Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits. We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.
A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA. In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer. Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.
Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced. The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer. The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.
On appeal, the Workers’ Compensation Appeal Board (“WCAB”) affirmed the decision of the WCJ. Specifically, the WCAB noted:
“We do not agree [Employer] was precluded from relying on a labor market survey. [Employer] did not have the burden of proving the nonexistence of an available position. [Employer] presented evidence, which the WCJ found credible, of an unsuccessful attempt to locate Claimant’s time-of-injury employer. Claimant did not raise the existence of a specific job vacancy that [Employer] intended to fill and that he was able to perform. Therefore, the burden never shifted to [Employer] to rebut such evidence. Reichert [v. Workers’ Compensation Appeal Board (Dollar Tree Stores), 80 A.3d 824 (Pa. Cmwlth. 2013)].”
Appeal to the Commonwealth Court of Pennsylvania was similarly unsuccessful. Like the WCAB, the Court found that the burden started with the injured worker pointing to a specific job opening with the time-of-injury employer. Only then does the burden shift to the employer to show that job is not “available.”
The law pertaining to Labor Market Surveys is contained with Section 306(b)(2) of the Act. The law states:
“If the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe.”
Both the WCAB, and the Court, have consistently held that the employer has no duty to prove the nonexistence of a job, until the injured worker can point to a specific job that is available. The Court said they were, citing prior case law, “mindful that the burden of proof may be placed on a party who must prove existence of a fact rather than on a party who must prove its nonexistence.”
While there is some logical appeal in the language the Court cites, one must examine context. As a practical matter, who stands in a better position to determine what jobs an employer has available? The employer itself, or an injured worker with no access to the records of such employer? We find it staggeringly unfair that the law expects an injured worker to be able to determine what jobs an employer has available. Especially considering how low a burden it is to simply require an employer to state that they have no suitable jobs available! With the law silent on the relative burdens, we would think the interpretation should have some basis in reality.