Commonwealth Court Defines Procedure for Proving Modification Based on Surveillance Evidence of Earning Power

J. Burrell v. WCAB (Philadelphia Gas Works, et al.) is a case that has application in many areas. In the final analysis the Commonwealth Court affirmed the Order of the WCJ and Board that imputed income of $9.93 per hour for eight hours per week based on evidence the Claimant was working at least that much as a shoe shiner in his mother's shop.

The first issue was whether modification can be granted without a Notice of Ability to Return to Work when surveillance found the Claimant working. The Commonwealth Court noted receipt of medical information documenting a change in condition triggers the Employer's obligation to send the Notice of Ability to Return to Work. The purpose of the statute is to place the Claimant on notice of the medical information. Where the Claimant deems himself able to work, such notice is not required.

The next issue was whether the Employer had to demonstrate it had no job available to the Claimant within his restrictions before an award of modification. The Court held where the Claimant deems himself able to work, this can only be an affirmative defense of the Claimant.

Another issue was whether the WCJ's holding that the Claimant's imputed hourly wage should be $9.93 was supported by substantial evidence. The Employer's Vocational Expert opined this is the average wage for a shoe shiner in Philadelphia. The Claimant basically argued he's not that good. The Court held the accuracy of the VE's opinion is beyond challenge when the WCJ gives full weight to the VE's testimony, and this determination is within the sole province of the factfinder.

Finally, the Employer requested a credit. The Court recognized "Unjust enrichment occurs when a person has and retains money or benefits, which in justice and equity belong to another." and a credit may be granted to prevent unjust enrichment. However, the Employer could not prove the Claimant received wages or gratuities.

Pennsylvania Workers' Compensation Practice and Procedure Reference 21.56; 21.38; 6.106