Tom Doughtery v. WCAB (QVC, Inc.), __ A.3d __ (Pa. Cmwlth., No. 386 C.D. 2014, filed October 14, 2014.

 

The claimant returned to his pre-injury position and notified his employer of work-related physical restrictions. The position was later eliminated for economic reasons, and the claimant was transferred to another position, less physically demanding than his pre-injury job. He was later discharged for unsatisfactory work performance. The claimant then filed a reinstatement petition. 

 

In the context of a layoff for unsatisfactory work performance, the claimant is entitled to a presumption that his loss of earning power is related to the work injury when the claimant is terminated from a modified  or light duty position. The burden then shifts to the employer to rebut the presumption. 

 

A claimant is only entitled to the presumption of causation if he returns to work under suspension with restrictions. The presumption of causation does not apply: (1) if the claimant can perform the pre-injury job, despite restrictions; or (2) if the post-injury restrictions do not require any modifications to the claimant’s pre-injury job.

 

Unsatisfactory work performance alone will not bar a reinstatement of benefits absent a showing by the employer that “lack of good faith” or “bad faith” prompted the discharge. Where a claimant shows that “he would if he could,” the bad faith threshold is not met.




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