Unfortunately for injured workers the answer is no. In this Commonwealth Court of Pennsylvania Decision, handed down on November 8, 2013, the Court held that an employer does NOT have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition. Rather, a claimant may present evidence that “during the period in which the employer…had a duty to offer a specific job,” the employer had a specific job vacancy that it intended to fill that claimant was capable of performing. The burden then shifts to the employer to rebut the claimant’s evidence. The Court found that the Employer in this matter did not have any available positions within the retails stores that fell within Claimant’s restrictions. Further, Claimant failed to show that the Employer was actively recruiting for a specific job vacancy or that Employer had posted the existence of a specific job vacancy.
Claimant also asserted that the Employer’s vocational expert was required to contact the Employer about open and available jobs at its retail stores that Claimant was capable of performing PRIOR to conducting the labor market survey. The Commonwealth Court disagree, finding that neither the Act, nor any decisional law or Department regulations support that proposition.
The Commonwealth Court cited Section 306(b)(2) of the Pennsylvania Workers’ Compensation Act and Section 123.301 of the Department’s regulations to find:
“to prevail in seeking a modification of benefits, an employer must either: (1) offer to a claimant a specific job that it has available, which the claimant is capable of performing, or (2) establish ‘earning power’ through expert opinion evidence including job listings with employment agencies, agencies of the [Department], and advertisements in a claimant’s usual area of employment.” (citing South Hills Health Sys v. WCAB).
The bottom line here is that the Pennsylvania Workers’ Compensation Law does not require proof of the absence of specific jobs with the employer as a pre-requisite to expert testimony regarding “earning power”. But, the law does require an employer to offer a position to a claimant if it exists.
This Decision is not fair in my opinion. Why not? In a modification petition setting based on a labor market survey, the claimant is receiving indemnity benefits. To change the status quo, the employer/insurer has the burden of proof. It should, similarly, have the burden of demonstrating the absence of any appropriate job rather than putting that burden on a claimant who lacks the resources and access to the employer and its job availability information. This is just another disturbing example of the increasingly conservative rulings aimed at protecting employers and insurers to the detriment of injured workers and in clear defiance of the humanitarian spirit of the Act.
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