Wednesday, June 30, 2010

Commonwealth Court Modifies Benefits of Claimant Who Applied For And Did Not Get Jobs in Labor Market Survey

In Phoenixville Hospital v. WCAB (Shoap) the Claimant received a Notice of Ability to Return to Work sometime after a May 9, 2007 IME. In July the Claimant received a Labor Market Survey (LMS) listing three jobs. The jobs were open and available on May 21, June 5 and June 11. The Claimant applied for the jobs and did not receive an offer of employment. In August the Claimant received a supplemental LMS with jobs available July 9 and one continuously available. The Claimant did a telephone interview with the last employer and was told she could not work at the position. The Claimant did not look for work independently.

The WCJ denied the Employer's modification petition. The WCJ's decision was consistent with South Hills Health System v. WCAB (Kiefer) with one difference. The WCJ did not reject the credibility of the vocational expert's earning power opinion (based on the LMS) on the basis that the Claimant applied for the positions and did not receive any responses. The Board affirmed.

The Court held that under these circumstances, the record supported a modification of benefits based on South Hills and Section 306(b)(2) of the Act. The Court said only the position that the Claimant was interviewed for and rejected at was unavailable. It was the lowest paying job. The Court nevertheless modified benefits based on the average of all the jobs, because that was the relief the Employer requested.

The Court stated the Claimant was obligated under the Notice of Ability to Return to Work to look for work when the jobs were open and available. Without more, the fact the Claimant applied a month later and did not hear back does not rebut the testimony of the vocational expert that the jobs were open and available. The Court stated Kachinski v. WCAB (Vepco Construction Co.) 532 A.2d 374 (1987) is, with limited exception, an antiquated standard. The Court also suggested that modification based on last month's open and available jobs is not harsh, because similar employment opportunities will regularly become available. The Court clearly explained this is the result Section306(b)(2) requires.