Dealing with workers’ comp is frustrating enough. But losing a case over a technicality is even more so.
Michael Dunn was a police officer for Upper Darby Township, PA. While trying to restrain a burglary suspect, Dunn fell and suffered injuries to both his shoulders.
After surgery on his left shoulder, he returned to light duty work for about six weeks, but Dunn still suffered pain in his right shoulder. Later, he had surgery on that shoulder, too.
Dunn entered rehab for one year, including a program called “work hardening” designed to improve his ability to perform the physical tasks specifically required of a police officer.
After a year, the surgeon who had operated on him twice determined the former officer still had upper extremity weakness and had reached maximum medical improvement. The surgeon said Dunn couldn’t return to work as a police officer.
The township sent Dunn to another surgeon for a second opinion. After seeing him once, the second doctor said Dunn had fully recovered and he could return to work.
Dunn received a letter telling him to report to his old job within a week. When he didn’t return, the employer filed to have his workers’ comp benefits terminated.
Two missing words
A workers’ comp judge ruled in Dunn’s favor and an appeals board agreed. Both agreed that the employer had failed to prove (1) Dunn had fully recovered from his work injury or (2) that the employer had work available that Dunn could perform.
The township took the case to a state court, claiming that the appeals board erred in not finding that Dunn could return to work in a modified job that was offered to him.
Whether Dunn could return to work came down to one doctor’s opinion against another’s. The court noted that Dunn’s surgeon had been his treating physician from the start, had performed both surgeries on him and oversaw his rehab program. The company’s doctor only saw Dunn once. So the court said the opinion of Dunn’s doctor was more credible.
Captain Anthony Paparo, Dunn’s supervisor, testified he was ready to accommodate him with light duty work. Dunn had told the employer’s doctor he thought he could return to light duty.
But the court noted that the employer didn’t specifically offer Dunn a light-duty job. It said a generic return-to-work letter wasn’t sufficient and Dunn couldn’t make a decision about returning to work without more information about what his duties would be.
For those reasons, the court refused to terminate Dunn’s workers’ comp benefits.
It appears Dunn and his captain could have come to an agreement about light-duty work. However, failure to communicate better — and the missing words “light duty” on the return-to-work letter — doomed resolution in this case.
(Upper Darby Township v. Workers’ Compensation Appeal Board, Commonwealth Court of PA, No. 2063 C.D. 2010, 8/10/11)
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