Significant Pennsylvania Case Summaries
IF A CLAIMANT RESIDES OUTSIDE OF PENNSYLVANIA, THE USUAL EMPLOYMENT AREA FOR THE PURPOSES OF A LABOR MARKET SURVEY IS WHERE THE INJURY OCCURRED, NOT WHERE CLAIMANT RESIDES
Riddle v. W.C.A.B. (Allegheny City Electric Inc.)
No 54 WAP 2008
(Pa. Supreme Ct. October 22, 2009)
The claimant was injured in August 2000, in the course and scope of his employment, in Pittsburgh, PA, where claimant worked. Although claimant worked in Pittsburgh, PA he was a resident of West Virginia. The injury was accepted as right shoulder tendonitis and eventually expanded by way of Decision to include subacromial impingement with bursitis, rotator cuff tear, and tear in the long head of the bicep tendon in the right shoulder area. On March 9, 2005, the Employer filed a Modification/Suspension Petition based upon a labor market survey. The labor market survey identified jobs in Wheeling, West Virginia, Washington, Pennsylvania and the State of Ohio. Claimant held an Ohio’s driver’s license that listed his father’s address as his own. The WCJ granted the Modification Petition and reduced the claimant’s benefits effective September 2, 2005. Claimant appealed and raised the issue of whether the vocational expert correctly performed the LMS by focusing on Wheeling, WV and not Pittsburgh, PA (where the injury occurred). The WCAB affirmed so claimant appealed to the Commonwealth Court who also affirmed the Decision of the WCJ to grant the modification. The PA Supreme Court granted claimant’s request to hear the case and ultimately decided that the WCJ had incorrectly granted the Modification Petition. The Court looked to the clear language of the Workers’ Compensation Act and determined that for the purposes of determining earning power for an out of state claimant, the usual employment area where the injury occurred shall apply. Therefore, the Employer should have performed the labor market survey in Pittsburgh, PA as claimant was an out of state resident and was injured in Pittsburgh, PA. According to the Court, the Employer does not have the discretion to enlarge the search for jobs to multiple other areas even if these additional areas overlap with the area where the injury occurred.
When having a labor market survey performed on a claimant that resides outside of PA, remember to request that the vocational expert focuses the job search on the area where the claimant was injured.
Any questions regarding this case can be directed to Carrie E. Smyth at (717) 441-7068 or csmyth@tthlaw.com.
Reutzel v. Workers’ Comp. Appeal Bd. (Allegheny Gen. Hosp.)
2009 Pa. Commw. LEXIS 1536
(Pa. Commw. Ct. Oct. 20, 2009)
Claimant appealed the Order of the Workers’ Compensation Appeal Board affirming the WCJ’s decision to deny Claimant’s Petition to reinstate Claimant’s partial disability benefits. Claimant was injured in 1996 and then again in 1997. By 2006, Claimant had received 500 weeks of partial disability benefits. Thereafter, Claimant filed a Reinstatement Petition, alleging that she received 500 weeks of partial disability benefits only for the 1996 injury and that she was entitled to another 500 weeks of partial disability benefits for the 1997 injury. Claimant argued that the periods of partial disability benefits for the injuries should not run concurrently but consecutively.
The Court found that Claimant had returned to work immediately after the 1997 injury with the same restriction imposed for the 1996 injury. Claimant was already receiving partial disability benefits for the 1996 injury when she sustained the 1997 injury and Claimant had the same ability to earn wages and suffered no additional wage loss. In affirming the Appeal Board’s Order, the Commonwealth Court held that neither the Workers Compensation Act nor the case law supported Claimant’s argument that she is entitled to two consecutive 500-week partial disability benefits for the two work injuries. Further, Claimant’s argument that her partial disability benefits for the 1997 injury should be suspended until she exhausted her benefits for the 1996 injury entirely ignored the different treatment of partial and total disability by the Workers’ Compensation Act and directly contravened the language of Section 306(a.2)(7) and 306(b)(1) of the Act specifically limiting the period of partial disability benefits to 500 weeks for any injury or its recurrence, regardless of any change in disability. Accordingly, the Order of the Workers’ Compensation Appeal Board was affirmed.
Any questions regarding this case can be directed to Randy S. Metz at (215) 564-2928 or rmetz@tthlaw.com.