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Does Workers’ Compensation Require Job Retraining?
Daniel E. McCabe
Wolf, Baldwin, and Associates, P.C.
If I’m hurt at work, does my employer have to find me work or retrain me?
The answer to this question is a bit of a mystery to many injured workers, and often to their employers as well. The general answer is no, there is no obligation on the employer’s part to retrain, rehire, or find alternative work for an employee after an injury at the work place. However, as is frequently the case in law, the general answer doesn’t tell the whole story.
One of the most important facts that eludes both the employer and the injured worker after an injury at work occurs is that once a workers’ compensation insurance carrier accepts a work injury as “work related” and begins paying weekly wage loss and/or medical benefits, it must continue to do so until the claimant returns to some type of work, or until a Workers’ Compensation Judge issues an order either stopping or modifying those benefits. Injured workers, or “claimants,” are often told by their employer that if they do not go doctor’s appointments or try a light duty job, workers’ compensation will simply “close” their case. However, this is certainly not the case, and benefits will not be stopped, at least not legally, without a Judge’s order.
So what are the obligations of both the employer and the claimant to find or provide work or retraining after an injury has been accepted? First, there is no obligation for the employer to retrain the injured worker. If the claimant wishes to retrain himself by returning to school or some other type of training, the employer is not obligated to pay for the retraining or schooling. For claimants who suffer a career-ending injury while working in a heavy lifting type of job, retraining themselves for a lighter type of work is often their only option for finding further employment. Claimants will generally continue to receive workers compensation benefits until they are able to return to some type of employment, but job retraining is not on the menu of potential benefits under workers’ compensation in Pennsylvania.
But what are the obligations if the employer offers light duty work to the injured employer? This is often a tough question to answer, but the again, the general answer is that the claimant must at least make a good faith effort to try the light duty job. In Kachinkski v. WCAB (Vepco Construction Co.) 532 A.2d 374 (Pa. 1987), the Pennsylvania Supreme Court, in a landmark decision, laid out the test for how an employer can suspend or modify a claimant’s benefits based on a job offered by the employer. First, the employer must show a change in the injured worker’s condition (i.e. the ability to do light duty work). Second, the employer must notify the claimant of an open and available job which the claimant can perform given the claimant’s changed condition. Next, the burden shifts to the claimant to show that he made a good faith attempt to perform the work. Finally, if the claimant is unable to perform the work, benefits will continue. There are some technical requirements that must be complied with as well – the employer must issue certain forms, there must be a proper job offer that allows the claimant to know what the offered job entails, etc.. A more detailed analysis of these legal questions has been the subject of years’ worth of litigation, and is beyond the scope of this article.
Often, the claimant does not feel that he can perform the job offered and therefore does not even make an attempt to try it. Lengthy litigation often follows thereafter, where the employer tries to show that there is open and available work for the claimant and that workers’ compensation benefits should be modified by the amount of money the claimant could have been making while performing that job.
The mistake made most often by claimants after a job is offered is that no attempt is made to even try the job. Many claimants complain the job offered is not the same hours, or the same pay, or quite frankly, it is “beneath” them. Nevertheless, absent a union or employment contract to the contrary, the employer is not obligated to offer the same type of job as the claimant had performed before, or the same hours. Nor is it obligated to offer a job at the same pay rate or even the same shift. If the employer offers a job at a lower rate of pay or for less hours than before the work injury, it will be obligated to pay the claimant temporary partial disability benefits, or “TPD”. This is often the case when an employer can accommodate light duty restrictions by offering a 40 hour job, but can not, or will not, offer overtime as part of the job even though the claimant performed overtime prior to the injury.
If the claimant worked overtime before the work injury, and the light duty job only offers 40 hours per week at the same rate of pay, the employer will be obligated to pay two-thirds of the difference in pay. Further, if the light duty job offers less money because of the loss of a shift differential, or any other reason, a partial disability benefit will be owed. The partial benefits due in these situations are often overlooked or unknown to injured workers. However, a partial disability benefit would not be due if the claimant does not make a good faith effort to attempt the job.
What amounts to a “good faith” attempt at performing the job can often be a tough question to answer, but generally, if the claimant at least tries the job and can not perform the job, then benefits will continue. But each case is often very fact specific. If claimant only lasts one day, is that a good faith attempt? If the claimant only lasts one hour, and must stop due to increased pain, is that good faith? Again, the courts will look at the specific facts of each case. The best thing a claimant can do in these situations is at least make the attempt, which often does not happen. Employers will often offer jobs that amount to the employee doing nearly nothing. For example, a large employer may offer a job where the claimant simply sits and watches a conveyor belt. For the most part, a claimant must at least attempt doing even this job. If the claimant can perform the job, then the employer may modify or stop paying wage loss benefits altogether. However, if an employee can show that the employer is merely creating a meaningless or useless job in order to not pay workers compensation benefits, then the employee may be able to show that the employer is not offering a job in good faith and benefits may continue. Again, the claimant would be wise to at least attempt the job, and a judge would look at the specific circumstances surrounding the case.
The employer is not obligated to offer any type of retraining if the employee can no longer perform the type of work he or she used to perform. Claimants often believe that the employer or insurance carrier is attempting to retrain the injured worker when there is a request to be interviewed by a “vocational counselor.” However, the purpose of this interview is usually only to attempt to show that the claimant is capable of some type of work, and only happens if the employer does not have a light duty job to offer. The employer will then attempt to prove that it should be able to modify a claimant’s benefits by the money he or she could be making by showing that there are available and vocationally appropriate jobs in the workforce. This process is very complicated and technical, and certainly involves lengthy and costly litigation. But the short answer to the question of whether the employer has the obligation to retrain an injured worker is no. Questions about these procedures to modify or suspend workers’ compensation benefits should be directed to experienced Pennsylvania workers’ compensation attorneys.
Daniel E. McCabe, Esq., is an associate in the law firm of Wolf, Baldwin & Associates, P.C.. His practice, located in the firm’s West Chester office, concentrates on the representation of injured workers and medical providers. He can be reached by phone at 610-436-8300, or by e-mail at [email protected].