by Karl Voigt
A November 21, 2013 opinion from the Pennsylvania Supreme Court may have just changed the game in job availability litigation. Since 1996, workers’ compensation insurers have been able to try to reduce an injured worker’s wage loss benefits by alleging that they can return to hypothetical jobs. In an opinion published in Phoenixville Hospital v. WCAB (Shoap, Aplt) – No. 32 EAP 2011, the Supreme Court may have made that task far more difficult for carriers.
In post-1996 litigation, a carrier had to show that hypothetical jobs were available to the Claimant. The Claimant in Shoap was advised of hypothetical jobs and applied for those jobs. Because so much time had lapsed between the vocational counselor’s identification of the jobs and the notice to the Claimant, the jobs were no longer vacant. The Supreme Court did not allow for the reduction of her benefits
The Shoap case in essence maintains that the jobs must be open long enough for the injured worker to apply. In short, because most job identifications are that stale, carriers will likely have a very difficulty time meeting their burden of proof.
The text of the Court’s opinion can be found at:
http://www.pacourts.us/assets/opinions/Supreme/out/J-26-2012mo%20-%201016273591814727.pdf?cb=1
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