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McMahan v. Workers' Compensation Appeal Board10/11/2005
Lois McMahan (Claimant) petitions this Court to review the order of the Workers' Compensation Appeal Board (Board) affirming the decision of the Workers' Compensation Judge (WCJ) modifying her benefits based on her bad faith rejection of employment offered by Warren General Hospital (Employer).
Claimant was a full-time nurse's aide for Employer and a union member. As a full-time employee, Claimant received free health insurance, but paid $56.48 bi-weekly in health insurance premiums for dependents. On February 5, 2001, Claimant injured her ankle in the course of her employment, and Employer subsequently issued a Notice of Compensation Payable.
Because her work-related injury prevented her from returning to her previous employment as a full-time nurse's aide, Claimant returned to work in various light-duty capacities, ultimately working as a full-time switchboard operator. After she was off work for a third surgical procedure necessitated by her work-related injury, Claimant's treating physician provided a return to work release to Employer indicating that Claimant was capable of performing sedentary employment with limited standing and walking. Employer sent Claimant a letter advising her that there was work available for her within her restrictions as a switchboard operator, which was the same job she held before she went out for surgery, but it was only available on a part time basis. Because the position was part-time, Claimant would be required to pay 50% of her health insurance premiums, which amounted to $135.66 on a bi-weekly basis. Because that amount was about two and one-half times the amount that she paid when she was a full-time employee, Claimant then sent Employer a letter indicating she would not return to work unless she was to be treated as a full-time employee. Pursuant to the collective bargaining agreement, Claimant's job was held open for six months, and she was later terminated by Employer.
Employer filed a Petition for Suspension with the WCJ requesting the suspension of Claimant's compensation benefits, alleging that an available job was offered to her and she refused to accept it in bad faith. The parties stipulated that Claimant could have physically performed the duties of the part-time switchboard operator and that the sole reason she was declining the job was due to the fact that she would be required to pay a higher premium for medical insurance. Concluding that there was work available to Claimant which she was physically capable of performing and she refused to accept the position in bad faith, the WCJ modified her benefits reflecting the earnings she would have received if she had accepted the switchboard operator's job. The Board affirmed and this appeal followed.
Claimant contends that when Employer offered her a light-duty part-time position instead of a full-time position, it was "unavailable" to her because it would increase her health insurance premiums as well as affect her seniority and vacation time. In St. Joe Container Co. v. Workmen's Compensation Appeal Board (Staroschuck), 534 Pa. 347, 633 A.2d 128 (1993), our Supreme Court recognized that job availability was not always determined by physical and vocational ability because it may be "unacceptable for some reason unrelated to the employee's physical abilities or his conduct in connection with a valid job referral, thus rendering it unavailable to the Claimant." Id. at 352, 633 A.2d at 130. In that case, claimant, who was a member of a union on total worker's compensation, was offered a non-union position which he refused because he would no longer be a member of the union and it would result in the loss of certain ongoing union benefits. Because by accepting the p
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