Case Law Update | Paolucci v. UCBR (Pa. Cmwlth June 19, 2015) | PA Work Injury

June 22, 2015

Facts: Claimant worked for Employer (Wal-Mart) in various positions.  On 7/17/10, shelving fell on her and she sustained a concussion.  NCP for concussion and $422/week paid.  As of 11/10, her doctors had not released her, but an IME doctor in 12/10 found her fully recovered.  In 1/11, Employer store manager called Claimant several times, but Claimant’s counsel responded on her behalf and advised that they were disputing IME.  Employer began term/mod/susp.

 

In a July 2011 WC deposition, Claimant stated she had not been released and did not think she could do former job, but she might be able to do a less demanding position she had done before, food inspector.  Employer did not respond to that statement & terminated her on 8/4/11.  On 10/9/11, she sought UC asserting ability to work as of that date; Employer disputed, asserting that it made efforts to contact/offer, but due to Claimant’s apparent non-responsiveness, they terminated.  Referee initially OK’d UC, but UCBR reversed, finding Claimant’s non-responsiveness to Employer contact to be willful misconduct and denied UC.

 

CC: Reverse.  Record does not show that Employer made valid attempts to contact/offer work after her statement in WC deposition that she could do the lesser position.  Nor was Claimant ever medically released by a doctor.  Section 311.1 of WC entitles Employer to request claimant report on physical condition, but it is Employer’s duty to do so and requires proper documentation.  Employer here did not do this.  Employer awareness of Claimant’s WC deposition statement that she could do some kind of job triggered duty to respond in proper manner.  It did not do so, and UCBR cannot penalize her for asserting her WC rights.

 

DO (Covey w/Cohn Jub): Harsh stuff.  Critique MO as manipulating question presented by Claimant, facts, and precedent to reach desired result.  Critique MO for treating a UC case as a WC case.  Claimant statement suggesting ability to work in WC litigation cannot be imputed to Employer awareness in UC context, where is it Claimant duty to communicate ability and availability to work to Employer.

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