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Dennis Smith v. WCAB (SuperValu Holdings PA),
No. 796 C.D. 2016 (Pa. Cmwlth. Ct., 2018)
In an Opinion filed January 5, 2018, close in time to its prior Opinion in the case ofValenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), No. 1302 C.D. 2016, (filed December 7, 2017), addressing the issue, the burden of proof in a vocationally based case involving an Earning Capacity Assessment is further explored and clarified by the Pennsylvania Commonwealth Court.
This was a Claimant’s Appeal from the grant of a Petition to Modify by a Workers’ Compensation Judge based on a Labor Market Survey reflecting five (5) available jobs with an average wage of $456.00 a week. The WCAB affirmed, noting that in its view there was compliance with the directives of the Pennsylvania Supreme Court set forth in the case ofPhoenixville Hospital v. WCAB (Shoab), No. 32 EAP 2011 (Supreme Court of Pennsylvania, November 21, 2013). The Commonwealth Court affirmed the WCAB, other than for a small change in the applicable weekly benefit rate.
The Claimant, Mr. Smith, sustained a work injury in February 2011 involving his head and neck when a case of product fell on him. A Notice of Temporary Compensation Payable, later converted, recognized the injury as a cervical strain/sprain with a temporary total disability rate of $661.67, based on an average weekly wage of $992.50. The subject Petition to Modify was filed in November 2013, alleging earning power of $440.00 a week, which would reduce the Claimant’s weekly rate to $368.33. The Claimant filed an Answer denying the allegations of the Petition to Modify. The Employer’s Request for Supersedeas was denied.
An Expert Vocational Interview reflected various transferable skills and five (5) employment positions in the Claimant’s geographic area, open and available, including jobs as a dispatcher, alarm dispatcher operator, dispatcher, and two (2) security guard positions. The pay for the jobs ranged from $360.00 to $440.00 a week.
The Claimant was post-surgical. A post-surgical complication in the nature of a failed fusion was noted in the record.
Mr. Smith agreed he met with the defense vocational expert and further stated that he applied for the five (5) identified positions. He was not offered employment. He also conducted a job search on his own but was not interviewed or offered employment based thereon.
The Workers’ Compensation Judge accepted the expert vocational testimony as credible and persuasive, notwithstanding that the Claimant applied for the five (5) positions identified therein via the Labor Market Survey, noting that there was no evidence of record suggesting that the five (5) positions were not open and available at the time of application or that the jobs were already filled at that time and did not exist. The Workers’ Compensation Judge therefore modified wage loss benefits.
Both parties appealed to the WCAB which as noted affirmed. The WCAB noted that the identified jobs were consistent with the Claimant’s transferrable skills and were in a suitable geographic area in terms of the applicable labor market.
The Claimant argued that the WCAB improperly shifted the burden of proof to him to establish that the positions in question were not open and available, and thereby improperly applying thePhoenixville case.
The Commonwealth Court noted that the testimony of the vocational expert was that the identified positions were open at the time of the Survey and further noted that the Claimant applied the positions which apparently remained open - and there was no indication that any evidence was presented that the positions were not open as of the time of the Survey. In the view of the WCAB, the opinion inPhoenixville provides the Claimant with the opportunity to present evidence that he applied for the indicated positions but that none were open. The WCAB then observed that the WCJ found there was nothing in the record to indicate the five (5) positions were not open and available at the time of Claimant’s application. That is, although the Claimant contended that the positions were not open and available, he presented no satisfactory proof to that effect. The WCAB saw no error in that the Claimant’s record evidence did not establish his contention that the positions were not open and available.
The Claimant further argued to the Commonwealth Court that the vocational expert did not establish that the identified positions were located through a transferrable skills analysis.
The Claimant also asserted that it was error not to consider his own independent job search in the credibility process. The Employer argued that the Decision of the WCJ and the WCAB was supported by substantially competent evidence. It was noted that the vocational expert had testified that the identified positions were “just an example” [of jobs in the labor market]. It was noted that the vocational expert described the suitability of the jobs, noting that they required only a High School Diploma and that each employer was willing to train as necessary.
The Commonwealth Court noted that in the Phoenixville case it was required that jobs remain open for a reasonable amount of time to allow for a Claimant to apply for the jobs. To this end, a Claimant was to be given the opportunity to submit evidence regarding his or her experience in pursuing the jobs identified in the Labor Market Survey, but it was not the Claimant’s burden to do so.
The Commonwealth Court noted that in the recent case of Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), No. 1302 C.D. 2016, filed December 7, 2017,the employer did not offer evidence of the jobs remaining open past the discovery of those jobs, but likewise the Claimant offered no evidence that the jobs were not open and available when she applied for some of them but received no offer of employment.
Pointing to Valenta, the Commonwealth Court indicated that it was indeed the employer’s burden of proof to show that the jobs were open and available, but the Claimant could present evidence to the contrary. The Court held that “if a Claimant offers evidence about her experience in pursuing the jobs identified in a Labor Market Survey, the evidence can be considered against her in the overall evaluation of the availability of the jobs”. “Based onPhoenixville and Valenta, we hold that a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as a Claimant is afforded a reasonable opportunity to apply for them. In the absence of such evidence, earning power associated with specific positions cannot be used in the calculation of earning power under §306(b).” The Commonwealth Court emphasized that the Employer bore the burden of proof of establishing all facts entitling it to a modification of benefits, including the continued availability of the jobs identified as proof of earning power. If the Claimant presented evidence of pursuant of the jobs identified in the Labor Market Survey, that evidence can be considered on the issue and could be considered against a Claimant in an overall evaluation of the availability of the jobs.
The Commonwealth Court then discussed the concept of substantial evidence in the realm of establishing the open and available nature of the jobs identified in the Labor Market Survey. The Court stated that where there is an in-person application where information is exchanged, evidence of follow-up communications between the Claimant and a prospective employer which prompts acts or inaction by a Claimant, or evidence relating to an interview, such might constitute substantially competent evidence to establish that the jobs identified in the Labor Market Survey remained open and available through that time period. The Commonwealth Court emphasized that there must be evidence beyond mere application. Importantly, the Commonwealth Court stated that “consequently, we note the Board’s observation that Claimant only received an interview for the two (2) security guard positions with Am-Guard. Therefore, we are constrained to hold that only those two (2) positions remained opened and available underPhoenixville. It was on this basis that the Court affirmed the modification with a slight change in the partial rate. A concurring opinion by Judge McCullough joined by Judge Leavitt concurred in the result but did not considerPhoenixville Hospital to allow a Claimant’s employment applications to be used against him or her on the question of the open and available nature of the jobs. There was a dissent by Judge Cosgrove, again citing disagreement with the holding in Valenta to the extent of using the application process against the Claimant. Judge Cosgrove was of the view thatPhoenixville Hospital was being misinterpreted and considered the misapplication a taint requiring the dissent.