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Pittsburgh, Pennsylvania 15222
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See: Motor Coils Manufacturing/WABTEC v. WCAB (Bish), 912 A.2d 212 (Pa. 12/27/06)
On December 27, 2006, the Supreme Court affirmed without opinion the Order of the Commonwealth Court.
Claimant had worked for the employer as a glass machine operator. She sustained bilateral carpal tunnel syndrome and had undergone both right-sided and left decompression surgeries. Claimant subsequently returned to light-duty work and was thereafter laid off. Employer offered "opt-out" agreements or separation packages to employees. While claimant’s husband, also an employee, accepted such package, claimant did not. Claimant’s husband then obtained work in Oklahoma and the family relocated. Several months thereafter, the employer offered claimant her previous light duty job as storeroom assistant at wages equal to or greater than her pre-injury average weekly wage.
Employer filed a Petition for Suspension based on claimant’s refusal to return to work in response to their job offer. The WCJ found claimant acted in good faith in refusing the job due to her relocation to Oklahoma. The WCAB affirmed stating that the issue was not that of good faith but concluding that the job was not available because claimant had relocated to Oklahoma.
On appeal to the Commonwealth Court, the employer argued that Kachinski standards do not apply to Section 306(b)(2) of the Act. The Commonwealth Court disagreed.
The Court cited Act 57. The Court then noted that it had issued other recent decisions including South Hills Health System v. WCAB (Kiefer) , 806 A.2d 962 (Pa. Cmwlth. 2002) and Allied Products and Services v. WCAB (Click) , 823 A.2d 284 (2003). In South Hils Health System, the Court found that the employer did not make a proper job offer when it merely sent claimant notice of an open job and thereby did not comply with Kachinski standards that an offer be communicated. In Allied Products, the Court affirmed that Kachinski standards apply in proving job offers but rejected claimant’s argument that Kachinski standards apply "in proving earning power".
Thus, where the job was not within claimant’s geographic area of residence, the job was not available.
The odd aspect of this case is employer also presented testimony from a vocational counselor regarding claimant’s earning power. However, the published case does not reference that the employer made an allegation of earning power based on expert opinion evidence and the Court does not address this issue. Thus, it appears that a different result would have been achieved if the employer did not make a job offer and instead only argued that earning power was established by way of expert opinion evidence.
Practice Pointer: Bish establishes that Kachinski standards govern the employer’s duty to make a job offer pursuant to Act 57. Thus, prior case law determining that a job must be offered within claimant’s geographic area of residence applies. Accordingly, we will argue that an employer that does not have work for claimant within his or her geographic area of residence, cannot make a job offer. Instead, we would argue that no job is available and that earning power must be established by way of expert opinion evidence. Act 57 clearly provides that "if the employee does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply."