Refusal of Employment as Employer Defense

Workers’ compensation disability benefits are payable based on the nature of the employee’s work-related injury or illness and the employee’s corresponding lack of earning capacity. When an employee can return to work, his disability benefit payments will cease. In some instances, an employee’s benefits are based on his inability to obtain work due to his condition. However, employers may counter that the fault lies with the employee, not his condition, because the employee has unreasonably refused to engage in suitable work. For example, an employer may prevail when an employee refuses a lighter work position offered by his employer. The employer carries the burden of demonstrating that the employee possesses the ability to perform the offered position.

Generally, the employee’s benefits will be suspended for as long as he refuses to accept the suitable work offered. There is a dichotomy of holdings among the states with respect to the end of the suspension. In one respect, it has been held that the suspension ends when the employee deigns to accept it, even if the offered position is no longer available. The foundation of this holding is that only the employee’s actions can terminate the suspension period. The act of the employer in, for example, withdrawing the offer, has no effect on the suspension period. In another respect, it has been held that the suspension period ends on the date that the position becomes unavailable. Here, the reasoning is that it is no longer the employee’s refusal that is keeping him from obtaining the suitable position but, rather, the mere fact that there is no longer a position to refuse.