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Complaints that his apartment was too small to use as a home office and his work station would be awkwardly placed in his bedroom was enough for the Commonwealth Court of Pennsylvania to conclude that a claimant refused his employer’s offer of a work-at-home position in good faith. The three-judge panel in Bussa v. Workers’ Compensation Appeal Board, led by Commonwealth Court Judge James Flaherty, reversed both a workers’ compensation judge and the WCAB. The lower tribunals had decided claimant Steven Bussa could perform the offered job. Bussa received benefits for a work-related lumbrosacral strain that occurred on Feb. 4, 1991. His employer, Giles & Ransome Inc., filed a petition for modification, alleging that as of Aug. 12, 1992, Bussa was capable of performing light-duty work for 20 hours per week. Bussa countered that was not true. At a hearing before a workers’ compensation judge, Giles presented the testimony of its risk management coordinator, who 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. On Aug. 12, 1992, approximately one week after Bussa left the light-duty position, Giles sent Bussa a letter offering him the same job, but this time it gave him the option of working from his home. Bussa was told he could work anytime between the hours of 7 a.m. and 6:30 p.m., Monday through Friday, with a target of working 20 hours per week. The risk manager testified that because Bussa already had a home computer, the only other equipment he would need to perform the job was a modem and another phone line. Bussa turned down the offer by letter, stating that he was unable to accept it due to his “health and living limitations” and because his wife was concerned about their home turning into an office. On Oct. 20, 1992, Giles offered Bussa the work-at-home position again, saying that his treating orthopedic surgeon, Herbert Stein, M.D., said his condition had improved enough to allow him to work. This time, Bussa accepted the job. An additional phone line was installed in his home, and Giles’ director of computer services visited the home to determine what kind of software Bussa would need. Before the proper software could be installed, however, Bussa reneged on his acceptance of the job offer. Stein also testified at the WCJ hearing. He said he reviewed the work-at-home job offer and opined that it was a position Bussa could possibly perform, so long as he could work only about three to four hours per day and be able to “change his position ad-lib, moving from sitting to standing to walking.” Bussa also testified about his ability to work from home. He said his apartment is 528 square feet and presented pictures of the apartment to the court. Bussa also described his computer setup, which was in his bedroom. He said the terminal was on top of an entertainment system and there were only about 28 inches between the entertainment center and the foot of the bed. He said someone could walk through that space, but not sit. “You have to [put] a chair sideways and angle it at about a 45-degree angle,” Bussa testified. “And you have to turn the upper part of your, your torso, toward the keyboard, or put the keyboard in your lap which is very uncomfortable.” Bussa said there was no other place in the apartment to put the computer. “[Bussa] also stated that his wife was sick and bedridden for several months and expressed concern over performing the offered job at home for this reason,” Flaherty said. The WCJ rejected Bussa’s testimony, finding that he did not decline the job offer in good faith, and granted Giles’ modification petition. The Workers’ Compensation Appeal Board confirmed. On appeal, Flaherty pointed to the seminal job availability test, created in the 1987 state supreme court case Kachinski v. WCAB. The test requires 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. The claimant then has the burden of proving that he or she responded to the offer in good faith. Benefits can be modified if the claimant did not respond in good faith. The determination of whether a job is “actually available,” Flaherty said, may consider the claimant’s physical limitations, age, intellectual capacity, education, previous work experience, place of residence, distance of commute and length of workday. The court applied a totality of the circumstance approach to Bussa’s case, and found that he refused the job in good faith. “Applying the totality of the circumstances approach set forth in Blakeslee to the relevant facts of this case, we find that because of the small size of [Bussa's] apartment, the placement of the computer on an entertainment center rather than a dedicated workspace and the location of the computer in the bedroom, it is not appropriate, as a matter of law, for [Bussa] to perform the offered job from his home,” Flaherty said.

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