An Employer may Petition to Modify total disability benefits to a partial disability benefit, based upon work available to the injured worker, within their vocational and physical capabilities.
A Modification may be based upon an actual job offer.
The Pennsylvania Supreme Court decision in Kachinski v. WCAB (Vepco Construction Co.)
(Pa. 1987) sets forth that criteria.
A Modification may be based upon Vocational Expert witness testimony and evidence of the post-injury earning capacity of the injured worker, without an actual job referral.
This remedy is authorized by the 1996 amendment to Section 306(b)(2).
However, before the Employer may pursue a modification based upon a Vocational Expert Labor Market Survey and Earning Power Assessment evidence, the Employer must make a job offer to the employee, where there is a job available that the employee could perform.
The Employer "Job Offer Obligation" is spelled out in Regulation 123.301:
b. The time frame for the Employer obligation commences with the filing of the LIBC 757 Notice of Ability to Return to Work form and ends after 30 days or with the filing of the Modification petition, whichever is longer.
c. The Employer meets its obligation if they show:
i. the employee was notified of a job vacancy and failed to respond.
ii. a specific vacancy was offered to employee and employee refused.
iii. the employer offered a modified job to employee and employee refused.
iv. No job vacancy exists with Employer within the Employee usual employment area.
d. When the Employer has more than one position available the Employer has the right to select the job to be offered.
e. job offers are made consistent with the Employer's usual business practice or collective bargaining agreement.
f. If the Employer presents evidence that they have no job vacancy, the Employee may present
rebuttal evidence by demonstrating, [during the job offer obligation time period]:
1. the Employer was actively recruiting for a specific job the employee could perform.
2. the Employer posted or announced the existence of a specific job which the employer intends to fill.
g. A job may not be considered vacant if the employee's ability to fill the position was precluded by any applicable collective bargaining agreement.
This last provision was recently addressed by the Commonwealth Court in an unreported panel decision at: Seador v. WCAB (United Parcel Service) authored by Judge Cohn-Jubelirer at No. 1704 C.D. 2012, on April 25, 2013.
The Employer in Seador filed a Modification petition based upon a Vocational Expert Labor Market Survey and Earning Power Assessment Report.
The Workers Compensation Judge granted the modification.
The WCAB affirmed.
On Appeal, Employee argued, he was capable of full duty and employer did not demonstrate that he could not perform job available at their facility. This argument was rejected, as the WCJ finding of a work limitation of 50 lbs was supported by substantial medical evidence.
Employee argued there was work available at the employer's facility, which he could perform.
This argument was rejected.
Employer's witness testified that the union contract requires that all employees are capable of a 70 lbs lifting requirement. This is an essential function of all positions, as the employer may "pull" employees from one position to another, in order to keep operations moving and on schedule.
The WCJ found this testimony was credible.
The Modification based upon Vocational Expert evidence was appropriate and affirmed.
1. Designate the vocational expert as the party responsible for monitoring the employer job availability during the appropriate time frame.
2. If a position is available within the claimant's physical and vocational capabilities, there must be a job offer. If you do not make a job offer, the employee may defeat your Earning Power Modification petition.
3. Where there are multiple jobs available, consider making alternative job offers.
4. If no jobs are available, document that fact by an affidavit of the employer representative.