Diehl v. WCAB (IA Construction)

In Diehl v. Workers' Compensation Appeal Board (IA Construction), 972 A.2d 100 (Pa. Cmwlth. 2009) (en banc), the Court recently explained the Act's requirements relevant to petitions to modify benefits filed by employers. Employers file modification petitions when they seek to change the benefit status of a claimant, or when employers seek to reduce the amount of benefits that a claimant receives. Id. at 103. "A claimant who is injured and not capable of working is initially entitled to total disability benefits, because disability under the Act is synonymous with a loss of earning power." Id. An employer who files a modification petition to change a claimant's benefits from total to partial may succeed if the employer establishes that the disabled claimant has "earning power." Id. This type of proceeding is governed by Section 306(b)(2) of the Act, which explains earning power, in relevant part, as: (2) "Earning power" shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe's residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth. If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply. If the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe. In order to accurately assess the earning power of the employe, the insurer may require the employe to submit to an interview by a vocational expert who is selected by the insurer and who meets the minimum qualifications established by the department through regulation. 77 P.S. 512(2) Diehl further explained: By showing the availability of suitable employment that the claimant is capable of performing, located through a labor market survey, an employer may reduce the amount of a claimant's benefits from total to partial disability. Alternatively, the employer may show that the claimant can work by referring the claimant to specific job openings. Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). Once the claimant's earning power is established under either method, the claimant's total disability benefit amount will be reduced to a partial disability benefit. To satisfy the Kachinski test, the employer must refer the claimant to actual jobs that are within the claimant's capabilities. However, with the post-Kachinski addition of Section 306(b)(2) to the Act in 1996, an employer may also use "expert opinion evidence," i.e., a labor market survey, to establish job availability. 77 P.S. 512(2). Since 1996, employers may use either the Kachinski test or the labor market survey to reduce the amount of a claimant's disability benefit from total to partial. Diehl, 972 A.2d at 103, n.6.