In Smith v. W.C.A.B., 2018 WL 296840 (January 5, 2018), the Commonwealth Court clarified the employer’s burden of proof with respect to petitions to modify benefits based on a labor market survey. In this case, The Workers’ Compensation Judge, (WCJ), granted the employer’s petition to modify claimant’s benefits based on a labor market survey showing five available positions within claimant’s medical restrictions with an average pay of $400.56. Claimant testified that he applied for the five jobs and received interviews for 2 security guard positions which he did not get. He never received any response from the other three applications. The Workers’ Compensation Appeal Board, (W.C.A.B.), held that the employer had the burden of proving only that the five positions were open and available to claimant at the time of the labor market survey. The vocational counselor testified that they were open, and the WCJ found no evidence in the record that they were not open at the time of claimant’s application. Thus, the WCJ granted employer’s petition, and the Appeal Board affirmed.
The Commonwealth Court held that, based on Phoenixville Hospital v. W.C.A.B., 623 Pa. 25, 81 A.3d 830 (2013), the employer is required to establish the existence of substantial gainful employment that is compatible with the claimant’s residual productive skills, education, age, and work experience, and that the jobs remained open for a reasonable amount of time for claimant to apply for them. The court also held that claimant must also be given an opportunity to submit evidence regarding her or his experience in pursuing the identified jobs, but that claimant is not required to do so. In Valenta v. W.C.A.B., 2017 WL 6043509, (December 7, 2017), the Commonwealth Court held that the employee’s testimony concerning their experience applying for jobs can be used against them.
Here, the court found that claimant’s testimony that he received interviews for two security jobs was sufficient proof that the jobs were open and available at the time he applied. However, evidence that claimant mailed applications to the remaining three jobs with no response was not sufficient proof that they remained open and available. The court also clarified that that claimant does not have the burden of proving that all five jobs were not open. The employer bears the burden of proving the continued availability of the jobs.
The Commonwealth Court held that there was sufficient proof, based on claimant’s testimony, only that the two security jobs were open and available, but there was not sufficient proof that the remaining three jobs remained open and available. Thus the court granted the employer’s modification petition based on the average wage of the two security jobs, $386.00 per week.
Before Mary Hannah Leavitt, P.J., Renee Cohn Jubelierer, J.; Robert Simpson, J.; Kevin Brobson, J., McCullough, J.; Wojcik, J., and Joseph Cosgove,J. Opinion by Simpson. President Judge Leavitt, joined in the opinion. Concurring opinion by Judge McCollough; and Judge Cosgrove filed a dissenting opinion.
Judges McCoullough and Cosgrove both disagreed with the majority’s position that claimant’s testimony can be used against them.