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.
Granted!

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

ALTHOUGH THE COURT NOTES THE VOC EXPERT WAS NOT REQUIRED TO CONTACT THE EMPLOYER, PRIOR TO CONDUCTING THE EPA/LMS, 
in my opinion, best practices would dictate otherwise.

PRACTICE POINTERS:
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.

New Maximum Pennsylvania Workers' Compensation Rate for 2014

New Maximum Pennsylvania Workers' Compensation Wage Loss Benefit rates for 2014.

The Department of Labor and Industry of Pennsylvania, Bureau of Workers" Compensation has announced a Maximum wage loss benefit rate of $932.00 for any work injury occurring on or after January 1, 2014.

Employees earning  $1,398.01 or more, will be entitled to this weekly total disability rate (TTD).

Employees earning between $699.01 and $1,398.00 a week, will be entitled to a TTD rate at 66 2/3% of their average weekly wage.

Employees earning between $517.78 and 699.00 a week, will be entitled to a TTD rate of $466.00 per week

Employees earning $517.77 or less will be entitled to a TTD rate based upon 90% of their average weekly wage.

For purposes of calculating the update to payments for medical treatments rendered on and after January 1, 2014, the percentage increase in the Statewide Average Weekly Wage is 1.6%

Can you Correct "Mistaken" Work Comp Benefit Payments?

The number of documents created and reviewed in the Pennsylvania Workers' Compensation system is voluminous. At times, errors occur in the processing and payment of wage loss benefits. [Let's leave discussion of medical expenses for another day].

Under-payment of benefits may be readily corrected by the issuance of an "amended" Supplemental Agreement, LIBC 337. Statutory interest is due on any delayed payment.
See: Section 406.1

"Over-payments" of benefits may be voluntarily corrected, by agreement of the parties. A Supplemental Agreement should be executed to memorialize this benefit change.

What does one do, when the Employee has been over-paid, and will not voluntarily agree to a benefit correction and repayment/credit payment?
File a Petition to Review Benefit Payments.

Commonwealth of PA/Department of Transportation v. WCAB (Noll), No. 819 C.D. 2013 & No. 907 C.D. 2013, is a reported decision of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on November 6, 2013, which addressed a benefit overpayment issue.

Factual and Procedural history
There were a series of compensation agreements and petitions which ultimately led to the scenario where benefits were overpaid to Employee.
These facts bear repeating, as they illustrate a manner in which benefit payment status may become confused, over the course of extended claims handling and multiple decisions.

June 1995 injury accepted by agreement.
AWW $863.84; TTD rate $509.
5 weeks disability followed by Suspension upon return-to-work with restrictions.
August 1997, Employee discharged, grievance filed, return-to-work at another position, lower salary.
July 1999 injury described as a "recurrence" 1995 injury.
Supplemental Agreement paid TTD at a new rate of $433.50 [not $509].
August 1999 return-to-work, modified duty position.(same rate of pay, suspension?)

June 2000, work no longer available, TTD reinstated by agreement, at the $433.50 rate!
*********************************************************************************

Employee filed a Petition for Review, arguing the Reinstated Benefits should be at 1995 rate, $509.
WCJ Decision March 2002
WCJ agrees with Employee,

(1) orders payment of $509 rate commencing June 2000.

(2) Unreasonable Contest quantum meruit fees were awarded,
"20% of all past due and owning benefits directed to claimant's counsel, not deducted from claimants proceeds".

(3) WCJ approved the contingent attorney fee agreement "to deduct 20% of the claimant's benefits and pay them directly to counsel".

Employer appealed, WCAB Affirmed.
*********************************************************************************

OK. Let's recap for a moment.
Paragraph (2) specifically states "past" benefits.
Paragraph (3) does not say "future" benefits ... so it may be mildly vague ... but it is not inconsistent with 2.

December 2004 Employer files Termination and Suspension petitions.

WCJ Decision March 2006
WCJ denies both petitions.
WCJ approved the 20% contingent attorney fee agreement, directing Employer to pay:
 "reasonable counsel fees and litigation costs".
The WCJ did not make any findings of an unreasonable contest and Employee counsel did not submit a quantum meruit attorney fee exhibit in this portion of this case.
*********************************************************************************

April 2010 Employer files the instant REVIEW Petition.
Apparently Employer made an overpayment to Employee by paying a full TTD rate of $509 per week without any attorney fee deduction from March 2004 to December 2009.
Employer also paid a 20% attorney fee to Employee counsel of $101.80 which resulted in this overpayment.
The overpayment was $30,540.

The 20% attorney fee deduction should have been  $101.80 per week.
Employee net benefit rate should have been $407.20.

WCJ Decision December 2010 in Employer Review Petition
Employer submitted computer printout documenting payments.
Employee counsel argues: 
(1) it was not an overpayment, as the WCJ ordered 20% to be paid in addition to claimant benefit!
(2) if it was an overpayment, it was a Employer's unilateral mistake and cannot be recovered!

WCJ DENIED EMPLOYER'S REVIEW PETITION.
WHY?
(1) There was no overpayment! His prior order required payment of $509 to Employee.
(2) Even if it was an overpayment, Employer could not recoup the money.
(3) Recoupment is only allowed for a mathematical miscalculation or mistake in an agreement, citing Dollar Tree Stores Inc. (2007).

WCJ EXPLAINED: 
WCJ said  (i)   he had ordered Employee to be paid  at the rate of $509, which Employer did.
WCJ said  (ii)  he had ordered payment of counsel fees of 20%, over and above claimant's $509 rate.

WCJ said (iii)  he ordered "new"payment of the quantum meruit itemization to Employee counsel for unreasonable contest of the Employer Review Petition.
[problem with iii, there was NO itemization, in re this petition].
*********************************************************************************

So, let's recap, Employer tried to correct a mistake,
Employer was denied any relief and,
Employer was assessed the additional cost of Employee attorney fees.

WCAB decision reversed the unreasonable contest award in the Employer review petition,
BUT denied Employer recoupment of overpayments, as there was no evidence that payments were made under a "mistaken belief".
The Dollar Tree Stores Inc. case was interpreted to require payments are made under a "mistaken belief", in order to allow a recoupment to Employer..

Commonwealth Court gets it "right"!

l. Did an overpayment occur? YES
Unreasonable contest attorney fees are paid pursuant to Section 440.
Section 440 requires the submission of an itemized quantum meruit fee statement demonstrating the time and effort required and actually expended.
An attorney fee award that simple "adds" 20% to claimant's weekly compensation indefinitely, does not (1) relate to the work actually done and (2) is not authorized by the Act.

The Court reviewed the prior 2002 WCJ order, which the WCJ apparently had trouble deciphering in 2010.

In March 2002 the WCJ ordered payments to Employee at $509 per week.
WCJ directed Employer to deduct  20%of Employee's benefits and pay them directly to counsel.
WCJ ordered quantum meruit attorney fees for an unreasonable contest of all past due benefits.

In 2010, the WCJ erred in holding that his 2002 order required Employer to pay an ongoing quantum meruit fee of 20% in addition to the full amount of benefits awarded to Employee.

ll. Can Employer Recoup the Overpayment? YES
The circumstances where recoupment from an Employee is permitted are varied.
Prior decisions have allowed recoupment to prevent a double recovery or unjust enrichment to an Employee.

Where an Employer miscalculated an AWW rate and did not discover the mistake for two years, recoupment was permitted to prevent an unjust enrichment. Fahringer (1987).

Section 413 of the Act allows the WCJ to modify an agreement which contains a material mistake.

In Dollar Tree Stores Inc., the reason the Employer request for recoupment was denied was because Employer paid disability benefits without issuing an NCP or compensation agreement! There was no agreement to modify, as authorized by Section 413.

In Mino (2010) recoupment was allowed where Employee was awarded and paid PPD benefits, when unbeknownst to the Insurer, the Employer had continued to pay Employee full salary, despite reduced work hours.

In Lucey (1999) recoupment was allowed to avoid unjust enrichment, where Employer paid claimant $140k to pay a hospital bill, believing that amount was necessary to cover that expense. Claimant negotiated a lower payment of $110k. As the $140k was a payments made under a "mistaken belief", a credit was allowed against future benefit payments.


Appellate case decisions support Employer's argument that recoupment has been allowed to correct agreements and in other circumstances, to prevent unjust enrichment.
HERE Employer made payments under a mistaken interpretation of the WCJ orders.
This allows an argument for recoupment.
This case was remanded for a determination of a just and manageable sum for the weekly credit amount.

PRACTICE POINTERS:
1. HURRAY, The Commonwealth Court inserted reason and fairness in their analysis of this workers' compensation case. The parties should be allowed to correct mistakes.
We all make mistakes. A mistake should not be the basis for anyone to unrightfully claim or keep a financial payment.
The Court balanced the Employer right to a credit with the assessment of a fair figure for a weekly credit, paid by the Employee.

2. At times, the wording of decisions, lends itself to alternative interpretations.
Try to identify and address any problem areas with Employee counsel.

For example, a 50% penalty assessed on all outstanding medical bills ... does that mean outstanding at the time of the petition, or outstanding at the time of decision, when substantial payments were made in the interim.
In my experience, after we could not reach an agreement, I filed a Petition for Review, noting that we would pay ... we just wanted to be certain of the amount payment due.Unfortunately, We did not discover our disagreement, until after the appeal period expired.

3. Remember that a WCJ decision may be corrected or amended within 20 days, as per Regulation 131.112. A typographical or clerical error may be corrected by motion of the WCJ or either party.
Other amendments or corrections may be made upon written agreement of the parties.

4. The parties can always reach an agreement and voluntarily correct any mistake via the execution of a Supplemental Agreement. A best practice, is to explain the reason for the change of benefit status, where provided on the agreement.