For injuries suffered on or after June 24, 1996, an insurer may demonstrate an employee’s earning power by providing expert opinion evidence relative to the employee’s capacity to work. The evidence (See Section 123.302 of the Act 57 Regulations) shall include job listings with agencies of the Department, private job placement agencies and advertisements in the usual employment area within Pennsylvania. Partial disability applies if the employee is able to perform his previous work, or can, considering the employee’s residual productive skill, education, age, and work experience, engage in any other kind of substantial gainful employment in the usual employment area in which the employee lives within Pennsylvania. (123.302).
However, if a specific job vacancy exists with the pre-injury employer in Pennsylvania, which the employee is capable of performing, the employer SHALL offer that job to the employee prior to seeking a modification or suspension of benefits based on earning power.
The specific job vacancy element is extremely important because if the employer fails to confirm that no work is available for the employee within his restrictions before seeking to modify or suspend wage loss benefits based on a Labor Market Survey, then the petition will fail. This is a tool for claimant’s attorneys to attack a Labor Market Survey. I will sometimes hire my own vocational expert to research the issue as to whether any jobs existed at the time -of- injury employer within my client’s restrictions at the time the employer is performing its earning power assessment. Another area to attack is whether the job, if offered, is actually within the employee’s restrictions. There are usually differences of opinion between the medical experts.
But when does the employer’s obligation to offer a specific job vacancy to the employee commence? If the petition to modify or suspend is based on a change in the employee’s medical condition, the obligation commences when the insurer provides the Notice of Ability to Return to Work (per section 306(b)(3)) and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. If the petition is not based on a change in medical condition, the obligation to offer a specific job vacancy commences at least 30 days prior to the filing of the petition.
There are circumstances in which the employer’s duty may be satisfied. A few examples are when the employee was notified of a job vacancy and failed to respond or refused it, or when no job vacancy exists within the usual employment area.
As you can see, this section of the Pennsylvania Workers’ Compensation Law is complex and technical. If your employer or insurer is seeking to reduce your Pennsylvania Work Comp benefits, based on an earning power argument, call or email PA Work Injury Lawyer Michael W. Cardamone at 215-206-9068 or Michael@cardamonelaw.com for a free consult 7 days a week. All I Do Is Fight For Injured Workers.
