What happens when the employer alleged the injured worker was terminated for cause?
A female hospital worker injured her lower back, provided timely notice to her supervisor and began treating with the employer’s occupational health provider. Restrictions were placed on her ability to return to work. The employer then terminated the injured worker for alleged conduct that occurred prior to the work accident. The injured worker turned to Philadelphia workers’ compensation lawyer Jonathan B Koutcher of Pearson Koutcher Law, who filed a claim petition and a penalty petition.
In Pennsylvania the law is clear. The Pennsylvania Supreme Court, in Vista International Hotel v. WCAB, a 1999 court decision, rejected the idea that an employer may suspend wage loss benefits through discharge/termination without a fault-based assessment. In particular, the court held that an employee who, by act of bad faith, forfeits their employment, would not be eligible for total disability benefits as suitable employment was in fact available, but for the employee’s own wrongful conduct. The burden of proof lies upon the employer to establish that work was available but for circumstances which merited allocation of the consequences of the discharge the claimant. The workers compensation judge determines if the injured worker was discharged for conduct evidencing a lack of good faith. Therefore, the specific facts of each case are of critical importance.
In the case that I won as referenced above, I believe there were two key pieces of evidence. First, all of the conduct the employer alleged the injured worker performed occurred prior to the work accident. When this happens, the injured worker’s loss of earnings will be deemed to have resulted from a disability due to an injury and the employer then has the burden to show availability of work performable without a loss of earnings. Secondly, the employer did not dispute that the work accident occurred and did not challenge the injured worker’s testimony that she was working under restrictions when she was fired.
Whenever the employer alleges a fault based termination, review of disciplinary records, the injured worker’s personnel file and an employee handbook or collective bargaining agreement is important. Often the employee had an annual review that contains useful information. In addition, the employer many times will violate its own policy on enforcing discipline.
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