A Review of "Reasonable Travel" in the identification of "Open & Available" employment positions for the Pennsylvania injured worker.

 

REASONABLE TRAVEL AND THE “AVAILABLE” JOB OFFER

What constitutes an “open and available” offer of an employment position in terms of the travel time/distance required by the injured worker to reach the work site ?

The Employer has a remedy in the Pennsylvania Workers Compensation Act for Modification or Suspension of indemnity wage loss compensation benefits, which maybe be based upon the establishment of an injured worker’s post-injury earning capacity. That earning capacity may be established via an offer of a position by the employer or via vocational expert evidence in an Labor Market Survey and Earning Power Assessment report.  An Employer must produce evidence in support of a modification or suspension of an offer of an open position that fits the occupational category for which the injured worker has been provided medical clearance. See Generally: Kachinski v. WCAB (Vepco Construction Co.) 532 A.2d 374 (pa. 1987).

There are a number of factors to consider in establishing that an employment position is “open and available” to an injured worker – medical restrictions, vocational or education requirements, union status, specialized skills, to name just a few. 

The travel required to an available employment position is another criteria to be considered when preparing the job offer . Appellate decisions have established certain parameters regarding availability of transportation, travel time, travel distance with an assessment of a “totality of the circumstances” when making a determination of the availability of an employment position. The analysis of these factors is identical for the Employer job offer and the Vocational Expert Earning Power Assessment.

One appellate decision referred to a 25 mile radius as the  “industry standard” in vocational placement. A modification of compensation benefits was granted based upon LMS/EPA evidence of positions offered within the this travel range.  This travel was found to be in claimant’s geographic area. Bentley v. WCAB (Pgh. Bd. of Educ.) 987 A.2d 1223 (Pa. Cmwlth. 2009). The “industry standard” terminology seems to have been surpassed by the use of the “totality of the circumstances” standard.

Travel to an employment site (distance or time) can be a significant criteria is assessing the “availability” of an employment position, as a position can be found to be unavailable where the worker can perform the physical requirements of the position – but he/she cannot tolerate the work commute. Where the work commute was 120 miles in addition to the 8 hour work day, it was determined that the work position was not “available” to modify workers compensation benefits. See: Roadway Express Inc. V. WCAB (Palmer) 659.A.2 12 (Pa. Cmwlth. 1995).

An employment position as a dispatcher was found to not be available to a former interstate truck driver where the position required the injured worker: (1) to leave his residence; (2) establish residence at a motel; (3) purchase all meals; (4) at a location 116 miles from the residence.  See: Litzinger v. WCAB (Builders Transport) 731 A.2d 258 (Pa. Cmwlth. 1999).

One parameter has emerged regarding work site location and the assessment of the “availability” of an employment position. The employment position location may be assessed on the basis that –  the travel required to the work site is within the geographic area that others in the same community would travel. Where jobs offered were 39 and 42 miles from claimant’s residence, benefit modification was denied, as there was no evidence that other workers in claimant’s community would travel this distance for work.  Peljae v. WCAB (Mrs. Smith’s Frozen Foods) 667 A.2d 763 (Pa. Cmwlth. 1995).

Similarly, a work position was found to be not available where the one way commute was 150 miles and the total commute was 6 hours per day. Note: Although this travel distance seems significant, in context, this Claimant had previously worked at a site 100 miles from their residence. However, a determining factor was that there was no evidence that other community members would work in this distant area. Trout v. WCAB (Trans Continental Refrig.) 836 A.2d 178 (Pa. Cmwlth. 2004).

Contrast - where an employment position was found to be available where it required a commute of 47 miles one way (roundtrip 94 miles). Although the wage was in a lower range, this position was available on a full-time basis, 8 hours per day, 5 days per week. This employee had adequate personal transportation available and the vocational expert testified that it was common for individuals in the same community to accept employment at that location. The WCJ rejected claimant’s evidence that he could not tolerate the driving. A two (2) hour commute with an 8 hour work day was found to be not unreasonable.  Dilkus v. WCAB (John F. Martin & Sons)  671 A.2d 1135 (Pa. 1996).

Likewise, a public transportation commute of less than one hour each way was reasonable and the position was available to the claimant. This was a city commute from NE Philadelphia to Center City Philadelphia, which was described as a “extremely common commute”. Sinnott v. WCAB (2014 Pa. Commw. Unpub. LEXIS 359 Cmwlth. 2014.

A position was found to be available based upon a “totality of the circumstances” presented, where the employee travel would increase from 60 miles to 68 miles. This mileage increase was described as a negligible difference. The position was full-time, with a greater wage. It was found to be employment within claimant’s geographic area. Newhouse v. WCAB (P.J. Dick Corp.) 803 A.2d 2002).

A position was available where the travel was 25-30 miles one way, a total commute of 50 miles per day for a full-time position. Claimant presented evidence and his testimony regarding his allegations of  limitations of his driving, alleged as a result of his work-related physical symptoms. This evidence was found to be not credible. Shultz v. WCAB 2011 Pa. Commw. Unpub. LEXIS 593 Pa. Cmwlth 2011.

In the legal anaylsis and assessment of the "availability" of an employment position, one may reasonably assume that a person’s personal preference is irrelevant – if the position is located in the same community that others would accept employment. Jobs offered to this claimant were 8, 10 and 37 miles away. These jobs were found to be within the claimant’s geographic area. Testimony that Claimant preferred to not “drive out of town” due to possible snow and ice was not relevant to the assessment of job availability. Scheib v WCAB (Ames Dept. Stores) 598 A.2d 1032 (Pa. Cmwlth. 1991).

Caution must be noted – as there have been occasions when a claimant may successfully argue that a job is not “available” as they do not have a reliable vehicle available or they do not have access to reasonable public transportation.

See DME Company v. WCAB (Peters) 639 A.2 869 (Pa. Cmwlth. 1994) where a light duty position that was 20 miles from claimant’s residence was found “not available” as claimant had a vehicle, but it was unreliable. Also there was no evidence that: (1) public transportation was available and (2) that claimant community members would travel to work in this area.

One may appropriately observe that – that the commute time and travel distance are not absolute “standards”.  As Appellate decisions have evolved over time, there has been an emphasis upon the “totality of the circumstances” standard.

For example, a part-time 20 hour per week light duty job was not available to a claimant, where the job site was 30 miles from the residence – but not private transportation was available and the public transportation commute would total 3 hours with 4 bus transfers. The Court noted that this job offer would require a three (3) hour commute for a employment during a four (4) hour per day job. See: Goodwill Industries v. WCAB (Friend) 631 A.2d 79 (Pa. Cmwlth. 1993).

In Conclusion, where the injured worker has reliable private or  public transportation available, an employment position may be considered to be “available” if the travel time/distance/location is  typical for individuals in the same community to accept employment at that location.

Assessments of job availability based upon the travel distance/time requirements have varied. A position 25 miles from the claimant’s residence has been found to be “available” … and so has a position which is 68 miles from the claimant’s residence.

When assessing the "availability" of an employment opportunity to the injured worker , we believe that an employment position which requires a Claimant’s travel time of approximately one (1) hour, would be a position within the parameters of appellate decisions which have found similar positions to be “available”.