Tuesday, February 05, 2008

Commonwealth Court Remands In Modification Case Where Employer Provided Work Within the Claimant's Restrictions Then Took It Away

C. Rosenberg v. WCAB (Pike County) is a case of modification of benefits based upon a labor market survey. The Claimant is a corrections officer who suffered a knee injury. The Employer then placed the Claimant in a job the Claimant was capable of performing as a clerical worker with the Board of Elections. The Claimant was performing this job when the Notice of Ability to Return to Work was issued.

About a month after the Notice of Ability to Return to Work, the Claimant was terminated with the explanation that she was not expected to return to her regular duty position and the County does not provide permanent light duty positions. She was replaced in the Board of Elections with a newly hired person.

The WCJ granted modification in the case. The Claimant had some later jobs, evidencing earning power under Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works & Compservices, Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). However, the WCJ relied upon evidence of earnings in open jobs, not the earnings of jobs the Claimant actually held after leaving County employment. Accordingly, the Court held the case is controlled by South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa. Cmwlth. 2002). The Court remanded for the WCJ to make a finding whether the Employer met its burden to establish it had no work the Claimant was capable of performing.

The record on remand may establish the Employer accommodated restrictions of the Claimant while performing the Board of Elections job. If the Claimant was unable to perform essential functions of the job, the Employer did not have to offer it to her. The job also could have been unavailable to the Claimant if a collective bargaining agreement required that she vacate the position. However, if the Claimant could have continued to work in the job but for the Employer’s policy decision to terminate her, the Employer should be prohibited from obtaining a modification of benefits by vocational expert testimony regarding open jobs.

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