Pennsylvania Supreme Court Determines That Job Availability Pursuant to a Labor Market Survey Must Be Focused on Where Injury Occurred
In Riddle v. WCAB, the Supreme Court of Pennsylvania has determined that when an employer pursues a Labor Market Survey under the Pennsylvania Workers’ Compensation Act, for non-residents, it “must focus its job availability analysis on the area where the injury occurred….” The Court found that the General Assembly defined the method for evaluating “earning power” in unequivocal language that identifies the area where the injury occurred as the relevant location for non-residents. 77 P.S., sec 512 (2).
The Claimant, Harry Riddle, is a West Virginia resident formerly employed as an electrician by Allegheny City Electric in Pittsburgh. He suffered a work-related injury described as right shoulder tendonitis in August 2000. The Employer, in March 2005, petitioned for a modification or suspension of his benefits based on a release to light duty work by his treating physician. The employer asserted that considering his age, skills, education, experience, and work availability in the relevant geographical area, that he had an earning power necessitating a reduction in his workers’ comp indemnity.
The Labor Market Survey was completed for the Wheeling, West Virginia area where he resided at the time of the Survey- even though he was injured in Pennsylvania.
The Workers’ Comp Judge granted the modification petition and reduced Riddle’s benefits. On appeal to the Workers’ Compensation Appeal Board, the Board affirmed the reduction of benefits.
The Commonwealth Court then held that the employer was not precluded from obtaining a modification of benefits based on job availability in West Virginia, Ohio, or Pennsylvania because Appellant had a residence in West Virginia and stayed with his father in Ohio, where he also held a driver’s license.
The Supreme Court noted that 77 P.S., sec 512 (2) describes the means by which the employer could satisfy its burden of proving earning power- in that earning power is a “function of the work the employee is ‘capable of performing’ and job availability ‘in the usual employment area'”. The employer, it noted, could carry its burden of proof by introducing expert testimony as to both elements. With respect to injured employees who do not live in Pennsylvania, “the usual employment area where the injury occurred shall apply”.
The employer tried to argue that the statute merely requires that the area of injury- Pittsburgh, must be used as a starting point in developing an earning power assessment. It read the statute as permitting the employer to develop an EPA for additional areas with which Appellant (Riddle) had economic and vocational ties, such as parts of West Virginia and Ohio, in order to discover his “true” earning power. The employer did not want a strict reading of the statute, obviously, and wanted to adopts its own interpretation.
The Supreme Court rejected the employer’s broad interpretation, finding the phrase “shall” as mandatory in its common usage as well as legal parlance. When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S., sec 1921.
Overall, I think the Supreme Court made the right decision. The words of the Act are clear.
If you have any questions as to how this case may apply to your situation, please call me directly at (267) 651-7945 or email Michael@cardamonelaw.com
-Michael W. Cardamone- Fighting For Injured Workers In Pennsylvania
