In some states, when workers are placed on permanent partial disability, it’s expected that injured employees will make a “good-faith effort” to find alternate employment they can perform. However, one state court just found a reason to overturn that 15-year precedent and allow a worker to keep collecting.
Carolyn Bergstrom worked for Spears Manufacturing Co. as a production janitor. One day, after lifting a garbage can and setting it back down, she felt pain in her back.
The next day the pain became severe, and she was reassigned to sorting parts. She was unable to do that because standing in one place caused her too much discomfort.
An orthopedic surgeon directed her to stop working and file for disability benefits. Initially, she was awarded permanent total disability by an administrative law judge (ALJ).
But the state workers’ comp board set aside that decision, and the ALJ suggested Bergstrom try to return to work. She did, and she was again assigned to the parts sorting job. She said she wasn’t able to perform the job for more than 3 hours because of pain and went home. The company fired her.
Then her award was reduced to permanent partial disability. The state’s workers’ comp board found that Bergstrom “didn’t exercise good faith” when she failed to perform alternate job duties that her company offered her after her injury.
An appeals court upheld the reduction of her award based on the “good-faith effort” doctrine that appeals courts in Kansas had applied to such cases for 15 years. In other words, a workers’ comp award could be reduced if the injured employee didn’t make a good-faith effort to seek out and accept alternate employment.
But a majority on the Kansas Supreme Court ruled that the state’s workers’ comp law contained no such good-faith provision. It ruled that appeals courts in the state had ruled incorrectly for years on the matter. So in this case, it reversed the lower court’s ruling and sent it back for further consideration.
The upshot: It appears until this is corrected by an act of the Kansas legislature, employees can decide they suffer too much pain after a workplace accident, leave their job and collect benefits without looking for alternate employment.
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Cite: Bergstrom v. Spears, Supreme Court of KS, No. 99,369, 9/4/09.