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November 2021 Pennsylvania Case of the MonthDocumentation Crucial When Injured Employee is Discharged

Bear Staffing v. WCAB(Logan), No. 949 C.D. 2020, ___ A.3d ___ (Pa.Cmwlth. 2021) filed October 15, 2021

Facts:

Claimant was employed by a temporary agency and assigned to Barry Callebaut Chocolates. On April 18, 2018, Claimant was in the regular performance of his job duties when he slipped and fell on the floor, striking his head and back on the ground. Claimant lost consciousness in the fall and was taken to the hospital by ambulance. 

  • On April 26, 2018, Claimant filed a Claim Petition seeking the payment of wage loss and medical expenses. 
  • The Employer then accepted the claim by way of Notice of Temporary Compensation Payable for medical only as injuries to his head, neck, lower back, and aggravation of pre-existing conditions on May 10, 2018. 
  • The NTCP converted by operation of law on July 18, 2018. On July 24, 2018, Employer filed a Petition to Terminate alleging that Claimant had fully recovered as of June 15, 2018. 
  • Both parties presented medical evidence on the Termination Petition but ultimately the award of wage loss benefits and subsequent appellate litigation was dependent on the evidence as to the Claimant’s termination from employment.

The facts show that Claimant was sent to WorkNet the day after his injury on April 19, 2018 for a drug test in accordance with the employer’s policy. The testing involved both a breathalyzer and urine drug screen. Claimant completed the breathalyzer, but the first urine sample exceeded the temperature threshold for an acceptable sample. Claimant was thus asked to provide a second sample under observation. Claimant advised that he was unable to provide a second sample immediately. He then was given water and a male physician was dispatched to provide the necessary observation. After time passed, Claimant advised that he was prepared to provide the second sample. He and the doctor went into the restroom. Shortly after, Claimant emerged from the bathroom angry and declared, using profanity, that observation was an invasion of his privacy. He refused to provide a second sample. Because the first sample was outside the required temperature range and a second sample was refused, the drug testing was not completed. 

Testimony was taken both from the physician and the employee at WorkNet who was responsible for the drug testing. Ultimately, the WCJ found the Claimant credible as to the reasons why he couldn’t provide the second sample. Testimony as to the request for the second sample from the physician and WorkNet employee was also found credible regarding the circumstances of asking the Claimant to provide the second sample. Testimony was also taken from the Employer regarding the drug test policy and Claimant’s termination from employment due to violation of the policy. Employer’s testimony with regard to the termination was credited along with his testimony that had Claimant not been terminated for violating the policy, modified duty work would have been provided within Claimant’s work restrictions.

Ultimately, the WCJ granted the Claimant’s Claim Petition and denied the Petition to Terminate. In so holding, the WCJ found the Claimant to be credible to the extent that he was unable to provide the second urine sample and did not, in fact, refuse to provide the sample. Ongoing wage loss and medical expenses were awarded. The WCJ further found Employer’s testimony to be credible as to the violation of the drug test policy but stressed that it was Claimant’s inability to provide the second sample that led to the violation rather than a refusal to provide the sample.

Employer appealed to the WCAB who affirmed in all respects other than to correct the date of injury from April 18, 2017 to April 18, 2018. The Board reviewed the standard set forth by Vista International Hotel v. WCAB(Daniels), 742 A.2d 649, 657 (Pa. 1999), specifying that post-injury involuntary discharge is to be considered along with whether the discharge was fault-based. The Board held that a showing of bad faith by the Claimant in his discharge would ultimately lead to finding that the Employer was not required to make a showing of job availability thereafter to limit future liability for wage loss benefits. Of note, Board Chairman Frioni, Jr., authored a dissent finding that Claimant chose not to provide the second sample after the initial sample was abnormal and therefore, his discharge was due to violation of policy. 

Employer then appealed to the Commonwealth Court arguing that the WCJ erred in awarding Claimant ongoing benefits where he was terminated for failing to comply with Employer’s drug-testing policy and that the termination, rather than the Claimant’s injury, was the cause of his subsequent wage loss. Before the Commonwealth Court, Employer acknowledged the WCJ’s credibility determinations but also argued that the WCJ credited not only the Claimant but the Employer witnesses as to the Claimant’s behavior when asked to provide the second sample. The Employer thus argued that the Claimant’s refusal to cooperate with testing procedure was evidence of a lack of good faith. The Commonwealth Court disagreed and ultimately affirmed the WCJ and WCAB. 

Citing to their own holdings in Vista International Hotel, supra, and Reyes v. WCAB(AMTEC), 967 A.2d 1017, 1077 (Pa.Cmwlth. 2009) (en banc), the Court noted that where an Employer contends that a Claimant’s loss of earning power was due to a post-injury discharge, the burden is on the employer to show that suitable work was or would have been made available but for the discharge which resulted from the Claimant’s own bad faith conduct. In a footnote, the Court noted that the Vista International Hotel holding required a finding that the Claimant’s bad faith conduct led to a forfeit of employment. The Court further noted where it is the bad faith conduct of the employee that leads to termination from employment, the Employer is not required to make a showing of job availability as the lack of earnings is a direct consequence of the injured worker’s own conduct. However, the burden of showing that bad faith conduct rests with the Employer.

The Commonwealth Court ultimately held that the WCJ, as the finder of fact, determines whether a discharge was made for the Claimant’s bad faith conduct. Here, the Court held that WCJ’s credibility determinations supported a finding that the Claimant could not provide the second sample to complete the drug test rather than a refusal to provide the second sample. While the discharge for failure to comply with the drug test was credited, the WCJ found that the Claimant did not act with bad faith as he could not provide the second sample. Thus, the WCJ’s award of ongoing wage loss was affirmed. 

Practice Tip:

When an injured worker is discharged from their employment, it is incumbent on the Employer to document the reasons for their discharge. If the injured worker refuses to comply with policy, clear and concise written documentation of warnings for such a refusal are especially useful in meeting the Employer’s burden that the discharge was due to the injured worker’s own bad faith conduct. If there are written policies which are violated by the injured worker, written documentation of violation of the written policies along with the policies themselves are the best evidence that the injured worker acted in bad faith before the Workers’ Compensation Judge. If wage loss benefits are denied based on the injured worker’s bad faith conduct, securing written statements, the disciplinary history, and written policies at the time of the denial will provide the best basis for a defense to any future claim for wage loss benefits.

Once the Claimant’s bad faith conduct is established as the reason for the discharge, the Employer is relieved of the requirement to show job availability once an injured worker is released to return to work.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Author

Stephanie C. D'Abarno is an Associate in the Firm's Workers' Compensation Department and represents employers, insurance companies, and third-party administrators in workers' compensation proceedings throughout the Commonwealth of Pennsylvania. She has represented an array of clients including hospital systems, retail corporations, moving and self-storage companies, school districts, national carriers, and staffing agencies. She has successfully defended clients before Pennsylvania Workers’ Compensation Judges, the Workers’ Compensation Appeal Board, and Commonwealth Court. 

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