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An injured worker who was terminated the day he told his employer he had retained a lawyer failed to show prove to the court that he should be reinstated to his position.
In Koway v. Workers Compensation Appeal Board, a three-judge panel of the Commonwealth Court of Pennsylvania in Harrisburg on Wednesday affirmed a Workers Compensation Appeals Board decision that rejected the employee’s argument that his condition worsened and that his earning power was adversely affected by his injury.
Richard Koway injured his right foot and shoulder after slipping on oil and falling while working at Philadelphia-based MV Transportation Inc. on May 29, 2012. His workers compensation claim was accepted and he received physical therapy and surgery on his right shoulder. His indemnity benefits were suspended in July 2013 based on his ability to return to work in a full-time, light-duty capacity with no wage loss.
In 2016, he said his physician recommended shoulder replacement surgery, and after he revealed that recommendation, Mr. Koway retained an attorney. He claimed that on June 21, 2017, he told his workers comp caseworker that he had retained counsel and was fired that night. MV Transportation cited insubordination and complaints against Mr. Koway as the reason for his discharge. Mr. Koway acknowledged that he had been cited for insubordination after his supervisor told him to perform his duties in a different manner and he did not comply because he said he had an insufficient number of qualified employees to do all of the tasks necessary. His employer testified that he was disciplined on at least 14 occasions, and his crew also provided written reports reflecting Mr. Koway’s refusal to follow the plan.
Mr. Koway then filed a reinstatement petition, contending that his condition worsened and he suffered a decrease in earning power as a result, but a workers compensation judge in 2018 denied his reinstatement, holding that Mr. Koway had been returned to work at wages equal or greater to his time-of-injury wages and that he would have continued to earn those wages had he not been discharged for refusing to perform duties as directed. As a result, she held that the evidence did not establish that Mr. Koway’s earning power was adversely affected by the work injury. The Pennsylvania Workers Compensation Appeals Board affirmed the decision.
Mr. Koway appealed, arguing that the workers compensation judge erred in failing to find that his condition worsened and that he was charged for misconduct. The court affirmed the decision.
The court held that credible testimony supported the judge’s finding that Mr. Koway refused to carry out his work responsibilities as directed, and that he failed to present credible evidence demonstrating that his condition had worsened. As a result, the court held that the judge did not err in denying Mr. Koway’s reinstatement petition.
An appeals court has upheld a coal miner's reinstatement to his job, concluding his termination was because of his whistle-blowing activity.