By Lisa D. Eldridge

Your humble author does not like to quote one of the most hackneyed reality television catch phases of the last two years, but the phrase is an appropriate introduction to a fact pattern that frequently arises in the workers' compensation setting.

The employer offers a light-duty job to an employee who has sustained a work-related injury. The employee accepts the employer's offer and returns to the light-duty post.

During her tenure toiling at the light-duty post, the employee commits what the employer believes to be a serious transgression. The employer dismisses the employee.

Yes, reader, you anticipated correctly. The employee files with the Pennsylvania Bureau of Workers' Compensation a Petition for Reinstatement in which she argues that the employer should begin to pay weekly total temporary disability benefits to her because she is no longer working for it.

The employer often counters by filing a Petition for Suspension in which it argues that the employee returned to work -- albeit to an alternative, light-duty position -- but the employee's wage loss is now due to her failure to perform her job duties in line with the employer's work rules.

At the very end of 2005, the Commonwealth Court of Pennsylvania issued its opinion and order in the case of Virgo v. WCAB (County of Lehigh-Cedarbrook), 890 A2d 13 (Pa. Cmwlth. 2005). On its face, the Commonwealth Court's Virgo opinion and order appeared to be a belated holiday present to employers and their insurance carriers, or third-party administrators, who do not want to reinstate the payment of weekly total temporary disability workers' compensation benefits to ill-behaved employees whom they have terminated for cause.

The "termination battle" cases are fact driven. Therefore, it is important to examine the facts of Virgo v. W.C.A.B.

On July 7, 2000, Virgo started to work for the County of Lehigh-Cedarbrook as a full-time certified nursing assistant. Within one year and seven months of her start date, Virgo sustained several work-related injuries while lifting a patient.

On Nov. 12, 2002, County of Lehigh-Cedarbrook issued its Notice of Compensation Payable for Virgo's incident. In its NCP, the County of Lehigh-Cedarbrook recognized that Virgo sustained work-related injuries to her lower back, right hip, and right knee. To Virgo's credit, from Dec. 15, 2001, to Nov. 12, 2002, she did not stop working for the County of Lehigh-Cedarbrook.

Eventually, Virgo's physician limited her physical work activities. On Dec. 18, 2002, County of Lehigh-Cedarbrook assigned Virgo to a light-duty position.

On Jan. 2, 2003, County of Lehigh-Cedarbrook terminated Virgo for her less-than-stellar work performance. County of Lehigh-Cedarbrook reported that it administered to Virgo two unsatisfactory annual performance ratings. In response to County of Lehigh-Cedarbrook's dismissal of her, Virgo filed with the Bureau her Petition for Reinstatement in which she alleged that on the day that County of Lehigh-Cedarbrook discharged her, she had not fully recovered from her work-related injuries, evidenced by the fact that she was on light duty.

The County of Lehigh-Cedarbrook, not to lose ground in the petitions race, filed with the Bureau its Petition for Suspension against Virgo in which it alleged that Virgo was not working for it due to her poor performance and not due to her work-related injuries.

Both parties presented to the workers' compensation judge their respective positions about County of Lehigh-Cedarbrook's termination of Virgo.

Virgo described the tasks that she had to perform and her work injuries, and Virgo indicated that she disagreed with County of Lehigh-Cedarbrook's assistant director of nursing, Barbara Valentine's, assessment of her performance. Virgo stressed to the judge that her performance was great and that County of Lehigh-Cedarbrook did not fairly evaluate her performance because County of Lehigh-Cedarbrook provided to her jobs under which she would have to lift and bend, activities that her physician prohibited her from performing while she was on light duty.

However, Virgo admitted that County of Lehigh-Cedarbrook met frequently with her to discuss her questionable job performance.

Valentine testified for County of Lehigh-Cedarbrook. Valentine noted her responsibilities as the overseer of the nursing units and the evaluator and disciplinarian of the employees. Valentine described the manner by which County of Leigh-Cedarbrook examined its new employees at various points throughout the year and the penalties that the County imposed upon its employees who do not meet its standards. Valentine remarked specifically that it is County of Lehigh-Cedarbrook's policy to dismiss any employee who receives two unsatisfactory annual evaluations.

Valentine detailed all the written warnings that County of Lehigh-Cedarbrook administered to Virgo, the dates on which the County of Lehigh-Cedarbrook suspended or issued unsatisfactory ratings to Virgo, and the session at which County of Lehigh-Cedarbrook informed Virgo that it planned to terminate her for her poor performance. Finally, Valentine explained the meaning of County of Lehigh-Cedarbrook's evaluation categories and how Virgo fell short of satisfying County of Lehigh's standards.

The judge reviewed all of the evidence and dismissed Virgo's Petition for Reinstatement and granted County of Lehigh-Cedarbrook's Petition for Suspension. The judge held that County of Lehigh-Cedarbrook's termination of Virgo was not related to her work incident and injuries but was related to her poor performance at her post and that Virgo's loss of earnings was due to her poor performance.

Of course, Virgo filed with the Workers' Compensation Appeal Board her appeal in which she alleged that County of Lehigh-Cedarbrook's poor rating of her alone in the absence of a specific act of wrongful conduct on her part was not enough to make her solely responsible for the county's firing her.

The WCAB disagreed with Virgo and affirmed the judge's decision and order. The further aggrieved Virgo, dissatisfied with the WCAB's opinion and order, filed with the Commonwealth Court of Pennsylvania her Petition for Review.

The Commonwealth Court was faced with the classic dismissal scenario, a fact pattern that it had faced many times in the past and about which it has struggled. Over several paragraphs and footnotes, the Commonwealth Court traced the somewhat tortured history of who retains the burden of proof for a Petition for Reinstatement.

Of course, Virgo and County of Lehigh-Cedarbrook pointed their fingers at each other. Virgo said that County of Lehigh-Cedarbrook had to show it terminated her because of her wrongful conduct. County of Lehigh said that it did not have the burden of proof and that Virgo must demonstrate that its discharge of her was not her fault.

The Commonwealth Court characterized the history of who retains the burden of proof for a Petition for Reinstatement as "murky." Although the Commonwealth Court did not completely clear up the muddle of who retains the burden of proof, the court offered that no matter how the burden shifts or who has the burden, County of Lehigh-Cedarbrook had the burden of establishing that Virgo acted in bad faith because County of Lehigh-Cedarbrook did not file any type of Bureau document or secure any type of Judge's decision under which it could formally suspend the payment of indemnity benefits to Virgo.

Thus, because County of Lehigh-Cedarbrook could not establish by affirmative proof that, during the time that Virgo returned to work for it, it had obtained an executed Supplemental Agreement or an Agreement for Compensation from Virgo; had filed with the Bureau or obtained a Notice of Suspension or Modification; or had secured a Judge's order under which it could suspend the payment of indemnity benefits to Virgo, County of Lehigh-Cedarbrook had to show that (1) it offered work to Virgo that fell within her restrictions and (2) Virgo's work-related injury did not cause her disability.

The Commonwealth Court then shifted issue gears and expressed that the true question that Virgo raised is "what constitutes bad faith (lack of good faith)" on her part? Virgo insisted to the Commonwealth Court that County of Lehigh-Cedarbrook had to demonstrate that she "committed a specific act tantamount to willful misconduct," a standard similar to the one that an unemployment compensation referee uses to determine whether an employee is entitled to unemployment compensation benefits.

The Commonwealth Court did not accept Virgo's proposed standard, and the Court offered that, in order for an employer to show that its employee acted in bad faith, the employer must establish that its employee "could work, if he or she would, but did not work."

Virgo also argued to the Commonwealth Court that, even if County of Lehigh-Cedarbrook does not have to show that she committed a specific heinous act of misconduct, its unsatisfactory job evaluations of her could not serve as the basis for its termination of her because their content consisted of inadmissible hearsay that she could not rebut. The Commonwealth Court disagreed again with Virgo. The Commonwealth Court said that, if one assumes that County of Lehigh-Cedarbrook's performance evaluations, written warnings, and Notices of Suspension to and above Virgo are not inadmissible hearsay, then they documented thoroughly the work violations that Virgo committed. The Commonwealth Court felt that the examples of Virgo's misconduct that County of Lehigh-Cedarbrook offered into evidence made it clear that the "Claimant could work, if she would," making her discharge her fault due to her conduct.

Finally, Virgo asserted to the Commonwealth Court that the Judge should not have admitted County of Lehigh-Cedarbrook's performance and disciplinary reports about her because they were hearsay. The Commonwealth Court found that Virgo waived any hearsay argument when her attorney voiced that he did not object to County of Lehigh-Cedarbrook submitting them to the Judge. The Commonwealth Court held that, because the Judge admitted County of Lehigh-Cedarbrook's records without objection, the records fall within the business record exception of the hearsay rule and constituted substantial evidence to support the finding that County of Lehigh-Cedarbrook's discharge of Virgo was due to her "bad faith."

Throughout 2006, employers' attorneys turned to the Commonwealth Court's holding in Virgo for its analysis of who has the burden of proof in a battle over the dismissal of an employee who is on light duty.

The Commonwealth Court's Virgo opinion and order offers several lessons about which workers' compensation practitioners must take note.

To begin, subsequent courts will continue to initiate their analysis of any reinstatement scenario by reviewing the standard that the Supreme Court of Pennsylvania set forth in Pieper v. Amtek -- Thermo Instruments Division (WCAB), 584 A.2d 301 (Pa. 1990).

In Pieper, the Supreme Court offered that the employee retains the initial burden of establishing that, through no fault of her own, her earning power has been affected by a work-related injury and that the disability that caused her original claim continues. Courts will apply the Pieper standard to the reinstatement scenario when the employer files proper paperwork under which it has suspended the payment of indemnity benefits to the employee.

Thus, first and foremost, once an employee returns to work for an employer in a light-duty capacity, the employer must secure a formal suspension of the payment of indemnity benefits to the employee. The employer should file with the Bureau a Notice of Modification or Suspension, obtain from the employee a signed Supplemental Agreement or Agreement for Compensation, or file with the Bureau a Petition for Suspension, and secure a formal Judge's Order if the employee is not willing to cooperate.

As the Commonwealth Court set forth in Virgo, if the employer fails to secure a formal suspension of the payment of indemnity benefits to the employee, then the employer must show that it offered work to the employee within her restrictions and that "something other than her work-related injury causes her disability."

If the "something other than her disability" is the employee's bad faith, then the employer must present documentary and testimonial evidence of the employee's poor work performance to combat the employee's anticipated claims that she acted properly and that the employer simply fired her because she was on light duty.

For example, please recall that County of Lehigh-Cedarbrook kept an excellent written account of Virgo's less-than-stellar work efforts, which clearly documented Virgo's bad faith. Moreover, County of Lehigh-Cedarbrook's witness, Valentine, presented its written account against Virgo in clear and compelling testimony to the Judge.

Therefore, for any termination battle, the employer should anticipate that it will have to present as witnesses to the Judge its head of human resources, the employee's immediate supervisor, the employee's co-workers and/or its Custodian of Records to identify and substantiate the violations that its employee committed. The employer must recognize that it has to present to the Judge a picture of the employee as one who did not meet its work standards, standards that the employer has explained to the employee, and that it applies to all of its employees.

An employer should continue to offer light-duty programs to its injured employees as these programs are the best method by which to remove injured workers from the workers' compensation rolls. However, the employer must recognize that a reinstatement battle may ensue when it terminates an employee who is on light duty. Fortunately, under the Commonwealth Court's Virgo opinion and order, if the employer has the initial burden of proof, then the employer does not have to show that the employee committed a specific act of wrongful misconduct.

However, the employer should not believe that it can indiscriminately dismiss an employee without proper documentation of the employee's failure to perform up to its standards. The employer must avoid, at all cost, the appearance that it has ended its relationship with the employee because she is on light duty for frivolous reasons so that it does not have to reinstate the payment of indemnity benefits to the employee.

Lisa D. Eldridge is a shareholder in the Philadelphia, Pa., office of Marshall, Dennehey, Warner, Coleman & Goggin. She can be reached at ldeldridge@mdwcg.com. The law firm's Web site is http://www.marshalldennehey.com.

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