Work at Home Arrangement Fails Availability Test

The three-judge panel of the Commonwealth Court of Pennsylvania in Bussa v. Workers’ Compensation Appeal Board, reversed a workers’ compensation judge and the WCAB, both of which had determined that claimant Steven Bussa could perform the offered job, according to the Legal Intelligencer. In its conclusion, the court said that consideration may be given to the claimant’s:

• physical limitations
• age
• intellectual capacity
• education
• previous work experience
• place of residence
• distance of commute
• length of workday.

On appeal, the court relied on the job availability test, created in the 1987 state supreme court case Kachinski v. WCAB, requiring an employer to prove that the claimant’s condition has changed and that the claimant has been referred to a job that he or she can perform. At that point the claimant has the burden of proving that he or she responded to the offer in good faith. Benefits awarded can be modified if the claimant did not respond in good faith.

The court applied a totality of the circumstance approach to Bussa’s case, and found that he refused the job in good faith.

Case History

Plaintiff Bussa received benefits for a work-related lumbrosacral strain that occurred in early 1991. Roughly 18 months later his employer, Giles & Ransome, filed a petition to modify that claim, alleging that Bussa was capable of performing light-duty work for 20 hours/week.

His employer testified that Bussa accepted a 20-hour per week light-duty job with the company, but after three weeks told the company he could no longer perform the job because of his work injury.

About a week later, Bussa was offered the same job, but with the option of working from his home. Since Bussa already had a home computer, he needed only add a modem and a second phone line, according to the company.

However, Bussa turned down the offer, citing his “health and living limitations” and because his wife was concerned about their home turning into an office.

Two months later, Giles again offered Bussa the work-at-home position, saying that his treating orthopedic surgeon said his condition had improved enough to allow him to work. At that point Bussa accepted the job but reneged before his home “office” could be completely configured.

Hearing “Impaired”

At the workers’ compensation hearing, Bussa noted that his apartment was only 528 square feet, and that his computer terminal was located on top of an entertainment system with only about 28 inches between the entertainment center and the foot of the bed. He also stated that his wife was sick and bedridden for several months and expressed concern over performing the offered job at home for that reason.

However, that rationale was rejected by both the workman’s compensation judge and the Worker’s Compensation Appeal Board.