The use of a vocational expert and Labor Market Survey (LMS) to establish an earning capacity was the subject of a recent Commonwealth Court decision in Dennis Smith v. WCAB (Supervalu Holdings PA, LLC), No. 796 C.D. 2016, and filed on January 5, 2018. The decision held that the employer must prove not only that specific suitable job opportunities were open and available, when identified by the vocational expert conducting the LMS, but also that they remained open until such time as the injured worker had a reasonable opportunity to apply for them.
In this case the vocational expert did not offer any testimony that the five identified positions remained available beyond the date they were identified in the LMS. The Court found that inadequate to meet the employer's burden of proof. However, the Court then examined whether the employer's burden of proof could be met through the injured worker's actions and testimony. The injured worker had immediately applied for all five positions and actually interviewed for two of them. The Court found that submitting written or online applications was not substantial evidence that the positions remained open. This evidence by itself is ambiguous and speculative.
On the other hand, the Court determined that an in-person interview was substantial evidence to support a Workers' Compensation Judge's finding of an open and available position. In this case the two positions that the injured worker interviewed for provided the necessary evidence to allow a modification of benefits consistent with the earning capacity of only those two positions.
Comment: The use of Labor Market Surveys to prove a residual earning capacity has taken on new significance with the elimination of the impairment rating evaluation process by the Protz decision. The Pennsylvania Supreme Court in Phoenixville addressed the LMS burden of proof and allowed the injured worker to present contrary evidence that the positions identified were not open and available. The Commonwealth Court in Smith has now clarified that when an injured worker presents such evidence it can be used against the worker as well to establish that the positions remained open and available and thereby meet the employer's burden of proof.