An employer is entitled to a modification of benefits based on a proof of earning power from certain positions as long as there is proof the jobs remained open and available until claimant had a reasonable opportunity to apply for them.

The Commonwealth Court agreed that the Workers’ Compensation Judge and the Appeal Board incorrectly reasoned that it was the claimant’s burden to prove that all five jobs found by a vocational counselor were not open. The court noted that in their recent decision of Valenta v. WCAB (Abington Manor Nursing Home and Rehab and Liberty Insurance Company), 1302 C.D. 2016, filed December 7, 2017, they held that an employer bears the burden of proving all facts entitling it to a modification of benefits, including the continued availability of jobs identified as proof of earning power. Considering this, the court found that of the five jobs, only two remained open and available to the claimant—the two for which the claimant received job interviews. Therefore, the court affirmed the decision of the Appeal Board and recalculated the claimant’s residual earning capacity based on these two jobs only, which, according to the claimant’s own testimony, were open and available.

_{Case Law Alerts, 2^nd Quarter, April 2018}

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