No duty to seek work elsewhere when given reasonable expectation of employment by employer.

The parties stipulated that the claimant sustained a compensable low back injury and that the employer paid the claimant wages in lieu of compensation up through January 20, 2017. The issue before was whether the claimant was entitled to total disability benefits as of January 21, 2017, and thereafter, even during periods of time when she had been released by the treating physician to modified work. The claimant contended the employer had held out the notion that she would be returning to work in a modified-duty position, but the employer disputed this.

The Board analyzed this case under the Hoey case doctrine, a bright line standard placing the burden on the employer to take affirmative steps to place a worker on notice that he or she is a displaced worker by either discharging the employee or giving direct notice that a position will likely never be made available. Under the Hoey doctrine, a claimant with a compensable injury who has work restrictions may still be considered effectively totally disabled if the employer engages in contact providing the employee with reason to believe the work restrictions will be accommodated but then fails to provide suitable employment.

The Board held that under the Hoey doctrine, the claimant was entitled to total disability benefits from January 21, 2017, up through the hearing date of August 29, 2017, and even for periods when she was clearly able to do modified work. The Board further found that, as of August 30, 2017, and ongoing, the claimant was entitled to partial disability benefits based on a loss of earning power established by Labor Market Survey evidence that was presented. 

_{Case Law Alerts, 2^nd Quarter, April 2018}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2018 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}