Jobs Need Not Be Available For Modification in PA Workers’ Comp

**Update – Appeal accepted by the Supreme Court of Pennsylvania on April 27, 2011 – Stay tuned for more details**

Years ago, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act (Known as Act 57), a workers’ comp insurance company in PA had to prove that work was actually open and available to an injured worker in order to reduce or stop the payment of workers’ compensation benefits. This was known as the “Kachinski” standard, after the Pennsylvania Supreme Court decision in Kachinski v. Workers’ Compensation Appeal Board (Vepco Constr. Co.), decided in 1987. This was discussed in previous blog entries.

One of the more dangerous additions in those changes to the Act in 1996 was the invention of the “Earning Power Assessment” (EPA)[Also known as a “Labor Market Survey” [LMS]]. The EPA, or LMS, was to take the place of actual job referrals. A vocational counselor would be hired by the workers’ comp insurance carrier to go out and find job openings, and prepare the EPA/LMS. This document was to serve as an estimate of the jobs which exist in the geographic area in which the injured worker resides.

A question left open since the invention of the EPA/LMS was the impact of whether the job was actually available to the injured worker. A recent case before the Commonwealth Court of Pennsylvania, Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), addressed this very issue.

In that case, a vocational counselor located five jobs that were open as of the date he found them, and he prepared the EPA/LMS. The injured worker received the EPA/LMS several weeks later and immediately applied for all of the jobs. The injured worker received no offers of employment from any of the five jobs. The Workers’ Compensation Judge (WCJ) found the IME doctor and the workers’ comp insurance carrier’s vocational counselor credible, but denied the Petition to Modify, because the applications made by the injured worker showed the jobs were not available to her. The Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of Pennsylvania, however, reversed the decision of the WCJ, and granted the Petition to Modify. The Court found that an EPA/LMS is just an estimate of earnings. The fact the jobs were not open weeks later, when the injured worker applied, is irrelevant. Other, similar, jobs, said the Court, would replace those that were then filled.

Also, the injured worker failed to look for employment on her own, outside of those jobs in the EPA/LMS. Therefore, the Court found that the injured worker could not rebut the fact that jobs were open and available to her at the time the EPA/LMS was created.

The one good thing in the decision is contained within Footnote 12. There, the Court noted that one position identified in the EPA/LMS was still open and available when the injured worker applied. The injured worker did not get a job offer as a result of her application. The Court admitted that this position was not “available” to the injured worker, and could not form the basis of a Modification Petition.

Overall, this decision highlights the importance of having an experienced PA workers’ compensation attorney on your side BEFORE there is any litigation. Timing is critical in cases like these, and passage of time is something an attorney may not be able to fix once it happens. Once the Petition to Modify is filed by the workers’ comp insurance carrier, it may be too late to prevent a bad decision.