By: Lisa A. Miller, Esquire
The Commonwealth Court affirmed the Decision of the Appeal Board and the WCJ granting Employer’s Modification Petition based upon a Labor Market Survey.
The Claimant sustained a work-injury on April 2, 2001 while employed as a truck driver for Employer. On March 30, 2009, Employer filed a Modification Petition, alleging that as of March 10, 2009, “work was generally available to Claimant within his vocational and physical capabilities.”
Employer presented the deposition testimony of its District Manager, Mr. Joka. Mr. Joka testified that he had been with Employer for thirty-four (34) years, and has been a District Manager for eight (8) years. He testified that he was “in charge of sales, hiring, firing, pretty much everything to do with the ten (10) local stores” in his district. He is routinely aware of available, open positions within ten (10) stores. He testified that when Employer has open positions, it advertises them through a computer system that permits applicants to apply online.
Further, addressing a question about whether he could describe “general positions within” Employer’s retail stores, Mr. Joka testified that available positions include cashiers, stockers, assistant managers, managers and district managers. He testified that “all of those positions are going to require a lot of physical movement…. Most of the day is spent lifting, merchandizing, cleaning the store and doing recovery.” There is very little office work.
Mr. Joka reviewed Dr. Baker’s IME report which restricted Claimant to lifting in a light duty capacity of one (1) to ten (10) pounds frequently, and eleven (11) to twenty (20) pounds occasionally. He testified that Employer did not have any open positions from July 28, 2008 until March 10, 2009, that could have comported with Dr. Baker’s “extreme” limitations of Claimant. Specifically, he testified that “whether its cashiering or stocking, at some point the individual is going to have to be lifting more than the weight limits and requirements from Dr. Baker.”
Mr. Joka admitted that he was not asked to look for a job for the Claimant, and that he was never contacted by Employer’s vocational expert. He acknowledged that Employer does not have actual written job descriptions for the retail store positions, and reiterated that office work in the stores was limited only to the managerial positions.
Employer also presented the deposition of the vocational expert, John Dieckman. He interviewed the Claimant on August 31, 2008 and confirmed with Specialty Risk Services that Employer was not able to offer the Claimant employment within the limitations. Mr. Dieckman performed a vocational analysis for eleven (11) positions, and he sent nine (9) to Dr. Baker for approval. Dr. Baker approved the submitted positions.
On cross-examination, Mr. Dieckman admitted that he did not directly speak with the Employer about the possible job opening for Claimant prior to conducting a Labor Market
Survey. He only spoke to the third party administrator prior to conducting the Labor Market Survey.
Claimant presented the testimony of vocational expert, Gary Young. Mr. Young testified that the jobs in the Labor Market Survey were inappropriate for Claimant because of Claimant’s background. Mr. Young testified that Mr. Dieckman had a “mandatory” duty to inquire regarding positions with the Employer.
The Judge granted the Modification Position summarizing the testimony of the Employer witnesses. He found the testimony of the Employer witness, Mr. Joka to be credible. He also found Mr. Dieckman’s testimony to be competent, credible, and persuasive.
He found Mr. Young’s testimony not credible, particularly since Mr. Young did not record any of his communications or contact information of the people that he contacted the various employers. Secondly, he contacted the employers located in the Labor Market Survey after the jobs were listed as available. The Judge concluded that Employer sustained its burden to prove that between July 28, 2008 and March 10, 2009, it had no particular job openings that fell within Claimant’s medical restrictions.
The Commonwealth Court concluded that based upon the credible testimony of the District Manager and the Vocational Expert, Employer presented sufficient evidence to establish that it did not have an open and available position for Claimant.
Once an employer has presented evidence that it did not have any available positions, a Claimant may rebut that evidence by facts demonstrating that “during the period in which the employer has or had a duty to offer a specific job, the employer is or was actively recruiting for a specific job vacancy that the employee is capable of performing” or “the employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing, which the employer intends to fill.” 34 PA Code Section 123.30 (f).
Here, Claimant did not establish by evidence that employer was actively recruiting for a specific job vacancy or that employer had posted the existence of a specific job vacancy. Specifically, Claimant’s vocational expert Mr. Young, testified that employer was recruiting for various positions on his website. However, the Judge found his testimony not credible because Mr. Young “did not visit the website until sometime between April 26, 2009 and April 29, 2009”, which was after the filing of the Modification Petition. More important, the WCJ found that Mr. Young did not actually know what positions Employer was recruiting for on its website, nor did he know the locations of the jobs.” Based on Mr. Young’s incredible testimony, we conclude that Claimant failed to rebut Employer’s evidence that it did not have any available positions for the Claimant.
Finally, the Commonwealth Court addressed Claimant’s argument that the vocational expert was required to contact Employer about open and available positions at its retail stores that Claimant was capable of performing prior to conducting the Labor Market Survey. The Commonwealth Court disagreed noting that its review of relevant Decisions, the Act, and the Department’s regulations fails to find support for that proposition. The Commonwealth Court noted that it could not conclude that the vocational expert was required to contact Employer about open and available positions prior to conducting the Labor Market Survey. Accordingly, the Labor Market Survey was valid and proper.
NOTE: This case may no longer be relevant given the Supreme Court’s recent Decision in the Phoenixville Hospital Case.
