Employers Are Being Told To Establish "The Non-Existence Of Available Work" For Claimants Before Pursuing A Labor Market Survey In Order To End Workers' Compensation Benefits

By: Jeffrey M. Seyfried

Under Section 306 (b)(2) of the Pennsylvania Workers' Compensation Act, "if the employer has a specific job vacancy the employee is capable of performing, the employer shall offer such job to the employee." In 2004, the Commonwealth Court specifically held that the statute "does not require employer to prove the nonexistence" of an appropriate position. Burrell v. WCAB (Philadelphia Gas Works), 849 A.2d 1282 (Pa. Cmwlth. 2004). However, the Court recently revisited this issue and has arguably changed its position. The Court has now indicated that its decision in Burrell is limited to cases where a claimant has actually obtained other employment and does not apply to cases where the employer is seeking a modification or suspension of benefits based upon an earning capacity assessment. Rosenberg v. WCAB (Pike County), No. 17 C.D. 2007 (Pa. Cmwlth., February 5, 2008)

In Rosenberg, the claimant suffered a work related injury to her right knee, from which she did not fully recover. Claimant returned to a light duty clerical position with the pre-injury employer for a period of approximately 10 months. At the conclusion of the 10 month period, the employer sent correspondence to the claimant indicating that the employer did not have a policy which allowed for "permanent light duty" and therefore terminated her employment. The employer subsequently filed a Petition for Modification based upon a Labor Market Survey. During the course of litigation, the letter to the claimant indicating that "no permanent light duty" was admitted into evidence and Claimant testified that following her termination, another employee was hired to replace her. The Workers' Compensation Judge granted the Petition for Modification finding that under Burrell, there was no requirement that the employer prove the "non-existence" of appropriate positions. The Board affirmed. On appeal, the Commonwealth Court noted that Burrell did not stand for the proposition that in all

earning capacity cases employers were relieved "from proving the lack of suitable positions." Rather, the Court noted that Burrell was limited to cases "where a claimant obtains other employment." Ultimately, the Court remanded the matter to the Workers' Compensation Judge to make findings with respect to the conflict between Claimant's testimony that another employee was hired to replace her and the employer's evidence that "no permanent light duty" was available.

A few days after the publication of Rosenberg, this author was involved in several cases in which the Workers' Compensation Judges specifically indicated that the decision stands for the proposition that in all cases dealing with earning capacity assessments, employers have the affirmative burden of proving that there are no appropriate positions available with the pre-injury employer. However, a clear reading of Rosenberg indicates that this type of application is overly broad and places an additional burden of proof on employers that was clearly unintended by the Commonwealth Court. The majority opinion outright rejected a broad application noting that "once the issue [of available work] is raised with evidence" the burden of proof is on the employer. This simply means that IF there is evidence submitted which indicates there is a controversy centered around the availability of appropriate positions, it is the employer's burden of proof to establish non-availability of work. Until Workers' Compensation Judges universally accept this reading of the case, we are recommending that employers offer evidence that establishes "the non-existence of available work," in order to proceed in the earning power assessment cases.

About the Author: Jeffrey M. Seyfried (610-782-4958, seyfriedj@whiteandwilliams.com) is an associate in the Workers’ Compensation Group and practices from our Allentown office.