Abiding by PA Workers’ Comp Act Not “Willful Misconduct” For Unemployment Compensation

We rarely discuss Pennsylvania appellate cases other than those directly involving workers’ compensation. However, a recent unemployment compensation case touches on the workers’ compensation process, and may be of interest to our readers.

The case is Paolucci v. Unemployment Compensation Board of Review, recently decided by the Commonwealth Court of Pennsylvania. To understand the case, and its impact on the workers’ compensation system, some background is necessary. In July, 2010, the injured worker suffered a concussion while working for Wal-Mart. The injury was accepted by Notice of Compensation Payable, and workers’ compensation benefits began. An Independent Medical Examination (IME; to the extent one considers these “independent”) found the injured worker able to go back to work; the treating physicians disagreed. The attorney for the injured worker told Wal-Mart that all communication with the injured worker was to be through the attorney’s office. Some type of job offer was apparently made, but the injured worker did not go back to work. The workers’ comp case then settled.

After the settlement, the injured worker filed for unemployment compensation benefits (interestingly, it is common practice for the employer/insurance carrier to require a voluntary resignation as part of a workers’ compensation resolution; that was not done in this case). An unemployment compensation referee awarded unemployment compensation benefits.

On appeal, the Unemployment Compensation Board of Review (UCBR) reversed the referee’s award and denied benefits. The UCBR concluded that the injured worker had committed willful misconduct. Specifically, the UCBR said:

“The claimant never made the employer aware that she could return to work. Further, the claimant did not respond to the employer’s offer of work. Finally, the claimant’s attorney told the employer to no longer contact the claimant.”

The Commonwealth Court of Pennsylvania then reversed the UCBR, and reinstated the referee’s award of benefits. Since a finding of “willful misconduct” requires that the employer show that the “employee violated a policy, work rule or reasonable expectation of employer,” and such evidence was not present, unemployment compensation benefits must be awarded. First, the Court observed that a release by an IME doctor is “irrelevant,” and that the injured worker had not actually been released to go back to work by any physician. Moreover, the injured worker is not required under the Pennsylvania Workers’ Compensation Act (Act) to report a recovery from a work injury; instead, the Act permits an employer to “request a claimant to report on the state of her physical condition.” In short, the Court summarized, “The Act makes it the employer’s duty to seek this information, not the claimant’s duty to volunteer it.” Therefore, the injured worker abided by the Act and could not have committed willful misconduct (in other words, if the injured worker violated the “reasonable expectations” of employer here, the expectations of employer were simply not reasonable).