Disciplinary Discharge Precedent Set in PA

Harrisburg, PA (WorkersCompensation.com) – The Commonwealth Court of Pennsylvania case Waugh vs. Workers’ Compensation Appeal Board set precedent for future similar cases. But why? Some might be asking.

Because the April 13 ruling by a panel of judges set the tone for termination for any injured worker who fails to do their job for unrelated reasons after returning to work. That is the case for Inez Waugh, a nurse at St. Mary Medical Center, who lost her job and benefits for an injury she sustained while working. She was also terminated for performing procedures outside the scope of her duty upon return.

Pennsylvania-based esquire Paul Clouser, with McNee’s Wallace & Nurick, LLC, and author of a blog on the case featured on JD Supra, states that “such employees can and should be held to the same standards as other employees, including compliance with applicable policies and procedures.”

Clouser discussed the case with WorkersCompensation.com, explaining that the litigation process creates incentives for injured workers to attain “off-work status,” in order to maximize the potential settlement value of a claim. 

“For that reason, and because there is often an adversarial relationship already in place due to past litigation or bad feelings between the employee and employer, bad behavior in the workplace is a frequent byproduct of an on-the-job injury,” said Clouser, adding bad behavior can create added stressors for other employees, who are called upon to “shoulder the burden” of the non-performing injured worker. 

“Sometimes a simple issue, like a bad attitude, spreads throughout the organization, as the employer continues to tolerate behavior that it would not otherwise tolerate from its non-injured rank-and-file employees,” he said.

Workplace Fairness Executive Director Paula Brantner said Clouser's commentary may not always be the case, since workers' comp matters are determined by state and not federal law. “It is generally true, and not just in workers' comp cases, that ‘employees can and should be held to the same standards as other employees, including compliance with applicable policies and procedures.’”

In any case, separate state and federal laws aside, there are a matter of facts — ones that should determine termination, according to Clouser. “When behavior reaches the tipping point despite the employer doing everything possible to accommodate the injured worker, disciplinary action should be taken. 

“The terminated employee will likely seek reinstatement of workers’ comp benefits in this situation, and may even pursue other remedies under Wrongful Discharge or ADA/FMLA (Americans with Disabilities Act/Family and Medical Leave Act) actions, so the employer should be prepared to demonstrate, through testimony and documentation, how its policies were violated and why the violation(s) necessitated termination, as opposed to some lesser interim discipline,” Clouser said.

Workplace Fairness answers many questions on the “Retaliation: Workers’ Compensation” information page, with Brantner confirming the facts according to the nonprofit organization. “If there is a later dispute between the employee and employer, whether or not that employee was actually held to the same standard is likely to be at the heart of the issue, and is often the basis for a separate retaliation claim,” she said.

“Actions taken in close proximity to the triggering event raise an inference that the employment action was taken for retaliatory reasons. So employers can take actions that treat the employee the same, but many attorneys would advise against it, for fear that it would trigger a retaliation claim or exacerbate the conflict that already exists,” she said.

HRhero.com sponsored a report in 2013, “Workers’ Comp: How to Discipline or Terminate Claimants While Minimizing Your Legal Risks,” detailing how termination of an injured worker must be based on a “fair and honest cause or reason, regulated by good faith on the part of the party exercising its power,” as set in Pugh v. See’s Candies, Inc. in 1981.

Some legitimate discipline triggers include failing a drug and alcohol test, inadequate job performance, absenteeism, and as seen in nurse Waugh’s case, “dishonesty or abuse of company polices.” Clouser said the case that set precedent reveals the Court’s willingness to consider lesser disciplinary issues as sufficient to raise a bad faith flag, precluding the receipt of benefits.

“The Court clearly states that behavior need not rise to the level of ‘willful misconduct’ to disqualify a terminated injured employee from receiving further wage loss benefits,” he said.

Brantner said although employers may be legally entitled to take action against an employee filing a claim on the same basis that the employer would discipline or terminate an employee who had not previously filed a claim, doing so may exacerbate an already-adversarial situation and cause the employer to face an additional retaliation claim.

“There have been cases where employees have failed to recover on the underlying claim, but because the employer overreached in retaliating against the employee, and did NOT treat the employee like other employees were treated, the employer was forced to pay a significant recovery that it would have escaped had it not taken punitive action(s) after the employee filed a complaint,” she said. 

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