposed to a contract basis.

Claimant worked for Employer as a certified nursing assistant. On June 4, 2007, Claimant was bathing a non-ambulatory resident, who resisted being positioned on her side and fell backward onto Claimant's left arm. Employer issued a notice of temporary compensation payable on June 13, 2007, describing Claimant's injury as a lumbar sprain/strain. Thereafter, Claimant filed a claim petition on June 28, 2007, alleging that she suffered a lower back injury and a left wrist injury and was disabled from returning to work. On August 30, 2007, Employer issued a notice stopping temporary compensation and a medical-only notice of compensation payable (NCP). The NCP noted that Claimant's disability benefits were suspended because she failed to return to the modified-duty position Employer had offered to her to begin on August 29, 2007. Reproduced Record at 69a (R.R. __). The claim petition was assigned to a WCJ.

Claimant testified on her own behalf, both by deposition and before the WCJ. Claimant acknowledged that Employer offered her a modified-duty position but stated that she did not accept it because of ongoing pain in her back and right leg.

Claimant presented the deposition testimony of her medical expert, Dr. Stephen F. Ficchi. Dr. Ficchi testified that Claimant was first seen in his office on July 2, 2007. He did not personally examine Claimant. Based upon his review of his colleagues' records, Dr. Ficchi diagnosed Claimant with a herniated lumbar disc; a right L5 radiculopathy; a left wrist sprain/strain and a left thumb sprain/strain. He opined that those conditions were directly related to the work incident on June 4, 2007. Dr. Ficchi further opined that Claimant was not physically capable of returning to her former position or to the modified-duty position.

Employer presented the deposition testimony of its independent medical examiner, Dr. Scott A. Rushton, a board-certified orthopedic surgeon who evaluated Claimant on August 6, 2007. Dr. Rushton diagnosed Claimant with a symptomatic L4-L5 herniated disc and resultant L5 radiculopathy on the right side.

Dr. Rushton's report restricted Claimant to lifting no more than 10 pounds and to only "occasional" bending, squatting, climbing, reaching above her shoulder, kneeling, crawling and using foot controls. R.R. 166a. Dr. Rushton concluded that Claimant was capable of returning to sedentary work on a full-time basis and that the modified-duty position offered by Employer fit within his restrictions.

Employer also offered the deposition testimony of its Staff Development Coordinator, Susan Harmon. Harmon testified that when she received Dr. Rushton's report on Claimant's physical capabilities, she prepared a modified-duty job description for Claimant's position to accommodate her restrictions. As a "Temporary Modified Duty Certified Nursing Assistant," Claimant would have been responsible for, inter alia, sitting in the dining room with residents; attending to residents' needs with respect to feeding, grooming and communicating; protecting the personal belongings of the residents; assisting with the orientation of new residents and their families; and assisting her supervisor with administrative tasks and special projects within her physical limitations. R.R. 168a-169a.

The four-page job description ended with a "Receipt and Acknowledgment" section that contained the following relevant provisions:

I acknowledge and understand that . receipt of the job description does not imply nor create a promise of employment, nor an employment contract of any kind, and that my employment is at-will.

* * * [J]ob duties, tasks, work hours and work requirements may be changed at any time.

R.R. 170a. Harmon sent a copy of the job description to Claimant on August 22, 2007, along with a notice of availability to return to work and a letter confirming that Claimant was expected to return to full-time work on August 29, 2007, at her pre-injury ...

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