LEGAL UPDATE

As an employer, it can often be difficult to return an injured employee to the work force. For those of you familiar with the “100-week rule,” oftentimes it is frustrating if not outright maddening.

Under the Reasonable Employment Provisions of the Workers’ Compensation Disability Act, if an employee returns to reasonable employment and is terminated for whatever reason before 100 weeks of work are completed, then the injured employee is entitled to benefits as long as he is partially disabled. The reason for his termination does not matter.

The employee can engage in any work-place behavior, get fired, and still be entitled to benefits as long as he engaged in reasonable employment and it is less than 100 weeks.

Fortunately, as illustrated by the court’s recent decision in Barakat v Sky Chefs, the courts have shown a willingness to address the inequities that are presented when an employee refuses to cooperate with a return to reasonable employment, or otherwise engages in a violation of company policy.

In Barakat, the plaintiff was injured while pushing a cart up a ramp into an airplane, the ramp came loose from the plane, dropping the plaintiff about six feet to the ground. As a result of his injury, it was determined by the magistrate the claimant was disabled due to a herniated disc at L4-5.

In an attempt to mitigate its damages, the employer returned the plaintiff to reasonable employment. Upon returning to reasonable employment, the plaintiff engaged in threatening, menacing behavior towards his supervisor. In making the determination of whether the claimant’s threatening behavior constituted a constructive refusal to perform reasonable employment, the magistrate acknowledged the previous Appellate Commission case of Frost v Brook’s Beverage Management, 2001 ACO #26 and the enumerated factors in which an employee may constructively refuse reasonable employment. The principle ways in which an employee may be shown to have constructively refused reasonable employment are “[f]irst, an employee may persistently engage in conduct that belies the evowed intention to accept and return to reasonable employment; Second, the employee may refuse to comply with safety regulations designed for the protection of the employee or co-workers; Third, when an employee directly makes a serious threat of physical harm to supervisors or co-workers, the employee has constructively refused to perform reasonable employment.”

In Barakat, the magistrate found that there was no evidence documenting a consistent pattern of refusal to perform work on the plaintiff’s part. Second, there was no contention that the plaintiff refused to comply with safety rules or regulations. Third, the claimant’s conduct of confronting the supervisor was not severe enough to constitute a “serious threat of physical harm.” The Commission affirmed the magistrate’s award of benefits.

Of importance, is not the ultimate outcome in Barakat, but rather the court’s willingness to apply the factors enumerated in Frost under which an employee’s conduct may result in a constructive refusal of reasonable employment.

Of practical importance, it stands for the proposition that employers have the right to mitigate damages and return an employee to reasonable employment. If the employee does not attempt a good-faith performance of the reasonable employment, benefits may be suspended. In addition, the employee must still comply with company policy and safety regulations otherwise the employer has the right to discipline the employee regardless of whether the employee has been performing reasonable employment for less than 100 weeks.

Finally, if an employee makes a threat of serious physical harm, that employee may be terminated with no benefits due and owing.

As the above indicates, there are circumstances where an employee who works at reasonable employment for less than 100 weeks and loses that employment or is terminated for just cause, will not be entitled to benefits. If you encounter a situation in which you feel and employee has engaged in a constructive refusal of reasonable employment or have a question about any other matter, please feel free to contact Thomas H. Cypher or James J. Helminski, attorneys at Bleakley, Cypher, Parent, Warren & Quinn, P.C., at 1-616-774-2131.