State News : Pennsylvania

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By: Jeffrey D. Snyder  Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), 1302 C.D. 2016 – Filed December 7, 2017, Pennsylvania Commonwealth Court


            In this case of first impression, the Commonwealth Court affirmed the Decision of a Workers’ Compensation Judge which modified benefits based on an Earning Capacity Assessment.

            The work injury in question was sustained on October 2, 2010 in the nature of aggravation of a pre-existing calcific tendonitis with chronic tendopathy of the left shoulder, disc herniations at C5-6 and C6-7 with radiculopathy, a left trapezius strain, left medial scapula strain, and a left posterior shoulder strain. 

           The noted Earning Capacity Assessment identified six jobs and via the Assessment provided notice of those jobs to the claimant/attorney. The Court described the jobs in some detail, noting that per the Claimant, she attempted to apply for all six (6) positions but was not offered any of them.  The claimant took issue as well regarding the suitability of the jobs – there was expert medical and expert vocational testimony on both sides.

         The Workers’ Compensation Judge made credibility determinations that accepted the testimony of the defense medical expert as well as that of the defense vocational expert.  The Claimant appealed to the Workers’ Compensation Appeal Board, arguing that the six (6) jobs should not be considered actually open and available if the Claimant tried to apply for them and was unsuccessful in receiving a job offer.  The Appeal Board rejected that argument, pursuant toPhoenixville Hospital v. WCAB (Shoap), 81 A.3d 830 (Pa., 2013) which essentially requires that identified jobs be open and available at the time of the issuance of an Earning Capacity Assessment.  The Claimant argued on Appeal to the Commonwealth Court that the jobs were not actually open to her, the Claimant, when she applied for the jobs and therefore the Workers’ Compensation Judge should not have used the standard set-forth in Phoenixville Hospital.

            The Commonwealth Court considered this  a case of first impression regarding the rights of Claimants and Employers under §306(b) of the Act after the Pennsylvania Supreme Court’s Decision inPhoenixville Hospital.  The Claimant was argued that if she applied for a position listed on the Earning Capacity Assessment but did not get the job, the Employer had not proven earning capacity and so modification must be denied.  The Employer argued that a Claimant’s testimony that she applied unsuccessfully to the position is relevant but not dispositive, that is that the Workers’ Compensation Judge could accept evidence of the Claimant’s unsuccessful application but was not bound by such evidence to reject the earning capacity found in the Earning Capacity Assessment. 

            The Commonwealth Court noted that §306(b) of the Act does not require that the Claimant be offered a job, merely that the Employer prove the existence of meaningful employment opportunities and not a simple identification of jobs found in want ads or employment listings.  The Court viewed this matter as one of credibility, not sufficiency of the evidence.  The Court noted that one possible exception to the credibility process might be such where a job was filled before notice of it was given to a Claimant via an Earning Capacity Assessment - in that case it would not “exist”.  In other words, the jobs must be open and available at the time of the issuance of the Labor Market Survey/Earning Capacity Assessment to the Claimant/counsel: “We reject Claimant’s argument that the mere presentation of evidence of unsuccessful application to jobs listed in a LMS/EPA mandated a finding that the positions were not open and available and that she lacked any earning capacity.  Rather, as our Supreme Court stated inPhoenixville Hospital, such evidence from Claimant was ‘relevant’ but not ‘dispositive’ with regard to the earning power inquiry, 81 A.3rd at 846.” 

            The take away from this case of  “first impression” is that the Claimant’s application and failure to secure employment relative to jobs identified in the Earning Capacity Assessment is simply one facet of multi-faceted litigation that includes broad discretion as to findings of credibility in Earning Capacity Assessment cases.