Changes in PA Workers' Compensation Act 2014

TASA ID: 1823

A Pennsylvania Supreme Court decision made in November 2013, concerning standards for Workers' Compensation for Labor Market Surveys, is understood to substantially increase the burden in attempts of employers in modifying worker's compensation benefits. The decision argued on March 7, 2012 and decided upon November 21, 2013, involved a claimant who was injured during her employment with Phoenixville Hospital. She had applied for five jobs comprising a LMS.

The claimant was not offered employment by any of the five employers cited in the LMS. The WCJ ruled against the insured, indicating that the claimant "acted in good faith" by applying for all the jobs comprising the LMS. The claimant had not been required to apply for the jobs by the vocational case manager, as is common practice in Act 57 cases. Never the less, the WCJ determined that the insured had failed to establish the right to a modification of benefits under Section 306[b] of the Act.

The insured was also unsuccessful before the Workers' Compensation Appeal Board and it was not until the insured reached the Commonwealth Court that she met success. Commonwealth Court reversed the WCAB, noting that an insured need only show at the time which the LMS was conducted , that jobs cited were available, as well as within the claimant's medical release and in their geographic area of employment.

The claimant then brought the case to the Pennsylvania Supreme Court, which ruled that "the proof required to reduce or suspend benefits must rest upon the existence of meaningful employment opportunities and not the simple identification of jobs found in employment listings and want ads". The Supreme Court also remanded the case to the WCJ, in order to give the claimant a chance to demonstrate why she was not hired for any of the jobs for which she applied.

Based upon this case ruling, it can be understood that in addition to LMS jobs being within a claimant's physical and vocational restrictions that the jobs need to be able to be proven to be actually available and open at the time of the LMS. Additionally, it can be understood that claimants need to be notified of the LMS jobs cited, on a timely basis, in order that claimants have the opportunity to apply for the jobs, should they wish to. Thus, a claimant is furnished with the opportunity to challenge the results of a LMS, based upon their physical, educational and vocational capacities.

 It is also understood that vocational case managers will need to have follow-up contact with employers cited in Labor Market Surveys, to determine if the claimant applied for the jobs. They must also determine what the hiring decision was and whether the job was still open at the time the claimant applied. Since the vocational case manager would not be present at the time which the claimant may apply for jobs, the results of this interaction and whether job sabotage may have been committed would likely not be known by the vocational case manager.

In light of the results of this State Supreme Court decision in Pennsylvania, vocational case managers need to notify claimants of jobs cited in the LMS on a timely basis, should the claimant decide to apply for the jobs included in the LMS. Further, follow-up contact with employers to determine the results of the claimant's potential application on a timely basis is necessary. Obtaining detailed information from employers, concerning a claimant's application would clearly appear to be a challenge facing vocational case managers.

Thus, the results of this Supreme Court decision, is considered to cause several concerns for vocational case managers, many of which have been briefly highlighted herein. How cases will be decided upon in light of this new case law will need to be monitored closely by all parties involved. It would appear that this decision will empower claimants who elect to apply for LMS jobs, while causing added complexity for vocational case managers, litigators and employers seeking benefit modification.

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

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