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Phoenixville Hospital …Whispers of Kachinski?

One of the many landmark decisions that impacted the worker’s compensation practice was Kachinski v. WCAB (Vepco Construction Co.), a 1987 Pennsylvania Supreme Court decision that governed the standard for a return to work following a work accident.  Kachinski required an employer that wanted to offer an injured worker employment following a work injury to produce medical evidence of a change in condition and referrals to open jobs within the occupational category for which the injured worker had been given medical clearance (sedentary, light duty, etc). The employee then had to demonstrate that he acted in good faith following through on the job referrals, and if the referral failed to result in a job, the injured worker’s benefits were to continue. Kachinski essentially stood for actual job placement. In 1996, with changes to the Worker’s Compensation Act, employers were able to show earning power, not by actual job placement, but through the testimony of an expert (vocational expert) who performed a labor market survey.  This has become the norm in modification and suspension petitions litigated to establish earning power of the injured worker, and whether the injured worker actually could get hired or receive the job located in the labor market survey was not a relevant position.

In Phoenixville Hospital v WCAB (Shoap), a 2013 Supreme Court case, the Court determined that whether an injured worker does get hired is in fact relevant.  An injured worker’s response to the jobs in a labor market survey is now relevant, important and can be the basis for defeating a modification/suspension petition based upon a labor market survey. The Court wrote that it was not sufficient for an employer to simply identify jobs; instead, the existence of “meaningful opportunities” must be shown. The jobs located in the labor market survey demonstrates there are jobs within the injured worker’s limitations and provide the injured worker with notice of the existence of these jobs.  As a result, the injured worker has a serious opportunity to secure employment.  Accordingly, the injured worker should be able to present evidence as to whether he applied for the jobs and the result.  The Court wrote,” It would be directly relevant for claimant to show that an employer rejected the claimant’s job application precisely because the work is incompatible with the claimant’s residual production skills, education, age, or work experience.”

Even though the Supreme Court in Phoenixville Hospital reversed the decision of the Commonwealth Court, it insisted Kachinski was not being revived.  Under a Kachinski analysis, the details of the job/physical requirements, and the injured worker’s response, are critical factors in a modification/suspension petition.  An injured worker would need to show the presiding judge good faith efforts to respond to the job offer. Despite the protestations of the Supreme Court, Phoenixville Hospital now makes these factors again critical from the injured worker’s perspective.  By utilizing the jobs located during the labor market survey, an injured worker can bolster their case by presenting evidence to the judge of efforts made to follow up on a job lead (phone calls, interviews, applications, etc), or even to show that the job is not available as alleged by the vocational counselor. What was no longer relevant is now an interesting tool available to the injured worker.

Jonathan B. Koutcher, Esquire
PearsonKoutcher, LLP
Email Jon: Jon@pearsonkoutcherlaw.com