Close

Tag: Labor Market Survey PA Work Comp

Unfortunately for injured workers the answer is no.  In this Commonwealth Court of Pennsylvania Decision, handed down on November 8, 2013, the Court held that an employer does NOT have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition. Rather, a claimant may present evidence that “during the period in which the employer…had a duty to offer a specific job,” the employer had a specific job vacancy that it intended to fill that claimant was capable of performing. The burden then shifts to the employer to rebut the claimant’s evidence. The Court found that the Employer in this matter did not have any available positions within the retails stores that fell within Claimant’s restrictions. Further, Claimant failed to show that the Employer was actively recruiting for a specific job vacancy or that Employer had posted the existence of a specific job vacancy.

Claimant also asserted that the Employer’s vocational expert was required to contact the Employer about open and available jobs at its retail stores that Claimant was capable of performing PRIOR to conducting the labor market survey. The Commonwealth Court disagree, finding that neither the Act, nor any decisional law or Department regulations support that proposition.

The Commonwealth Court cited Section 306(b)(2) of the Pennsylvania Workers’ Compensation Act and Section 123.301 of the Department’s regulations to find:

“to prevail in seeking a modification of benefits, an employer must either: (1) offer to a claimant a specific job that it has available, which the claimant is capable of performing, or (2) establish ‘earning power’ through expert opinion evidence including job listings with employment agencies, agencies of the [Department], and advertisements in a claimant’s usual area of employment.” (citing South Hills Health Sys v. WCAB).

The bottom line here is that the Pennsylvania Workers’ Compensation Law does not require proof of the absence of specific jobs with the employer as a pre-requisite to expert testimony regarding “earning power”. But, the law does require an employer to offer a position to a claimant if it exists.

This Decision is not fair in my opinion. Why not? In a modification petition setting based on a labor market survey, the claimant is receiving indemnity benefits. To change the status quo, the employer/insurer has the burden of proof. It should, similarly, have the burden of demonstrating the absence of any appropriate job rather than putting that burden on a claimant who lacks the resources and access to the employer and its job availability information. This is just another disturbing example of the increasingly conservative rulings aimed at protecting employers and insurers to the detriment of injured workers and in clear defiance of the humanitarian spirit of the Act.

For more info about Pennsylvania Work Comp Law, call or email Certified Pennsylvania Work Comp Specialist, Michael Cardamone at (215) 206-9068 or Michael@cardamonelaw.com

7 Days A Week

Awards & Recognitions

Philadelphia workers comp lawyer
Philadelphia workmans comp lawyer
Bucks County workers comp lawyer
best workmans comp lawyer philadelphia
Philadelphia Workmans Comp Lawyer
Top 10 Attorneys Award Pennsylvania workers' comp lawyer
Philadelphia workmans comp lawyer
Philadelphia workers compensation lawyer
best bucks county workmans comp lawyer
Avvo Rating 10.0 Philadelphia workers' comp lawyer
Workmans comp lawyer
best workmans comp attorney
best Philly workmans comp lawyer
Bucks county workmans comp lawyer
best Philadelphia workmans comp lawyer

Cardamone Law Has Negotiated Some of the Largest Workers’ Comp Settlements in Pennsylvania

$2.2 Million
Spinal Injury
$897,000
Lower Back Injury
$650,000
Lower Back Injury
$550,000
Neck Injury
$425,000
Leg Injury
$375,000
Knee Injury
$325,000
Ankle Injury
& Hundreds More Cases
$2.2 Million
Spinal Injury
$897,000
Lower Back Injury
$650,000
Lower Back Injury
$550,000
Neck Injury
$425,000
Leg Injury
$375,000
Knee Injury
$325,000
Ankle Injury
& Hundreds More Cases

Client Testimonials

"Best Law Firm around!"

"Cardomone law is absolutely fantastic! They are very responsive and helpful and they will fight to get you what you deserve. Shirley is also very helpful whenever you have any questions! Best Law Firm around!"

- C. Edwards
Google Reviews
"Michael and Shirley are very dedicated...and getting the maximum amount favorable to my case"

"Cardamone Law Firm were very helpful to me since day one. Michael and Shirley are very dedicated to my case giving me updates, answering my questions, being honest with my case, and getting the maximum amount favorable to my case. Thank you so much for your service and dedication and helping me to achieve not only your case but to guide and refer me in other needs too! You guys are the best law firm friendly and dedicated. I will recommend to anyone."

- A. Ortiz
Google Reviews
"Michael won my workers comp case after my employer insurance denied my claim."

"Exceptional firm. Highly recommend this law firm. Michael won my Workers Comp case after my employer insurance denied my claim. Him and his staff were always at my reach for legal and emotional support. Am so happy I hire them. Thanks Michael and Ms. Shirley."

- Carlos P.
Google Reviews
"[They] did an excellent job in getting me financially compensated in a fairly short amount of time."

"I recently had a work related injury and was receiving Workers' Compensation (medical benefits only). Soon after I was fired, so I contacted Paul Silver at Cardamone Law Firm who did an excellent job in getting me financially compensated in a fairly short amount of time. Paul and his assistant Shirley always responded to any questions I had about the case in a very short amount of time. Thank you for helping me with this difficult case."

- Robin C.
Google Reviews
"Highly recommend."

"Cardamone Law was great with helping my husband with his Workers Comp issues. Mike and Shirley were the best with letting us know what was going on every step of the way. Highly recommend."

- Danielle P.
Google Reviews
"Mike Cardamone is amazing"

"Mike Cardamone is amazing. He is "hands down" one of the best lawyers I've ever had the privilege of knowing. He is very kind, understanding, knowledgeable in his field, always very thorough and helpful. He was extremely professional and someone who truly cares about his clients. I felt completely at ease with him. He was a pleasure to work with, explained everything in detail, as well as answered all my questions with knowledge and care. If you want someone you can trust, who communicates every step of the way, will fight for you and make sure you win your case, he is it! I will refer all my family and friends to him. Thank you so much Mike, for everything. I appreciate all your hard work and dedication in helping me."

- Allie M.
Google Reviews
Without a doubt YOU are the best!!!

"Without a doubt YOU are the best!!! Every person who is in the horrible position of being injured at work should have someone as kind, compassionate and knowledgeable as you on their side. You never once made me feel like I was one of a hundred other clients. I always knew you had my back! You answered calls and emails at all hours. You fought every fight for me so I only had to worry about getting well. Behind your nice, calm face there’s a pit bull ready to take on any employer or judge. I can never thank you enough."

- L. Edall
Google Reviews
"Best Workers' Comp Lawyer!"

"Michael is simply the best! He was there for me from day 1 till the end, and we won the case!! He is always available to help. I had a gazillion questions and he would answer them one by one. He's a great lawyer and I feel lucky to have found him online from reading other outstanding reviews about him. Believe me, they're true!"

- Faith B.
Google Reviews
"Great Attorney"

"Great attorney, handled case quickly and efficiently. I would recommend him and would use him again. He was always available to answer any questions we had. Thank you, Mr. Cardamone."

- H. Anderson
Google Reviews