The mere presentation of evidence of unsuccessful applications to jobs listed in a Labor Market Survey does not mandate a finding that the positions were not open and available and that the claimant lacked an earning capacity.

The Commonwealth court found this was a case of first impression regarding the rights of claimants and employers under § 306(b) of the Act after the Supreme Court’s decision in Phoenixville Hospital v. WCAB (Shoap), 81 A.3d. 830 (Pa. Cmwlth. 2013). The claimant took the position that, because she applied for the jobs listed on the Labor Market Survey and Earning Power Assessment but did not get a job, the employer failed to prove an earning capacity. The employer argued that while the claimant’s testimony that she applied unsuccessfully was relevant, it was not dispositive. The court noted that the claimant presented evidence attempting to show that the survey/assessment was based upon incorrect information in that the jobs were not open and available because she attempted to apply for all of them, but was either turned down, told the job was unavailable or unable to reach the contact person. The court indicated that this was precisely the sort of testimony that Phoenixville Hospital mandated claimants be permitted to present. In the court’s view, the Workers’ Compensation Judge evaluated the claimant’s testimony but did not find it sufficient to show that the employer had not met its burden. The court rejected the claimant’s argument that the presentation of evidence of unsuccessful applications to jobs listed in a survey/assessment required a finding that the positions were not open and available and that she lacked any earning capacity. According to the court, the evidence was relevant but not determinative with regard to the earning power inquiry. 

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

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