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Modification Petition

Job Availability and Labor Market Surveys: How to Survive and Beat the Modification Petition

In our previous article we discussed Labor Market Surveys and a Claimant’s obligations to “look for available employment” under the Pennsylvania Workers Compensation Act. Now we look at a recent case where those obligations were reviewed by the Pennsylvania Supreme Court.

In Phoenixville Hospital v. WCAB (Shoap), (Decided November 21, 2013), the Pennsylvania Supreme Court considered attempts made by the Claimant to secure the jobs referenced by the vocational expert in the labor market survey. In particular, the Claimant applied for each job and even interviewed for at least one of the jobs. The Claimant was not hired for any of the jobs and therefore argued the jobs were not “available” to her. The Supreme Court held that in order for the employer to meet its burden of proof on this type of modification petition, evidence of the purported “substantial gainful employment” as identified in the labor market survey, must be based on the existence of “meaningful opportunities for the Claimant’s employment.” Therefore, the Courts must give the Claimant the latitude to present evidence regarding his or her experience in applying for the jobs identified by the employer’s vocational expert. The case was then sent back to the Workers Compensation Judge to allow the Claimant to further submit evidence regarding availability of the jobs. Please feel free to contact our office for a free consultation to discuss your Pennsylvania Workers’ Compensation Claim.

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