The November 2013 holding in Phoenixville Hospital v. WCAB (Shoap) rippled through the employer bar causing much consternation. The employer's bar feared substantial hearsay obstacles to the imputation of an earning capacity and a lack of clarity concerning whether they were now obligated to find permanently restricted workers new jobs under forbidden Kachinski-styled placement and referral activity. While these fears manifested to a certain degree, it is clear, that Phoenixville also reaffirmed that the Kachinski obligations of good faith still apply to the employee; a good-faith obligation, often ignored under the standard labor market survey / earning power assessment option offered by the 1996 amendments to the Act.
Phoenixville requires an injured worker be given notice with an accompanying "reasonable opportunity to apply for the open and available position." It does not stand for finding the person a job or generating an offer of employment. If an employer embraces Phoenixville holding and uses it to produce more refined employment opportunities for an injured worker, doing so can offer a better case for modification or suspension of wage loss benefits to a presiding Workers' Compensation Judge rather than simply pointing to the hackneyed list of employment openings at the local telemarketer or motel desk.
Keep your selected vocational expert in close contact before initiating the process and stress the importance of written employer feedback regarding ensuring your vocational expert offers prompt service of accurate contact information for positions upon employee's counsel and employee; know when the employee received notice of the job opening; if and when the employee applied; when the position was filled; whether the employee interviewed; and whether the employee acted unreasonably or in bad faith with excessive pay demands, hours, or self-defeating attitudinal displays during an interview.
When Phoenixville is construed properly, the employer can still use the 306(b) provisions of the 1996 Act amendments to credibly and reasonably place an employee's ongoing entitlement to wage loss benefits into jeopardy and more importantly, test the good faith response of the employee.
By: Jeffrey T. Strittmatter