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When an employer who has not offered a specific job to a workers’ compensation claimant seeks modification of benefits based on earning power, the employer must demonstrate that its evaluation of the claimant’s earning potential was based on positions actually open and available to the claimant, the Pennsylvania Commonwealth Court has ruled in an issue of first impression. According to the court, Joan Kiefer, the claimant in South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), sustained a soft-tissue injury to her right knee while serving as a part-time registered nurse for South Hills. Seven months later, South Hills served her with a notice of ability to return to work. And three months after that, the employer filed a petition to modify Kiefer’s benefits, claiming she was capable of finding gainful employment with another employer. The claimant denied South Hills’ allegations, and the matter was referred to a workers’ compensation judge, who denied modification of Kiefer’s benefits. The Workers’ Compensation Appeal Board affirmed, and South Hills petitioned for review. Writing for the Commonwealth Court, Senior Judge Joseph T. Doyle first indicated that the Kachinski standard applies to � 306(b)(2) of the Workers’ Compensation Act as amended by Act 57 in 1996. Accordingly, Doyle said, South Hills failed to establish that it had offered Kiefer a specific job she was capable of performing prior to filing for modification of benefits. “In this case,” Doyle wrote, “[South Hills] never made an actual offer of a specific job, but instead sent claimant job listings for positions for which claimant could apply. That approach does not satisfy the requirements of Kachinski, which … is still applicable in situations where an employer seeks a modification of benefits based on an offer of a specific job with the employer.” In Kachinski, the state supreme court held that an “employer must … produce evidence of a referral … to a then open job … which fits in the occupational category for which the claimant has been given medical clearance.” Later, in Hoover v. Workers’ Compensation Appeal Board (Harris Masonry Inc.), the Commonwealth Court found this standard applicable to job offers employers are required to make under � 306(b)(2). That section states that before filing for a modification of benefits, employers must offer to claimants any job vacancies claimants would be capable of filling. In concluding that South Hills failed to prove that it offered any specific position to the claimant, the Commonwealth Court relied on the findings of the workers’ compensation judge, to wit: “the employer attempted to shift the burden to the claimant to attempt to determine which positions possibly met her capabilities. … The program demonstrates no more than a sham attempt to meet the provisions of the Workers’ Compensation Act regarding the obligation to offer the claimant a specific job vacancy.” Under the Workers’ Compensation Act, however, employers may also seek a modification of benefits after presenting an expert opinion as to a claimant’s earning capacity. Thus, the court turned to the employer’s contention that it did in fact prove Kiefer’s earning potential, and thus could gain modification of benefits. “Distilled to its essence,” the opinion states, “the issue before this Court is one of first impression: whether … an employer [may] establish a claimant’s earning power, and, hence, prove partial disability, without establishing proof that there is an actual open and available job that the claimant is able to perform.” According to the court, South Hills asserted that it had established Kiefer’s earning power because her own expert testified that certain positions within Kiefer’s capabilities were open and available from other employers when the expert conducted her job survey almost two years after the claimant’s injury. The court first examined the language of the Workers’ Compensation Act. “Disability partial in character shall apply if the employee is able to perform his previous work or can, considering the employee’s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employee lives,” Doyle wrote. South Hills claimed that “employment which exists” indicates the legislature’s intent that employers need not submit evidence of jobs actually open and available in order to establish a claimant’s earning power, Doyle said. The court disagreed. “The reference in the Act to ‘existing jobs’ means jobs that not only ‘exist’ but ‘exist’ in reality and are open and available to a claimant,” Doyle wrote. “The plain language of Act 57 indicates that earning power is to be determined by: (1) the work an employee is capable of performing … and (2) expert opinion evidence including job listings, with agencies of the department, private job placement agencies, and advertisements in the usual employment area. “This court cannot agree with employer that the amendment contemplates that employers may establish earning power through evidence of positions that do exist but which are unavailable to a claimant because someone else is working in those positions,” the opinion states. Interestingly, the claimant’s own certified disability management specialist opined that she would be capable of filling four job openings at a nearby hospital. The expert further concluded that Kiefer had earning power up to 40 hours per week based on a weekly wage of $413.60, Doyle wrote. However, the workers’ compensation judge concluded that the positions were not available a year earlier, when South Hills’ own expert rendered an opinion. Further, that judge rejected the claimant’s expert’s earning power opinion because the claimant had applied for the open positions but did not receive any response. Quoting the workers’ compensation judge, Doyle said South Hills failed to prove that it was entitled to establish earning power: “‘Even though there is evidence of earning power as of June 30, 1998, [the] employer failed to prove that it is entitled to establish that earning power.’ … Thus, the [Workers' Compensation Judge] determined that the positions were not available … based upon claimant’s credible testimony and this Court will not disturb the [judge's] factual findings when those facts are supported by substantial evidence.” In deciding South Hills, the Commonwealth Court left a seemingly crucial question unanswered. “The issue that we do not reach today, with regard to employment opportunities other than with employer, that remains to be answered is whether a claimant must receive an actual offer of employment in order to establish earning power,” Doyle wrote. “Although we have concluded that … existing positions must be available at the time an expert conducts a job survey, the Act contains no clear indication that a claimant actually receive an offer of employment in order to establish his or her earning power. In this appeal, however, because the [Workers' Compensation Judge] found that the evidence did not establish that the subject positions were even open and available, we need not reach this issue.” Gary E. Wieczorek of Tucker Arensberg in Pittsburgh, and Thomas A. Shumaker, now of Eckert Seamans Cherin & Mellott in Pittsburgh, represented Kiefer. Vito S. Bochicchio of O’Brien Rulis & Bochicchio in Pittsburgh represented South Hills.

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