Phoenixville Hospital v. WCAB (Shoap); 2188 C.D. 2009; filed June 30, 2010; by Senior Judge Flaherty

Claimant's good faith effort in applying for jobs is not a factor when an employer seeks a modification of benefits based on residual earning capacity.

Following the claimant's work injury, the employer filed a modification petition, alleging that the claimant had a residual earning capacity. The employer presented evidence from a vocational counselor, who testified that he identified five jobs that were open and available to the claimant. The vocational counselor testified that the claimant had a residual earning capacity based on these jobs. The claimant testified that she followed up on these jobs, which were referred to her, but received no offers. Although the workers' compensation judge found the testimony of the employer's vocational expert credible, he denied the modification petition based on the claimant's testimony that she had, in good faith, followed through on all the jobs referred to her by the employer and that none of the jobs resulted in an offer of employment. The Appeal Board affirmed. The Commonwealth Court, however, reversed. The court concluded that the issue of the claimant's good faith attempt to follow up on positions identified by the vocational counselor, and the failure to receive a job offer, was of no relevance. According to the court, the employer was not precluded from obtaining a modification of benefits where the claimant pursued the jobs contained in a Labor Market Survey weeks after they were identified as open and available. The fact that the claimant applied for the jobs identified by the vocational counselor and did not obtain an offer of employment was immaterial.

Case Law Alert - 4th Qtr 2010