Friday, February 15, 2013

Employee Rebuttal Evidence to Vocational Expert Report

Since 1996 the Pa Workers' Compensation Act has provided Employers with a remedy for Modification of Employee total disability benefits based upon Vocational expert evidence.

A vocational expert earning power assessment of the Employee post-injury earning capacity could be sufficient to support an order of modification. In lieu of the actual "job offer" letter required by the Pa. Supreme court Kachinski 4-prong standard, a vocational expert could perform a labor market survey to formulate an opinion of the employee post-injury earning capacity.
A job would need to be "available" in the employee geographic area and suitable educationally, vocationally and medically. TheWCJ would assess the credibility of evidence.

Employee rebuttal evidence in a Kachinski job offer case included testimony that he/she applied for the available position and was not hired, therefore it could not be a basis for modification of benefits.

In the earning power assessment remedy, employees' have produced similar "application" evidence but post-hoc application to jobs in an earning power assessment report, would not defeat a modification based upon this "available" employment. See: Phoenixville Hospital, Pa. Cmwlth. 2010.

Employee rebuttal evidence has included vocational expert testimony as to the shortcomings of the Employer vocational evidence.

Annville Township v. WCAB (Hutchinson) addresses these issues in an unreported panel decision of the Pa. Commonwealth Court, authored by Judge McCullough,
at No. 716 C.D. 2012 on February 7, 2013

Factual & Procedural Background

June 29, 2006 leg leg injury
December 24, 2008 date work was alleged available
January 22, 2009 Employer Petition for Modification
February 23, 2010 WCJ decision
 Employer appeal denial of modification
WCAB remand to clarify inconsistent findings re voc witness credibility
February 7, 2011 WCJ decision  deny modification
WCAB affirm denial
Commonwealth Court appeal by Employer

Employer Vocational and Medical Evidence
Employer medical evidence included IME report of Dr. Cooper with sedentary work restrictions based upon residual permanent limited range of motion, swelling, with chronic pain.
Left leg injury limited standing, walking and driving. Squat, kneel, crawl was prohibited.

Dr. Goodspeed testified regarding Employee history of a complex closed tibial plateau fracture with reconstructive surgeries. He could not provide work capabilities without a functional capacity test.

Employer vocational expert Mary Hess interviewed Employee and relied upon the physical capacity recommendations of Dr. Cooper. She identified 8 employment positions she believed to be within Employee's vocational and physical capabilities. She completed 4 job analysis forms which were reviewed and approved by Drs. Cooper and Goodspeed (although Goodspeed did not recall).

Employee evidence
Employee testified regarding his left leg injury with 12 surgeries.
He consumed pain medications. His sleep was compromised.
He was not a high school grad.
He applied for 7 of 8 jobs in the labor market survey and was not offered work. The 8th online application for a security guard job closed when he indicated walk/standing limitations.

Employee did not present a medical expert.

Employee vocational expert was Maria Babinetz. She did not conduct her own labor market survey. (one of my pet peeves). She testified regarding employee's medications and lack of sleep would impact his ability to work on a sustained basis.
She visited Wal-Mart and stated no stool was provided. The greeter would need to mop and lift items on occasion. She stated these duties would place this job beyond his medical restrictions.
She visited KMart and stated the cashiers were required to stand which conflicted with his medical restrictions.
Also she believed his medication side effects would prevent him from performing these jobs.
He was not vocationally qualified for 2 customer service positions.
Apparently Employer conceded Employee was not qualified for 2 security positions.

[ Remember the medical witnesses approved these job descriptions, as written, without this additional

WCJ 1st decision found Hess was credible that Employee could perform the jobs.
WCJ found Employee credible he could not perform the jobs because of meds and sleep
WCJ found Babinetz credible Employee could not perform jobs.
WCJ acknowledged MD's approved the jobs BUT Employee evidence was sufficient to establish he lacks an earning capacity based upon his physical restrictions, education and voc experience.
WCAB remand to eliminate inconsistency regarding credibility determinations.
WCJ 2nd decision found Employee and Babinetz credible he was unable to perform the jobs, on a physical and vocational basis.
WCAB affirm denial of modification.

Commonwealth Court

Employer argued:

(1) that Employee failed to rebut the testimony of Hess that he could perform the job duties.
(2) WCJ erred in rely upon Employee self-serving testimony that he could not work,
(3) Babinetz testimony was an unqualified medical opinion.

(1) Court held World Kitchen decision was not controlling. When an employer meets its burden of proof for modification via medical evidence, the worker's subjective belief about her work capabilities were insufficient to rebut employer evidence.

(2) Employee challenged the vocational appropriateness of jobs, NOT the medical restrictions/releases. In challenging the jobs, employee relied upon voc expert Babinetz, in addition to his testimony.

(3) Babinetz do not offer a medical opinion. She testified the job duties were not accurately described in the job analysis reviewed by the MD's. Employee did not have the educational or vocational skills needed for the jobs. Based upon her personal observations she stated the Wal-Mart and KMart job duties were not within the medical restrictions. This was the type of information that voc experts normally review and rely upon.

Practice Pointers:

A. Vocational Evidence. This case illustrates the difficulty with finding a "perfect match" between the medical and vocational evidence. Often a job description is prepared based upon one employer
contact and the opposing expert may have a different source of information.
Small details may not be disclosed or addressed to the voc expert. These small details may defeat the well planned litigation. This type of employee rebuttal was the hallmark of the Kachinski job placement era. Many believed we would not return to this level of rebuttal in the labor market  
survey evidence. We need to utilize the past lessons in vocational expert testimony regarding the
amount of detail necessary to establish a convincing case.
B. Typically my recommendation is to rely upon a limited number of positions within the labor market survey and plan a more thorough review of 4 or so positions. Here, it appeared Employer had a similar strategy. This decision illustrates the difficulty of prevailing in litigation, when the
employee is found "credible" even when one believes there is a well planned case for

C. One Kachinski strategy was to depose the actual employer rep regarding the work requirements... not that I am advocating a return to the Kachinski era of vocational evidence.
IMO the labor market survey is to establish that employment is available in one's area and within the
physical and vocational capabilities, as estqblished by voc expert testimony.             
 IMO the claimant "application" is not envisioned, authorized by the statue or relevant.

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