The workers’ compensation lawyers at Liever, Hyman & Potter, P.C. serve Reading, Berks County, PA and Schuylkill County, PA.
The Commonwealth Court of Pennsylvania issued an important decision on June 30, 2010 for workers’ compensation claimants. In Phoenixville Hospital v. WCAB (Shoap), 2188 C.D. 2009 (Pa.Cmwlth. 2010), the Commonwealth Court held that, when an employer requests a reduction of workers’ compensation benefits using an estimate of the Claimant’s earnings based on a labor market survey, the fact that the Claimant applied for the jobs listed in the labor market survey, and did not receive any job offers, was not a defense to a reduction of benefits.
In that case, the Employer filed a Petition to reduce the Claimant’s workers’ compensation benefits using an estimate of earnings based on a labor market survey completed by a vocational expert, which listed five (5) jobs which were open and available and within the Claimant’s capabilities as established by the insurance company doctor. The Claimant applied for each of the positions a month or more after they were identified as open and available, and did not receive any job offers. The Workers’ Compensation Judge denied the Employer’s request to reduce the Claimant’s benefits, because she applied for the jobs listed in the labor market survey in good faith, but did not receive any job offers. The Workers’ Compensation Appeal Board upheld that decision.
On appeal, the Commonwealth Court stated that, under the Pennsylvania Workers’ Compensation Act, the Employer was entitled to a reduction of benefits based on evidence of Claimant’s earning power proved through expert testimony alone (i.e. a labor market survey), rather than evidence that the Claimant had obtained actual employment. The Court went on to hold that, since the Workers’ Compensation Judge in the case had accepted the testimony of the Employer’s vocational expert that the jobs listed in the labor market survey where actually open and available to the Claimant at the time the survey was completed, the fact that the Claimant applied for the jobs weeks later, and did not receive any job offers, was immaterial. The Commonwealth Court also noted that the Claimant had an obligation to pursue employment opportunities upon receipt of the Notice of Ability to Return to Work and before receiving any earning power assessments or labor market surveys.
The Commonwealth Court, accordingly, reversed the prior decision, and reduced the Claimant’s workers’ compensation benefits.
By Andrew F. Fick, Esquire