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In 1996, the Legislature amended the Pennsylvania Workers’ Compensation Act to permit the modification of an injured worker’s benefits by establishing an earning capacity with a labor market survey. It has been determined that Act 57 provides for earning power to be determined by: The work an employee is capable of performing (in partial disability cases, consideration must be given to the employee’s residual productive skill, education, age and work experience); and Expert opinion evidence, including job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. The language of the act suggests that the Legislature sought to permit an employer to modify the benefits of an injured worker with a theoretical earning capacity, based on the opinion of an employer vocational consultant. Therefore, an employer would no longer have to pursue the modification of benefits based upon an actual job offer from a bona fide alternate employer. The commonwealth court decisions in South Hills Health Systems v. WCAB (Kiefer) and Allied Products and Services v. WCAB (Click), have made it more difficult for an employer to theoretically create an injured worker’s earning capacity without showing that actual jobs, with actual earnings, exist. The court has clearly determined that an employer must show that jobs contained in a labor market survey actually exist adding a requirement for the modification of benefits not specifically found in the language of the act. The court decisions requiring “actual availability” significantly change the litigation of a petition to modify benefits based on the labor market survey. When the commonwealth court decisions in South Hills Health Systems and Allied Products are considered in conjunction with McCray v. WCAB (Pre-School Development), it is clear that the employer cannot establish “actual availability” of the jobs listed in a labor market survey with just the testimony of a vocational consultant. In many cases, employers attempt to establish that jobs are actually available to the injured worker with just the testimony of the vocational witness. The vocational consultant is asked to testify whether specific jobs are available and to establish the wages that are available. The decisions in South Hills Health Systems and McCray may make this a very difficult hurdle for the employer to cross. The commonwealth court’s decision in McCray confirmed that the testimony of a vocational counselor “which is grounded on statements made to the counselor by prospective employers,” is hearsay and will not be admitted over objections by claimant’s counsel. Hence, when the vocational consultant attempts to testify about the availability of specific jobs and available wages, claimant’s counsel should make a hearsay objection. Otherwise, claimant’s counsel would permit the employer to establish an element of its burden of proof with clear hearsay evidence. Since hearsay that is not objected to is competent evidence, claimant’s counsel must assure that the necessary objections are made and preserved. The combined effect of South Hills Health Systems and McCray is most problematic for defense counsel. In order to prove that a position with specified wages and hours is available, it seems clear that the rules of evidence, pursuant to McCray, require testimony from the appropriate representative of the employer listed in the labor market survey. For example, if an employer needed to prove how much a receptionist at my law firm earns a week, the managing partner or office manager would need to testify to properly establish this fact for the record. Obviously, the properly placed hearsay objection changes the litigation of a modification petition based on a labor market survey for both parties. With all of the technical aspects that already surround a modification petition based on a labor market survey, it will be interesting to see how appropriate objections to hearsay further complicate this litigation.

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