>Pennsylvania Supreme Court Determines That Job Availability Pursuant to a Labor Market Survey Must Be Focused on Where Injury Occurred

>In Riddle v. WCAB, the Supreme Court of Pennsylvania has determined that when an employer pursues a Labor Market Survey under the Pennsylvania Workers’ Compensation Act, for non-residents, it “must focus its job availability analysis on the area where the injury occurred….” The Court found that the General Assembly defined the method for evaluating “earning power” in unequivocal language that identifies the area where the injury occurred as the relevant location for non-residents. 77 P.S., sec 512 (2).

The Claimant, Harry Riddle, is a West Virginia resident formerly employed as an electrician by Allegheny City Electric in Pittsburgh. He suffered a work-related injury described as right shoulder tendonitis in August 2000. The Employer, in March 2005, petitioned for a modification or suspension of his benefits based on a release to light duty work by his treating physician. The employer asserted that considering his age, skills, education, experience, and work availability in the relevant geographical area, that he had an earning power necessitating a reduction in his workers’ comp indemnity.

The Labor Market Survey was completed for the Wheeling, West Virginia area where he resided at the time of the Survey- even though he was injured in Pennsylvania.

The Workers’ Comp Judge granted the modification petition and reduced Riddle’s benefits. On appeal to the Workers’ Compensation Appeal Board, the Board affirmed the reduction of benefits.

The Commonwealth Court then held that the employer was not precluded from obtaining a modification of benefits based on job availability in West Virginia, Ohio, or Pennsylvania because Appellant had a residence in West Virginia and stayed with his father in Ohio, where he also held a driver’s license.

The Supreme Court noted that 77 P.S., sec 512 (2) describes the means by which the employer could satisfy its burden of proving earning power- in that earning power is a “function of the work the employee is ‘capable of performing’ and job availability ‘in the usual employment area'”. The employer, it noted, could carry its burden of proof by introducing expert testimony as to both elements. With respect to injured employees who do not live in Pennsylvania, “the usual employment area where the injury occurred shall apply”.

The employer tried to argue that the statute merely requires that the area of injury- Pittsburgh, must be used as a starting point in developing an earning power assessment. It read the statute as permitting the employer to develop an EPA for additional areas with which Appellant (Riddle) had economic and vocational ties, such as parts of West Virginia and Ohio, in order to discover his “true” earning power. The employer did not want a strict reading of the statute, obviously, and wanted to adopts its own interpretation.

The Supreme Court rejected the employer’s broad interpretation, finding the phrase “shall” as mandatory in its common usage as well as legal parlance. When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S., sec 1921.

Overall, I think the Supreme Court made the right decision. The words of the Act are clear.

If you have any questions as to how this case may apply to your situation, please call me directly at 215.206.9068 or email mcardamone@krasno.com

-Michael W. Cardamone- Fighting For Injured Workers In Pennsylvania


>The Claim Petition Process in Pennsylvania Workers’ Compensation Is Too Slow.

>Having spent over a decade litigating Pennsylvania Workers’ Compensation cases, I have to say that the system is quite fair overall. Both injured workers and employers/insurers have due process- the ability to be heard, the ability to present evidence, and to receive a “reasoned” decision from a Workers’ Compensation Judge.

However, when an injured worker in Pennsylvania has her claim denied at the outset- that is, within 21 days from the date of notice, (at least, theoretically, as we practictioners know that many claims are not accepted or denied within the 21 day requirement), she must file a Claim Petition- even if the denial is unfounded or simply filed to avoid payment. The case then gets set for a series of hearings, a period of six months for medical depositions, and then several months for the written arguments and a decision from the presiding WCJ. This process often takes approximately 12 months. In the meantime, the injured worker is without her wage loss and medical benefits, and forced to live on unemployment compensation, or other available benefits such as short or long- term disability. Frequently, an injured worker whose claim has been denied, has to dip into their life -long savings, just to provide food and shelter for her family. Sometimes, the injured worker has no job to return to, as employers will eliminate the position, terminate the injured worker, or fail to provide work within the doctor’s restrictions.

The effects of this long process are devastating to injured workers in Pennsylvania. Credit is irreperably damaged, savings are exhausted, houses are lost, and stress levels go through the roof- exacerbating the disability, and often causing additional mental problems such as anxiety and depression.

We could speed up this process by instituting a preliminary hearing– similar to our criminal law system, whereby an injured worker in Pennsylvania would have to present a “prima facie” case- perhaps within 30 days of the initial filing, demonstrating vis- a -vis testimony and medical reports, that a work injury and a commensurate disability has occurred. If proven, two thirds of the wage loss and medical benefits would commence, plus statutory interest. If denied, then the case proceeds onto the merits with depositions and full testimony from the relevant witnesses. If the prima facie case is met, the employers would still have the right to defend the case on the merits through the usual process. If the prima facie case is met, but then reversed in the final, written decision, the employers/insurers could seek reimbursement from the Supersedeas Fund.

This is just one idea for speeding up the Claim Petition process in Pennsylvania Workers’ Compensation to avoid the cascading devastation caused by the 12 month waiting period when a claim is denied at the outset.

-Michael W. Cardamone
Fighting For Injured Workers In Pennsylvania


>If I Worked Two Jobs, Does My Workers’ Compensation Rate Account for Lost Income from Both Jobs?

>Yes. This is called concurrent employment. Wages received from all concurrent separate employment are used to determine the Average Weekly Wage to calculate compensation payable by the liable employer. Act 12 of 1972 eliminated the requirement that the defendant-employer have knowledge of such concurrent employment prior to the incident.

Concurrent means “at the time” of the injury.

Note that the receipt of unemployment compensation benefits by virtue of a temporary layoff is not controlling as to a finding of concurrent employment. Instead, the focus is whether the employment relationship remains sufficiently intact such that the employee’s past earning experience remains a valid predictor of future earnings loss.

Further, to calculate the injured workers’ AWW with concurrent employment, the AWW of each position must be calculated separately and then added together.

For more information on this topic, email mcardamone@krasno.com or call Michael W. Cardamone directly at 215.206.9068.