Wednesday, January 8, 2014

The Employer's "job offer obligation" and Vocational Expert Evidence

The Employer has a "job offer obligation" as a precursor to the Modification based upon a Vocational Expert Earning Power Assessment.

Prior to the 1996 Amendments to the Pennsylvania Workers' Compensation Act, an Employer could seek a modification of indemnity wage loss benefit payments via an actual job offer to an injured Employee.  
An employer had to produce evidence of  referral(s) of employee to a then-open job, that fit the occupational category, for which the employee received medical clearance. See: Kachinski v. WCAB (Vepco Construction Company) (Pa. 1987).

In 1996, Section 306(b)(2) of the Act was amended to allow modification of indemnity wage loss benefits based upon a Vocation Expert report of the Earning Power Assessment of the injured Employee.

For over 17 years, many workers' compensation professionals believed that the post-injury earning capacity was to be based upon vocational expert opinion evidence. This supposition was based upon the Legislative amendment, that contained this specific unambiguous language:
      " Earning power shall be determined by the work the employee is capable of performing
        and shall be based upon expert opinion evidence...".

Recently the Pennsylvania Supreme Court interpreted this statutory language to require consideration of the employee's opportunity and effort to seek and apply to job positions included in the Vocational Expert opinion evidence. See: Phoenixville Hospital v. WCAB ( Pa. November 21, 2013).
[See: PaWCdefense entry at December 9, 2013].

Reichert v. WCAB (Dollar Tree Stores) No. 42 C.D.2013, is a recently reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Brobson on November 8, 2013 ...
just a few weeks before the Supreme Court decision in Phoenixville Hospital.
[Reichert Application for Reargument before the Commonwealth Court was denied January 3, 2014].

Th Commonwealth Court decision in Reichert looked at the Employer's obligation to offer a job position to an injured worker, in the context of the Employer pursuing a modification remedy based upon a Vocational Expert Earning Power Assessment.

Factual and Procedural Background
Employee suffered a work injury in 2001.
About 8 years later, the Employer filed a Modification petition in March 2009, which alleged work was generally available to this Employee within his vocational and physical capabilities.

Employer Medical Evidence
This petition was based upon the medical expert opinion testimony of David Baker M.D. that employee was capable of performing work within a light duty capacity.
 [generally, lifting of 1-10 lbs frequently; 11-20 lbs occasionally].

Employer Vocational Expert Evidence
John W. Dieckman provided Vocational Expert opinion evidence on behalf of the Employer.
Dieckman stated that he conducted a vocational interview with Employee. He typically will contact the Employer after this interview to determine IF a job offer is possible or feasible with the Employer.

In this case, a representative of Specialty Risk Services, the insurance Third Party Administrator (TPA) for Employer advised Dieckman that Employer was not able to offer employment, consistent with Employee's physical limitations.

Based upon this information from the TPA, he conducted a labor market survey (LMS), in preparation of his Earning Power Assessment (EPA) of Employee. He prepared vocational analysis of 11 job positions, which were reviewed and approved by Dr. Baker.

On cross-examination, Dieckman admitted he did not directly speak with Employer regarding any possible job openings prior to conducting his LMS. He only spoke with the TPA to assess job availability with the Employer. [not a "best practice"].

Employer Supervisor Testimony
Gerald Joka, the Employer's District Manager for 8 years, testified he is in charge of sales, hiring, firing, "pretty much everything to do" with 10 local stores in his district.

He is routinely aware of available, open positions within his 10 stores and he generally described available positions within the retail stores to include: cashiers, stockers, assistant managers, managers, district managers.

Joka testified ALL of these positions are going to require a lot of physical movement.
There is very little "office" work.

Open positions are advertised through a computer based system, which allows on-line applications.
[did this Employee apply to any positions?].

Joka testified he reviewed Dr. Baker's report and the physical restrictions upon Employee.
He stated the Employer did not have ANY open positions-
* from July 28, 2008 ( the date of the LIBC Notice of Ability to Return-to-Work form)
*until March 10, 2009 (the date after the Modification petition was  filed)
- that could have comported with Dr. Baker's "extreme" physical limitations for Employee.

[*note:  this mirrors the time frame of the employer's job offer obligations as per Regulation 123.301 (b).].

On cross examination, Joka admitted no one asked him to look for a job for this Employee and he was never contacted by the vocational Expert.

Employee Vocational Expert  Evidence
Gary A. Young testified on behalf of Employee that all of the jobs in the Dieckman labor market survey were not appropriate for Employee.

Young opined Dieckman has a "mandatory" duty to contact Employer regarding any open and available positions in Employer's retail stores, prior to conducting the labor market survey.

Young testified there were 56 Employer retail locations (within a 50 mile radius of Employee's residence) to illustrate that Joka's testimony regarding positions "open and available" was limited to the 10 stores he supervised, rather than all of the Employer's locations.

Young testified "at the time of my evaluation", the Employer was actively recruiting for workers in various areas.[a rather non-specific assertion!].

On cross-exam Young admitted the Employer website did not list any specific jobs.
Young conceded that Employee likely would NOT be capable of driving a 50 mile radius.
[good cross!].

WCJ Decision in Employer Modification Petition.

Employer witness Joka was credible:
(i) all of Employer's jobs require physical activity
(ii) Employer has a return-to-work program for injured workers, but Dr. Baker's physical limitations upon Employee were too extreme,
(iii) he did not have a job position to offer Employee within Dr. Baker's restrictions,
(iv) Joka was aware of the physical demands of the jobs within Employers stores, Joka was aware how jobs may be modified, yet the Employer jobs did not to fit Employee's restrictions.

Accordingly, there were NO open positions with Employer during the timeframe of Employer's job offer obligations.

Employer Vocational Expert Dieckman was credible.
Employee Vocational Expert Testimony was not credible.
Young did not record any of his communications or contacts with various employers (in the LMS/EPA).

Young contacted these Prospective Employers after the LMS was complete and much after the jobs were identified as being available.  
[the Phoenixville Hospital issue!].

Young did not visit the Employer website until April 22-29 of 2009.
- AFTER the Modification Petition was filed!
Filing the Petition, concludes the time period of the Employer's job offer obligation!
See: Regulation 123.301 (b)

Young implied Employer could have offered a job to Employee.
BUT, Young conceded on cross, he did not know which positions employer was recruiting for
and he did not know the locations of those jobs.
[ ... again, good cross-exam ... poor rebuttal evidence].

Commonwealth Court Appeal of Employee
Employee argued Employer did not meet its prima facie burden of proof.
Employer failed to establish the absence of open and available positions at Employer's retail stores.
[? Employer burden is to prove a negative?]

Employer Vocational Expert failed to contact the Employer to determine if Employer had any open and available positions for employee PRIOR to conducting the LMS/EPA.
On this basis, Employee argued Employer violated the requirements of Section 306(b)(2) and Regulation 123.310. As a result, the LMS must be declared void ab initio.

Commonwealth Court Decision
Modification Affirmed!
The Court explained the elements of Employer's burden of proof and the Employee's right to submit evidence.

1. The Employer does not have the burden of proving the non-existence of available work at its facility as a necessary element of the Modification Petition.
citing Rosenberg (Pa. Cmwlth. 2008) and Kleinhagen (Pa. Cmwlth. 2010).

2. To the contrary, Employee may present evidence that during the period of the Employer's job offer obligation, that Employer had a specific job vacancy it intended to fill which employee was capable of performing.

3. Upon presentation of Employee's  evidence, the burden of proof shifts to Employer to rebut employee's evidence.

4. Here Employer's witness Joka provided undisputed credible testimony of the job demands of Employer's positions and the absence of any available positions within Employee's limitations.

5. Employee may rebut the testimony regarding the availability of positions with Employer...
by demonstrating:
(i) during the period in which employer has a duty to offer a specific job,
(ii) employer is or was actively recruiting for a specific job vacancy,
(iii) that employee is capable of performing, or
(iv) employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing,
(v) which employer intends to fill.

[see: Regulation 123.301(f)].

Here, Employee did not establish by (credible) evidence that Employer was actively recruiting for a specific job vacancy or the Employer posted the existence of a specific job vacancy. 

Employee did not rebut Employer's testimony with the non-credible testimony of his vocational expert.

In dicta, the Court notes that Employer's Vocational Expert was not required to contact Employer prior to conducting the LMS/EPA, to determine if there were open and available positions Employee was capable of performing

in my opinion, best practices would dictate otherwise.

1. It remains my recommendation to have the Vocational Expert "quarterback" the LMS/EPA process, meaning, the Vocational Expert should:

(a) identify an appropriate employer contact for these job availability issues,

(b) contact the employer immediately, upon assignment of the vocational referral as the "employer job offer obligation" commences with the filing of the LIBC 757 "Notice of Ability to Return to Work",

(c) continue periodic contact with the employer rep during the LMS/EPA preparations,

(d) contact the employer rep immediately before the petition is filed... which may be a date after the completion of the LMS/EPA.

These recommendations serve to limit the prospects that the time, effort and expense of a LMS/EPA may be inadvertently defeated by the Employer's job advertising or recruitment efforts, which are efforts that are typically separate and apart from the work comp case litigation efforts. 
These 2 worlds may collide and create an adverse result.

Through communication, the parties working on behalf of the Employer may increase the opportunities for a successful litigation (or negotiated settlement) result.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.