Already Gone: Employer’s Offer of Modified Duty With No Wage Loss Still Valid After Claimant’s Relocation

Today’s post offers some insight on the topic of Section 2353 (c)  Forfeiture —   that is, the Claimant’s refusal of Employer’s reasonable offer of appropriate modified duty.

THE FACTS: Claimant was released to work, was offered a light duty job by the Employer, but declined because she had moved out of state for personal reasons.  As a result, no entitlement to TPD.  Something to note: Employer did not testify.  The only testimony on the circumstances of the job offer was from the Claimant.  There was no direct testimony that the modified duty had no wage loss associated with it, although that appeared to be part of the Employer’s argument. 

So the takeaway here is that an otherwise appropriate offer of modified duty is not nullified by the claimant’s relocation, a factor obviously beyond employer’s control.  From the defense perspective, talk about the best of both worlds— your TPD exposure is insulated by the offer and the risk of re-injury or further RTW complications is eliminated by claimant’s inability to accept the offer.  Now that’s what we call a win/win.  An additional little nugget to be pulled out of this case is yet another pronouncement by the Board that an eleventh-hour, attorney-prompted job search in preparation for a PFR hearing is not the indicia of a good faith quest for re-entry into the work force.

The case is Michelle Howard v. Avalanche Strategies, LLC, IAB No. 1497645 (May 6, 2021).

Irreverently Yours,

Cassandra Roberts