Supreme Court Grants Petition For Appeal on Job Availability When Claimant Has Relocated

In Motor Coils MFG/WABTEC, v. WCAB (Bish) the Employer offered a suitable job with the Employer to the Claimant, who had moved to Oklahoma. The reasons for the Claimant's move were reasonable. The Employer had downsized her and her husband prior to the offer, and he found work in Oklahoma at almost twice what he was making for the Employer.

Section 306(b)(2) provides, however, that "Earning power shall be determined by the work the employe is capable of performing ... If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply..."

The Commonwealth Court noted this was an actual job offer, and cited several cases in which the Court has held the criteria for a job offer under Kachinski still applies. One of these criteria is that the offered job must be within reach of the Claimant's residence.

The Supreme Court granted the Employer's Petition for Appeal. It does seem inconsistent that had the job been located only within the scope of a labor market survey, suspension would have been granted. The question is whether the Employer must go through the exercise. There is no requirement to do so during incarceration, and Smith v. W.C.A.B. (Dunhill Temporary Systems) 725 A.2d 1285 (Pa. Cmwlth. 1999) held it would be "irrelevant and fruitless" to establish a change of condition or job availability where the Claimant joined the Peace Corps and moved to Africa.

Update: The W.C.A.B. affirmed my decision in a case where the Claimant moved to New Zealand. A prior decision denying termination found the Claimant was able to work with restrictions. The Employer requested suspension on the basis that a labor market survey conducted in Pennsylvania would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. I granted suspension on this analysis and the Board affirmed.

However, there may be situations where the Employer will have to go through the exercise. In Bish, the modified duty job was not available on the open labor market. In my case, the Claimant did not have a job in New Zealand, like the Claimant did in Smith. It is the Employer's burden to show relevant jobs exist that are suitable to the Claimant given the Claimant's physical capabilities, education and experience.