PA Supreme Court holds that employer’s burden of proof when seeking modification of benefits based on labor market survey requires showing existence of open jobs claimant is capable of filling, not simply the existence of jobs that already filled.
In this case, the claimant sustained a work-related injury to her left shoulder. The claimant received physical therapy, and three surgeries were performed on the shoulder. The employer later filed a modification petition based on the results of two labor market surveys.
During the course of litigating the modification petition, the claimant testified that she applied for the positions that were listed in the labor market surveys, but no offers of employment were made to the claimant. The claimant also testified that she did her own job search, but did not apply for any positions she had found on her own.
The Judge dismissed the employer’s petition and found that the claimant had made a good faith effort in following up on the jobs that were referred to her by the employer. In its appeal to the Appeal Board, the employer argued that the judge had improperly incorporated into his legal analysis the “good faith” component of Kachinski v. WCAB (Vepco Const. Co.), 532 A.3d 374 (Pa. 1987). According to the employer, the claimant’s good faith effort in applying for the jobs was simply not relevant.
The Board disagreed with the employer and affirmed the judge’s decision. However, the Commonwealth Court reversed. According to the Commonwealth Court, the critical question was whether the jobs were open and available at the time the labor market survey was performed, not when the claimant applied for the jobs in the labor market survey.
The Pennsylvania Supreme Court reversed the Commonwealth Court’s decision and remanded the case for additional findings. The Court recognized that under §306 (b) of the Act, an employer is not required to show that the claimant was offered a job in order to establish the claimant’s earning power. Nevertheless, considering that it must be shown that substantial gainful employment exists, the jobs identified by an employer’s expert witness that the claimant is “capable of performing” must be those jobs that are actually open and potentially available, not simply jobs that are already filled with existing employees. In other words, §306 (b) requires a showing of the existence of meaningful opportunities for the claimant to obtain employment and, thus, a claimant must have wide latitude to present evidence regarding his or her experience with applying for jobs identified by the employer’s expert witness.
Case Law Alert, 1st Quarter 2014