Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225

EMPLOYER MUST ESTABLISH IT HAD NO POSITIONS AVAILABLE WITHIN CLAIMANT’S ABILITIES AS A PREREQUISITE TO MODIFICATION

See: Rosenberg v WCAB (Pike County) 942 A.2d 45(Pa Cmwlth 2/5/08)

Claimant sustained a work injury in January 2002 to her right knee. Subsequently, she returned to light duty work. She continued such work for approximately ten months when she was terminated by her employer effective 1-17-03. Claimant testified she was replaced by a newly hired person. Claimant looked for work else where and located part time employment.

In January 2003, employer filed a Petition for Modification based on earning power assessment. The WCJ granted such Petition.

Claimant appealed raising various issues including arguing that the WCJ erred in failing to make a finding regarding available employment. The WCAB remanded the case to the WCJ noting that the rehabilitation counselor had testified that he was not aware whether the employer had modified work. On remand, the WCJ relied on employer’s letter of termination to Claimant concluding that the employer met its burden and established no employment. Claimant again filed an appeal.

The Commonwealth Court first addressed the issue of whether employer was required to prove it had no positions available within Claimant’s abilities during the relevant period. The Court reviewed case law, the Act and regulations. The Court cited Burrell v. WCAB (Philadelphia Gas Works CompServices Inc.) 849 A.2d 1282 (Pa Cmwlth 2004).

In Burrell, the Court affirmed modification of benefits based on surveillance showing the Claimant working at a new job and on an expert’s opinion as to the pay rates for the work he was performing. Under those circumstances, the Court rejected Claimant’s argument that the employer was required to first prove it had no position available. The Court further stated in Burrell “However, we need not decide whether existence of a specific, available position with an employer is part of its burden in other modification circumstances. Rather, we hold that where a Claimant unilaterally demonstrates residual productive skill, an employer need not address existence of positions it may have as part of its case in chief. As previously mentioned, a Claimant is always free to inquire into this area as a defense to modification.”

The Court then acknowledged the instant case involved a different factual situation. The Court explained that after the employer submitted its evidence, Claimant offered evidence of a suitable position available with the employer wherein she testified that another person was hired to replace her. The Court noted this testimony was not contradicted and raised the defense that the position the Claimant was actually performing was available for her continuing employment at the time she was terminated.

The Court emphasized the Section 306 (b)(2) of the Act speaks of mandatory language regarding this point: “If the employer has a specific job vacancy employee is capable of performing, the employer shall offer such job to the employee.” The Court noted the burden of proof may be placed on a party who must prove existence of a fact rather than a party that must prove nonexistence. Thus, the Court noted that where the issue is raised the employer ignores the question at its peril. “Once the issue is raised with evidence satisfaction of this element of proof is a prerequisite to employer’s reliance on expert testimony of earning power.”

The Court correctly noted that the duty to make a job offer commenced in November 2002 with the filing of the Notice of Ability to Return to Work Form and lasted through July 2003 with the filing of the Petition for Modification. Where the rehab counselor was unable to address the issue and Claimant’s evidence did raise the issue, the Court concluded that the Judge should have made sufficient findings of fact and given a reason for rejecting Claimant’s evidence there was suitable employment available with the employer. While the WCJ was free to accept evidence in the face of conflicting evidence, he must explain why he does so and failed to reference the uncontroverted evidence. Accordingly, the Court vacated the Judge’s Decision and remanded to the Judge with instruction to address the conflicting evidence of suitable work available with the employer as well as address proof of Claimant’s residual productive skill.

Practice Pointer: Be aware that the duty to offer Claimant work within his or her restrictions commences with the filing of LIBC 757 and continues until Petition for Modification is filed. The employer should be notified of their duty. It is suggested that you request that the employer complete an affidavit or statement regarding the fact that they have no work. The employer should be instructed to keep track of all job openings in order to prove there is no work within Claimant’s restrictions. This includes advertisements, job postings and job offers made during the relevant period.

While the Court in Rosenberg clarifies that employer’s duty to make a job offer is a prerequisite for a Petition for Modification based on earning power, there is still some ambiguity. This is where the Court notes that the Judge should also consider proof of residual productive skills. The Court is attempting to distinguish Burrell. Burrell does appear easily distinguishable. In Burrell, surveillance demonstrated Claimant was working and the employer was forced to prove earnings through a labor markets survey establishing earnings for the type of work Claimant was found to be doing.

There also remains a question as to whether a Claimant’s retirement would relieve an employer from its duty of establishing available work.