Reichert v. Workers' Compensation Appeal Board
2013 Pa. Commw. LEXIS 462
| Pa. Commw. Ct. | 2013Background
- Claimant sustained a work injury as a truck driver on April 2, 2001.
- Employer filed a modification petition on March 30, 2009 alleging work was generally available within Claimant’s capabilities as of March 10, 2009.
- WCJ credited Employer’s district manager (Joka) that no open positions within Claimant’s restrictions existed from July 28, 2008 to March 10, 2009.
- Employer’s vocational expert (Dieckman) concluded jobs could not be offered consistent with Claimant’s restrictions after reviewing Claimant’s medical limitations.
- Claimant’s vocational expert (Young) disagreed and argued Dieckman failed to contact Employer, and that jobs were available within radius that matched Claimant’s restrictions.
- Board affirmed WCJ’s decision that Employer did not have open positions within Claimant’s restrictions during the relevant period, thus upholding the modification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Employer met its prima facie burden under §306(b)(2) and §123.301. | Reichert: Employer didn’t show no open positions within stores. | Dollar Tree: Credible evidence showed no suitable positions within restrictions. | Yes; Employer proved no open positions within Claimant’s restrictions. |
| Whether Dieckman’s failure to contact Employer voids the labor market study. | Reichert: Dieckman must contact Employer before surveying. | Dollar Tree: no authority required contacting employer prior to survey. | No; labor market survey valid without pre-survey employer contact. |
| Whether Claimant adequately rebutted the employer’s showing of no vacancies. | Reichert: Employer actively recruiting or posting vacancies; rebuttal evidence. | Dollar Tree: no active recruitment or postings proven. | Claimant failed to prove active recruitment or postings; rebuttal insufficient. |
Key Cases Cited
- South Hills Health Sys. v. Workers’ Comp. Appeal Bd. (Kiefer), 806 A.2d 962 (Pa.Cmwlth.2002) (defines employer’s burden under §306(b)(2) and §123.301; shifting burden to employer to show no vacancies or to prove earning power)
- Rosenberg v. Workers’ Comp. Appeal Bd. (Pike Cnty.), 942 A.2d 245 (Pa.Cmwlth.2008) (employer not required to prove nonexistence of vacancies at own facility; claimant can prove vacancy existed to shift burden)
- Kleinhagan v. Workers’ Comp. Appeal Bd. (KNIF Flexpak Corp.), 993 A.2d 1269 (Pa.Cmwlth.2010) (affirms Rosenberg approach to modification burden)