Appeal to the Supreme Court from the Order and Opinion of the Commonwealth Court entered on June 30, 2010, reversing the Order of the Workers’ Compensation Appeal Board entered on October 14, 2009.
The Supreme Court accepted review of this matter to determine whether the Commonwealth Court erred in its interpretation of Section 306(b) of the Workers’ Compensation Act. The Commonwealth Court held that substantial gainful employment exists for purposes of granting a modification of the claimant’s benefits pursuant to Section 306(b) despite the fact that the claimant’s application for specific jobs failed to result in any offers of employment. Further, the appellant (claimant) had argued that the Commonwealth Court erred by not remanding the case for further evidentiary development based upon the interpretation of Section 306(b).
Originally, on August 9, 2007, the employer filed a modification petition based upon two labor market surveys. During the litigation of the original matter, the employer presented both medical and vocational testimony. The claimant had been released to sedentary work and, after performing a vocational interview, the vocational rehabilitation counselor had completed two labor market surveys. The appellant (claimant) testified that in July 2007 she received the labor market surveys and with regard to the first three positions had, in fact, applied for each of them in July 2007. Written applications were admitted into evidence. With the remaining two positions, the appellant testified that she applied for each of those positions and that during telephone interviews for the remaining two positions she was informed by the employer’s that she was not qualified for the respective positions.
The Workers’ Compensation Judge issued a decision accepting as credible the testimony of the employer/appellee’s medical and vocational expert and rejected as less credible the appellant’s medical and vocational expert.
However, the judge did find credible the appellant’s testimony that she had made a genuine effort to secure any one of the five jobs identified in the labor market survey, but had not received an offer of employment. The judge determined that she had, in good faith, followed through on the job referrals made to her by the employer and that none of the referrals resulted in an offer of employment. Therefore, the judge concluded that the employer had failed to establish its right to a modification of benefits under Section 306(b) of the Act and, accordingly, denied the modification.
On appeal, the Workers’ Compensation Appeal Board affirmed the decision of the Workers’ Compensation Judge.
The matter was then appealed to the Commonwealth Court and the court reversed the Workers’ Compensation Appeal Board and ordered a modification of benefits based upon the appellant’s earning power of $347.41 per week as calculated by the employers’ vocational expert.
Supreme Court Decision
The matter was accepted for review by the Supreme Court to address two issues;
- Did the Commonwealth Court err and misinterpret the meaning of Section 306(b) of the Workers’ Compensation Act 77 P.S. Section 512(2) in determining that a job is available to a claimant for purposes of said Act when a claimant applies to each individual job contained in a labor market survey and does not receive an offer of employment;
- Did the Commonwealth Court err in failing to remand the matter to the Workers’ Compensation Judge for determination of whether or not the jobs identified by the employer’s vocation expert were open and available in light of the fact that the holding of the Commonwealth Court in this case altered the status of the law at the time of the decision rendered by the Workers’ Compensation Judge.
The Supreme Court concluded that looking at the legislative history, the version of Section 306(b) that was ultimately enacted evidences the general assembly’s salutary intent that proof of substantial gainful employment must be based on the existence of meaningful opportunities for the claimant to obtain employment. It therefore follows that expert opinion evidence under Section 306(b) functions not only as a means of demonstrating that there are open jobs that exist within the claimant’s limitations, but also as a mechanism for providing the claimant with notice of the existence of these jobs, which thus provides a serious opportunity to secure employment. Accordingly, a claimant must have latitude wider than that allowed by the Commonwealth Court below to present evidence regarding her or his experience when applying for the jobs identified by the employer’s expert witness. The legislative history reflects that a claimant indisputably may show that the employers’ labor market surveys were simply based on unsubstantiated, erroneous, conflicting, false, or misleading information and that evidence regarding the claimant’s actual experience with the employers identified in the employer’s labor market survey may lend support for establishing contentions along these lines. Additionally, because an employer is required to establish the existence of substantial gainful employment that is compatible with the claimant’s residual productive skills, education, age, and work experience, it would be directly relevant for claimant to show that an employer rejected the claimant’s job application precisely because the work is incompatible with the claimant’s residual productive skills, education, age, or work experience.
In this matter, the Workers’ Compensation Judge made no specific factual findings as to why the appellant was not hired for this position. The court noted parenthetically, however, that the appellant testified without objection that she had been informed during her telephone interview with the perspective employer that she was not qualified for the job because of her lack of familiarity with a certain computer program. Arguably, appellant presented evidence in this instance that the job was not within her vocational restrictions even if it may have been within her physical or medical restrictions.
The court also held that the legislative history states that the term (substantial gainful employment which exists) to be meaningful within the context of the goals of the Act must encompass more than the mere existence of jobs compatible with the claimant’s restrictions that happen to be open at the time they are discovered by the employer’s expert witness. The statutory concept (of substantial gainful employment which exists) would be meaningless with respect to a claimant’s actual medical and vocational circumstances unless the jobs identified by the employer’s expert witness, which are used as the employer’s proof of earning power under Section 306(b), remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.
The Supreme Court did state in its decision that it is aware from reviewing legislative history that Act 57 was intended to modify the evidentiary burden on the employer for cases involving partial disability. The court rejected the appellant’s argument in this matter that Kachinski, with its requirement that the claimant be referred to an open job and receive a job offer, should be used to reinterpret what Section 306(b)(2) requires an employer to prove. The court went on to hold that the statue’s language does not track Kachinski, and, quite plainly, Section 306(b) is not a codification of Kachinski. Significantly, Kachinski required the employer to refer a specific job to the claimant, which job, if obtained or if rejected in bad faith by the claimant, established a basis for determining the amount of the claimant’s partial disability benefits. By contrast, the court held Section 306(b)(2) requires the employer to identify specific jobs. The legislature lowered the Kachinski burden of proof by allowing an employer to obtain modification or suspension of benefits on evidence of earning power proved through expert testimony rather than providing evidence that the claimant had obtained employment. In this sense, the court agreed that the legislature replaced the court’s Kachinski approach.
However, with this understanding, the Supreme Court then turned its attention to the claimant’s opportunity to submit evidence regarding her or his experience in pursuing the jobs identified by the employer’s vocational expert witness, which evidence was substantially prohibited by the Commonwealth Court in the instant case.
Evidence that the claimant pursued, but failed to obtain, gainful employment with the employers identified by the appellee’s expert witness is undeniably relevant to rebut the employer’s argument that the positions identified were proof of the potentiality of a claimant’s substantial gainful employment. A claimant must be afforded the opportunity to submit evidence that she or he did not obtain employment because the position identified by the employer’s expert witness was already filled by the time the claimant had had a reasonable opportunity to apply for it. If the job is already filled, it does not exist, to afford Section 306(b)’s language its commonly understood meaning.
The Workers’ Compensation Judge is charged with finding the facts necessary to support her or his decision that disposes of the motion to be decided. Whether a claimant had a “reasonable opportunity” to apply and did, in fact, apply for an identified position (and whether the job was already filled by the relevant time) are factual matters that the Workers’ Compensation Judge is fully qualified to determine. Therefore, the Workers’ Compensation Judge in this case, as the Workers’ Compensation Appeal Board had observed, did not stray beyond the limits of Section (b) by making the relevant finding that the appellant had applied for the five positions identified in the vocational labor market survey in (good faith). Therefore, the court found that since the appellant was not afforded the opportunity to fully develop her proof as described in its opinion, the decision of the Commonwealth Court was reversed and the case was remanded for disposition of the manner consistent with the opinion.
What It Means to You
It appears from this decision that with regard to labor market surveys, the vocational expert must not only produce jobs that are vocationally and medically suitable for the claimant, but the jobs must also be opened for a reasonable amount of time for the claimant to make application to the same. Further, during the litigation of any Petition for Modification or Suspension based upon a labor market survey, the claimant should be afforded the opportunity to present evidence as to making a “good faith” effort in an application for any and all of the positions that have been set forth in the labor market surveys. This evidence should include his or her experience in pursuing the jobs identified by the employer’s vocational expert.