Originally published in The Legal Intelligencer, an ALM Media publication, on January 11, 2018.
By: P.J. Dannuzio
The Commonwealth Court has ruled that while employers seeking a modification of workers’ compensation benefits based on proof of earning power must show that positions identified in a transferable skills analysis are open and available, a claimant’s own testimony about pursuing those jobs could also be used to bolster the employer’s case.
A divided en banc Commonwealth Court panel held that claimant Dennis Smith’s workers’ compensation benefits should be reduced from $661 to $336 per week based on the availability of jobs that Smith could perform with his educational and physical restrictions, as identified in a labor market survey by his employer’s vocational expert.
On appeal, Smith argued that the workers’ compensation judge erroneously modified his benefits based on five positions that were identified in the vocational counselor’s transferable skills analysis as open and available. The Commonwealth Court said Supervalu was entitled to a reduction in benefits, though it found that the evidence was only sufficient to show that two of those five positions were open and available.
“Because employer established the existence of two open and available jobs within claimant’s vocational, physical and medical restrictions, employer is entitled to a modification of benefits based on those two positions,” Judge Robert Simpson wrote in the Commonwealth Court’s majority opinion. “As such, rather than averaging the weekly rate of the five positions identified in the labor market survey, as the WCJ did … employer is entitled to a modification of benefits based on the average weekly rate of the two security guard positions.”
The proof establishing the existence of the two open and available jobs came from Smith’s own testimony that he inquired in person about two of the positions in the labor market survey, was instructed on how to apply for them, submitted his applications and was interviewed but ultimately not hired.
To support this finding, Simpson cited the Commonwealth Court’s December 2017 ruling in Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab).
In that case, the court expanded the burden of proof in modification cases by holding that, under the state Supreme Court’s 2013 ruling in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), a claimant can present evidence to dispute an employer’s claims that comparable jobs were open and available. However, according to Simpson, the Valenta court also “held that if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, the evidence can be considered against her in the overall evaluation of the availability of the jobs.”
“Based on our recent decision in Valenta, we hold that an employer bears the burden of proving all facts entitling it to a modification of benefits, including the continued availability of jobs identified as proof of earning power,” Simpson explained. “However, if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, that evidence can be considered on the issue.”
So, as in Smith’s case, ”testimony of an in-person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding” that a position is open or available, Simpson said.
Simpson was joined in the majority by Judges Renee Cohn Jubelirer, P. Kevin Brobson and Michael H. Wojcik. Judge Patricia A. McCullough wrote a concurring opinion, joined by President Judge Mary Hannah Leavitt.
In that opinion, McCullough concurred with the result of the majority’s ruling but disagreed with its analysis of Valenta.
McCullough said she was “concerned that the present majority opinion may be construed as shifting the burden to the claimant to establish that any identified jobs are not open and available, an outcome which is not directed by either Valenta or Phoenixville Hospital.”
“Contrary to the majority, we did not hold in Valenta that ‘if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, the evidence can be considered against her in the overall evaluation of the availability of the jobs,’” she wrote. ”Rather, we merely held that, under Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), a claimant must be permitted the opportunity to present evidence regarding his/her experience in applying for jobs identified by an employer as being open and available.”
In a dissenting opinion filed by Judge Joseph M. Cosgrove, the judge voiced agreement with McCullough that the majority misread Valenta and misapplied Phoenixville but disagreed with the result of the majority’s ruling.
In Phoenixville, Cosgrove said, “the Supreme Court made clear that it was the employer which bore the burden of establishing that ‘the jobs identified by the employer’s expert witness that the claimant is ‘capable of performing’ must thus be those jobs that are actually open and potentially available.’ … The way the majority applies this principle turns it on its head and allows a mechanism designed to protect the claimant to become a force against him or her. This cannot be what the Supreme Court meant.”
James Welker of Jubelirer, Pass & Intrieri represents Smith and did not return a call seeking comment. Supervalu is represented by Andrew Riley of Dell, Moser, Lane & Loughney, who did not return a call seeking comment.