Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225

Earning Power

Issues: In order to demonstrate earning power pursuant to §306(b)(2), 77 P.S. 512(2) an Employer must demonstrate that there are actual and available jobs that Claimant is capable of performing.

Case Name: South Hills Health System v. WCAB (Kiefer), 1357 C.D. 2000, Sept. 12, 2002

Synopsis: FACTS In lieu of specific job referrals, Employer provided Claimant with preferential bidding rights on job postings of available positions with Employer. Postings were sent to the Claimant for five (5) months.

Employer's Personnel Manager did not establish whether any of the job postings sent to Claimant reflected jobs within Claimant's physical capabilities. The burden of response was placed upon Claimant; a posture rejected by the Workers' Compensation Judge.

Employer also engaged the services of a certified disability management specialist who identified positions at several area hospitals within Claimant's capabilities. However, none of the positions identified were open and available at the time the disability specialist conducted the earnings power assessment.

Decision: Court concluded that Employer cannot satisfy the requirements of § 306(b)(2) by sending job listings to a Claimant without any reference to Claimant's ability to perform the work. Employer never made an actual job offer for a specific employment position.

REASONING: Under the Act 57 Amendments to the Act, when seeking to modify Claimant's disability status based upon earning power, the vocational expert must base the determination of earning power on positions that are actually available at the time the job survey is being conducted.

Practice Points: Employer/Insurer must ensure that the vocational specialist, who conducts the Labor Market Survey/Earnings Power Assessment demonstrates that the jobs identified in the survey in addition to being vocationally, geographically and physically appropriate are open and available at time survey is conducted.

To meet the Employer's job offer obligation pursuant to Regulation §123-301(c), the Employer must make a specific job offer within the Employee's physical and vocational abilities.

* This person must also be on the Department of Labor and Industry's approved list of vocational experts.