December 8, 2009

“Locating”
Earning Power
in Pennsylvania

By Kevin L. Connors

Riddle me this: your employee sustains a work-related injury, receives workers’ compensation benefits mandated by the Pennsylvania Workers’ Compensation Act, continues receiving compensation benefits for several years, voluntarily relocates out of the sylvan compensation sanctum of Pennsylvania, crossing state lines through the mailed facility of uninterrupted compensation payments, while slowly recovering, years later, from the work injury, such that the injured employee is found to have sufficiently recovered from the work injury to be physically capable of performing some level of full-time, light-duty work; the question being what geographic anomaly must be applied to the gleeful irony of “earning power”, such that the Pennsylvania employer is entitled to petition for a modification of compensation benefits from temporary total to temporary partial disability?

Proving the age old adage, “Location, Location, Location,” yes, that enigmatically reckless thought can now be punctuated with the head-banging finality of the Pennsylvania Supreme Court’s recent ruling in Riddle v. WCAB (Allegheny City Electric), indelicately decided on October 22, 2009.

It is, of course, as they almost always are, a decision decadently dependent on principles of statutory construction, tied to the plain and unambiguous meaning of a statute being given the full force and effect of legal precedents as old as Hammurabi, resulting in the Supreme Court holding that Section 306(b)(2) of the Act requires what it says it requires, which is recited for refreshment purposes, as follows:

(2) “Earning Power” shall be determined by the work the employee is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the employee is able to perform his previous work or can, considering the employee’s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employee lives within this Commonwealth. If the employee does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply. If the employer has a specific job vacancy the employee is capable of performing, the employer shall offer such job to the employee. In order to accurately assess the earning power of the employee, the insurer may require the employee to submit to an interview by a vocational expert who is selected by the insurer and who meets the minimum qualifications established by the department through regulation. The vocational expert shall comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses.”

77 P.S. § 512 (1) – (2).

Riddle questions whether the statutory utilization of “shall” is an absolute statutory command.

Authored by Madame Justice Greenspan, Riddle is a classic textbook challenge, essentially questioning whether the statutory utilization of “shall” is either an absolute statutory command, versus a simple statutory suggestion.

The emphatic answer given to that question by the Supreme Court is that “shall,” in legal parlance, is “mandatory”, and always has been, and apparently still is so, even when loosely used by the Pennsylvania General Assembly.

If “shall” means “shall”, as the Pennsylvania Supreme Court has concluded, how is it then possible for the employer/insurer in Riddle to think that “shall” only meant “well, maybe”?

In defense of the employer/insurer, the allegorical facts in Riddle illustrate an illogical vocational vacuum in the “earning power” provisions of Act 57, evoking the cryptic run-on thought tripping the statute fantastic at the outset of this demon-spawned article.

And that evisceration of statutory logic is that it makes absolutely no sense, other than that it would seem to be simpler, and certainly probably less expensive, for the employer/insurer to prove job availability in the “usual employment area” that the Claimant has no continuing connection to, other than that the area was the “scene of the crime”, as it is the statutory nexus from which compensation benefits were spawned.

The Claimant was injured in Pittsburgh, he was paid workers’ compensation benefits, and, the Claimant was living in Wheeling, West Virginia, when the employer/insurer initiated an expert vocational assessment.

In Riddle, the Claimant was injured in Pittsburgh, his claim was accepted as compensable, he was paid workers’ compensation benefits as required by the Act, and, whether through relocation or socio-cultural enigma, the Claimant was living in Wheeling, West Virginia, when the employer/insurer initiated an expert vocational assessment of the Claimant to assess the Claimant’s “earning power,” ultimately resulting in the employer/insurer securing an expert vocational opinion that the Claimant did, as most injured workers do, possessed “earning power”, that was predicated on there being jobs generally available for the Claimant within his residual productive skill, age and education, work experience, and physical capabilities.

The “jobs” were in three distinct geographic areas, with the primary focus of the expert “earning power” assessment being that there were five positions available for the Claimant in Wheeling, West Virginia (59.17 miles from Pittsburgh), two positions available in Washington, Pennsylvania (30.1 miles south of Pittsburgh), and several positions also available in the State of Ohio.

No job was identified as being available for the Claimant in Pittsburgh.

Not one single job was identified under the “earning power” assessment as being available for the Claimant in Pittsburgh, Pennsylvania, where Claimant had been injured.

After the workers’ compensation judge granted the employer/insurer’s Modification Petition, finding that the employer/insurer had sustained its burden of proving that the Claimant had “earning power”, such that the Claimant’s compensation benefits were converted from temporary total to temporary partial disability benefits, with the compensation payments being reduced in reliance upon “earning power”, the Claimant appealed to the Appeal Board, which affirmed the granting of the Modification Petition.

The Claimant then appealed to the Commonwealth Court, essentially arguing that the workers’ compensation judge had no jurisdiction to grant the modification and to reduce his compensation benefits, as the “earning power” assessment could not be predicated on “earning power” jobs that were not generally available, for a non-resident compensation beneficiary, in “the usual employment where the injury occurred”, herein being limited to Pittsburgh.

Concluding that the employer/insurer was not precluded from predicating job availability on jobs in West Virginia and Ohio, the Commonwealth Court affirmed the judge’s decision, with the Supreme Court granting allocatur, to determine “may an employer meet his burden of proof to justify modification of an award of workers’ compensation benefits to an injured non-resident employee, based on an EPA which focused on the location of the employee’s residence, as opposed to the location where the injury occurred?”

The Supreme Court rejected every argument advanced by the employer/insurer in Riddle.

In no uncertain terms, the Supreme Court rejected every argument advanced by the employer/insurer in Riddle, with the employer/insurer arguing that the statute was sufficiently flexible to allow the employer/insurer to choose the geographic area, or areas, that would seemingly serve the rehabilitative purpose of the Act, being restoration of earning power, and rehabilitating injured workers to return to gainful employment, ends which might be best served through the vocational fiction of finding work in the “usual employment area”, where the Claimant actually now lives, as opposed to being required to find job availability in an “employment area” to which the Claimant’s only connection is/was the place where he/she was originally injured.

Section 306(2)(b) was enacted largely at the behest of employers seeking the geographic protection of Pennsylvania, when their injured employees migrate out of Pennsylvania to states where local vocational experts lack familiarity with the requirements of Kachinski.

Such geographic subtleties aside, the fatalistic result in Riddle begs a question of seemingly first impression, although of questionable deliberation, given the impatient speed with which the Supreme Court dispatched the matter, begging the larger question of why this challenge was ever raised, when Section 306(2)(b) was enacted largely at the behest of employers and insurers, seeking the geographic protection of Pennsylvania, when their injured employees, whom no one seems capable of proving are fully recovered, migrate out of Pennsylvania, relocating for personal or social reasons to states and jurisdictions where local vocational experts would often lacked familiarity with the hypertechnical requirements of Kachinski, the pre-Act 57 model for modifying compensation benefits in reliance upon vocational evidence.

And that begs the question that if you know that all you need to look for were/are available jobs in Pittsburgh, for an injured employee now living 59.17 miles from Pittsburgh, in Wheeling, West Virginia, with some vocational confidence that the injured employee either will not, or cannot, for any number of reasons, actually attempt to apply for or seek employment with any of the positions generally available in Pittsburgh, the question then simply becomes, “for who, for what?” (with apologies to Ricky Waters, former Eagles running back and philosophical legend) was this vocational evidence compiled in Riddle?

Although it is seemingly easy to question the single-mindedness of the employer/insurer in Riddle, it is no less true that what the employer/insurer sought to vocationally prove, is much closer to actually effectuating the humanitarian, or remedial, and rehabilitative purposes of the Act, as the employer/insurer in Riddle sought to marry job availability with geographic proximity, seemingly forgoing a vocational motivation simply tied to benefit reduction.

In a legal truism of eternal clairvoyance, “shall” inflexibly means just that.

Questions concerning the practical implications of the day-to-day administration of workers’ compensation claims should be directed to our Workers’ Compensation Department.

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