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The Supreme Court reverses the Commonwealth Court and holds that an earning power assessment performed in the area where the claimant resides is insufficient to justify a modification of benefits under §306 (b) of the Act.

January 1, 2010
Harry Riddle v. WCAB (Allegheny City Electric, Inc.); 54 W.A.P. 2008; decided October 22, 2009; by Madame Justice Greenspan

In this case, the claimant sustained a work-related injury while working for the employer in Pittsburgh, Pennsylvania. The claimant was a West Virginia resident. Following the injury, the employer filed a petition to modify/Suspend the claimant's benefits based on an Earning Power Assessment ("EPA"). The vocational counselor performed a labor market survey ("LMS") for the Wheeling, West Virginia, area and prepared an EPA based on this survey. None of the jobs used for the LMS were in Pittsburgh, Pennsylvania. The workers' compensation judge granted the petition, and the Appeal Board affirmed. The Commonwealth Court affirmed, as well, and the claimant appealed to the Supreme Court. The claimant argued that the plain language of §306 (b) controlled and that the EPA was not competent evidence to prove the claimant's earning power since the EPA should have focused on the Pittsburgh area only, where the claimant's injury occurred, rather than the Wheeling, West Virginia, area, where the claimant resided. The Supreme Court agreed with the claimant's position and reversed the Commonwealth Court. The Supreme Court held that the Act mandated a focus on the area where a claimant worked at the time of injury when performing an EPA. The employer may not avoid what the Court considered to be a statutory prescription in order to reduce or eliminate its obligation to pay benefits. If an EPA focused on Pittsburgh revealed no jobs, then no reduction of benefits was authorized under §306 (b) (2). The Supreme Court held that the EPA submitted by the employer was insufficient to justify a modification of benefits under §306 (b).

Case Law Alert - 1st Qtr 2010

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Francis X. Wickersham
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(610) 354-8263
fxwickersham@mdwcg.com

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