a. Actual job offer by same employer. The employer can send you a notice in the mail which states that you are being offered a job within the company. The position may be your old job with modifications or it can be an entirely new one. (Note that the Workers’ Compensation Act does not require the employer to return you to your old job; the job offer is valid as long as the new job offer does not violate a labor agreement and you are capable of performing it).

The notice should state the physical requirements of the job and the name of the provider who released you to perform it. If the release is from an IME physician and not your doctor, you should obtain a job description from the employer and discuss it with your doctor. If your doctor does not release you for it, you should discuss with an attorney the possibility of fighting the inevitable suspension/modification petition. If your doctor does feel that you could try the job and you disagree with this opinion, you can seek a second opinion from another doctor. (However, this is subject to the 90 day requirement to see panel physicians). Note also that unless the doctor performing the second opinion makes a new finding not made by the other doctors, there is a strong chance that the employer will be able to suspend your benefits for not trying the job.

b. Job referrals to new employers. This is perhaps the greatest area of dispute between injured workers and their employers. For injuries occurring before June 24, 1996, there is no requirement in the law that employers try to locate a job with the employer for an injured worker. For those employees injured after that date, the law does require that the employer first attempt to find a specific job vacancy within the company. If the employer can prove that one does not exist, it may then refer the employee’s case to a vocational rehabilitation company. These companies are paid by the employer and/or insurance carrier to attempt to find a different job for you.

If such a company is retained, you will receive a notice in the mail. You will often be asked to meet with a case worker for a “vocational interview,” where you discuss your education and work experience. You may also be asked about any hobbies or volunteer work which might give you skills to work in another capacity. (If you have an attorney, she will usually attend the interview with you to prevent the asking of improper questions). You may also be given a resume form to complete for review by potential employers.

Most employers justify the use of these vocational companies by stating that they are legitimately trying to help the injured worker return to the work force. However, the efforts made by the case workers to find jobs usually involve looking through the classified section of the newspaper. The caseworker can try to find any job opening for which you are arguably qualified and can physically perform. There is no obligation under the law for job referrals to be in certain fields or at certain pay and benefit levels. Once a position has been located, you will receive a certified letter stating that a job interview has been arranged for you. When you attend the interview, the vocational caseworker will often wait outside the door. As soon as the interview is over, the caseworker will meet with the potential employer to determine whether you made a “good faith” effort to obtain the job.

If you are not hired because you did not have the qualifications or for another legitimate reason, you should not worry that a petition will be filed. (Other legitimate reasons may include lengthy travel time to the job or physical tasks that are too strenuous). However, if you are not hired because you told the interviewer you did not want to work there, the caseworker will use this information to state that you “sabotaged” a likely job offer. If this happens even once, you will probably receive a petition attempting to modify your benefits by the amount the highest-paying job would have paid.

You may be aware that some employers will retain private firms for “funded employment” of their injured workers. If you have been selected for funded employment, you might, for example, receive a notice which offers you a job performing telecommunications work in your home. In this case, your salary is actually paid by your former employer and not the telecommunications firm, and the job is usually only funded for a short time. After a few months, the telecommunications company can decide whether to hire you as a worker. If you are hired (as are most people), you may be paid on a commission basis and make far less than you did when you started at the firm.

These efforts to “buy jobs” for workers to avoid paying workers’ compensation benefits have received much attention lately within the Pennsylvania legislature. There is some possibility that the courts will find that funded employment shows illegal bad faith on the employer’s part, but so far this has not occurred. There are certain other grounds on which funded employment can be defended, so if you receive such a job offer you should bring it to an attorney to discuss it.

c. Labor market surveys. This possibility exists only for workers who have had injuries after June 24, 1996. This is a fairly new area of the law, and it is still not widely used. Under a new provision of the Workers’ Compensation Act, the employer can also retain a vocational expert to review the general jobs available in your area. The expert would find those jobs for which you are physically and vocationally suited and then determine how many theoretical openings there are within your home area. For example, if you could physically perform the duties of a security guard job in an office building, the expert would evaluate how many advertisements there have been in the recent newspapers for this type of job. Even if you were never aware of the job, the expert can write a report (called a “labor market survey”), stating that if you had applied for one of the openings you would have been hired. A suspension/modification petition could then be filed on the basis of the result of the report authored by the “expert.”

Because there has not been much litigation in the area of labor market surveys, there are no strict rules for successfully defending them. However, there are methods (such as the employee’s retaining her own vocational expert) which are currently being used to defeat these petitions. As this is another area which would be almost impossible for an employee to litigate without an attorney, you should seek legal advice if you receive one of these surveys in the mail.

a. Supersedeas request. When you receive the petition, it will usually state that “a supersedeas is requested.” This means that the employer is asking the judge to make a decision after the first hearing as to whether you will continue to receive full wage loss benefits while the case is pending. It is important to know that this is a preliminary decision based on the evidence presented solely at the first hearing; it is not a final decision in the case. However, it is important to make a strong showing to the judge through your testimony and your medical records, so the judge will deny the supersedeas request. Your lawyer will be responsible for obtaining and submitting the documents, as well as taking your testimony. If the judge denies the supersedeas request, your attorney will usually begin receiving a percentage of your checks as a fee (pursuant to your fee agreement), after the first hearing. If the request is granted, however, your checks will stop or be reduced while the case is litigated. Unfortunately, this is often a sign that the judge is predisposed toward granting the employer’s petition at the end of the litigation.

b. The Judge’s decision. After the parties have taken their depositions and any witnesses have testified, there will be a second (or often third), hearing. The employee and the employer’s insurance company will submit all of their evidence to the judge, and the judge will set a time period for submitting briefs. The attorneys for each party will write briefs summarizing the evidence, and the judge will review them before making a decision.

i. Favorable decision – If the decision is favorable, it will state that the employer’s petition is denied. Your benefits will continue to be paid along with your reasonable and necessary medical expenses. The judge may also award an ongoing counsel fee to be paid as a percentage of your benefits, or (more rarely), to be paid separately by the employer for unreasonably filing the petition. The costs of litigation should also be reimbursed by the employer. (For general information on the employer’s right of appeal, please see Section IV B 5 relating to favorable decisions). ii. Unfavorable decision – If the decision is unfavorable, it will state that the employer’s petition has been granted. The judge will include the amount by which your benefits will be modified or in the case of a suspension petition, they may be suspended completely. As noted above, the employer is still responsible for payment of your reasonable and necessary medical expenses. As the losing party, you will have to pay any litigation costs advanced by your attorney, and your attorney will not receive a fee. (For general information on filing an appeal from the decision, see Section IV B 5 relating to unfavorable decisions.)