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Alfred Napierski v. Workers' Compensation Appeal Board (Scobell Company

January 10, 2013

ALFRED NAPIERSKI, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (SCOBELL COMPANY, INC. AND CINCINNATI INSURANCE COMPANY), RESPONDENTS



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: August 3, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE LEAVITT

Alfred Napierski (Claimant), who is receiving partial disability benefits, has petitioned for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his request for a reinstatement to total disability benefits. Claimant sought a reinstatement after his employer Scobell Company, Inc. (Employer) declined to give him a job. In denying Claimant a reinstatement, the Board affirmed the holding of the Workers' Compensation Judge (WCJ) that because Claimant had previously refused a light-duty job in bad faith, he was required to show that his work injury had worsened and he was unable to do the light-duty job before he could be reinstated to total disability. Claimant was not relieved of this burden simply because the job he had refused in bad faith was a position funded by Employer.*fn1 Discerning no error, we affirm.

This case involves significant prior litigation between the parties that dates back to July 28, 1995. On that day, Claimant, employed as a plumber, injured his left leg when a ditch in which he was working collapsed. Employer accepted liability for the injury and began paying Claimant total disability benefits of $509 per week.

Thereafter, Employer referred Claimant to Expediter Corporation, a company that helps employees return to work. Expediter found Claimant a full-time sedentary job with Information Direct, Inc. (IDI), working 40 hours per week in telephone customer service. The job was funded by Employer and paid less than Claimant's pre-injury wage. Claimant's physician approved the job.

Claimant began working in October 2004. IDI moved Claimant to a second office in March 2005 and to a third office in August 2005. These office moves were necessitated by problems in the offices, including heating malfunctions and a mouse infestation. When Claimant noticed mouse feces in paperwork that had been imported from the second office location to the third, Claimant quit on the spot, concluding that Employer was "playing games" with him. Reproduced Record at 76a (R.R. ___); WCJ Decision, August 17, 2007, at 8, Finding of Fact 9.

Employer filed a modification petition, which the parties litigated before a WCJ.*fn2 The WCJ found that the IDI telephone job fell within Claimant's capabilities but became unavailable to Claimant in January 2005, when the office heating malfunctioned. However, the job later became available to Claimant by August 19, 2005, at the third office location. The WCJ found that Claimant refused in bad faith to work there. Accordingly, the WCJ modified Claimant's benefits to a partial disability rate of $374.86 per week, based on what he would have earned at IDI, "commencing August 19, 2005 and continuing into the future until such time as Claimant's disability changes in nature or degree[.]" R.R. 82a; WCJ decision, August 17, 2007, at 14, Order.

Both Claimant and Employer appealed. The Board granted Employer's appeal by extending the period of partial disability benefits for the entire period of time Claimant worked at the job from October 15, 2004, until January 23, 2005. It affirmed in all other respects. Claimant petitioned for review, and this Court affirmed the Board. Napierski v. Workers' Compensation Appeal Board (Scobell Company), (Pa. Cmwlth., No. 1515 C.D. 2008, filed January 28, 2009). On August 18, 2009, the Pennsylvania Supreme Court denied Claimant's petition for allowance of appeal. Napierski v. Workers' Compensation Appeal Board (Scobell Company), 603 Pa. 706, 983 A.2d 1250 (2009).

On June 30, 2010, Claimant asked Employer to fund the job for him again so that he could return to work. Receiving no response from Employer, Claimant filed the instant reinstatement petition, seeking to have his partial disability benefits reinstated to total because the funded employment was no longer available to him. Employer filed an answer denying that Claimant was entitled to a reinstatement for that reason.

The petition was assigned to a WCJ, who conducted a hearing. Claimant and Employer both appeared but neither party presented testimony, agreeing that the issue was a purely legal one. The parties stipulated that when the prior litigation did not produce a favorable result for Claimant, he asked Employer to make the funded job available to him again. Employer declined because it believed it was not legally required to do so.

The WCJ denied Claimant's petition for reinstatement to total disability benefits.*fn3 The WCJ concluded that because his benefits had been modified for his bad faith refusal to work, Claimant was required to prove that his medical condition had worsened to the point that he could no longer do the telephone job with IDI. Claimant did not do so. The WCJ found it irrelevant that the job was a funded position because job availability was no longer an issue. The WCJ concluded that it would be "unfair to allow a Claimant to avoid the legal determination of bad faith in refusing available, modified employment . by years later asking for the job" and again forcing Employer to show job availability. R.R. 102a; WCJ Decision, January 6, 2011, at 4, Finding of Fact 9. Claimant appealed, and the Board affirmed. Claimant then petitioned for this Court's review.*fn4

On appeal, Claimant argues that the WCJ and the Board erred. Claimant asserts that funded employment presents a special situation that should not be governed by precedent established in the context of a claimant's bad faith refusal to take a light-duty job with the employer. In other words, Claimant believes that leaving a funded job in bad faith does not relieve the employer of having to provide a job to a claimant who comes to regret his earlier refusal of a job. Employer responds that the nature of the employment refused, whether funded or not, is immaterial.

A claimant is entitled to a reinstatement of benefits if he can show that the reason for the suspension or modification no longer exists. Dillon v. Workmen's Compensation Appeal Board (Greenwich Collieries), 536 Pa. 490, 502, 640 A.2d 386, 392 (1994) (quoting Pieper v. Ametek-Thermox Instruments, 526 Pa. 25, 33, 584 A.2d 301, 304 (1990)). Typically, a partially disabled claimant can reinstate to total disability by showing that his earning power is once again adversely affected by his work injury. Dillon, 536 Pa. at 503-04, 640 A.2d at 392-93. The claimant is entitled to a reinstatement to total disability where his light-duty job has been eliminated and the employer cannot show ...


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