I once had an employer ask me to show them where in the Pennsylvania Workers' Compensation Act it states that they have to bring an injured worker back to work. I kindly directed them to Rules and Regs -- Title 34. Labor and Industry, Part VII. Bureau of Workers’ Compensation, Chapter 123. General Provisions Part II, Subchapter D. Earning Power Determination, section 123.301 Employer job offer obligation. Here’s a link to this particular subchapter.
The Rules and Regulations state that if a job is open with the liable employer, that the injured worker is capable of performing, “…the employer shall offer that job to the employee prior to seeking a modification or suspension of benefits based upon earning power.” Basically, if you’re a Pennsylvania employer who is currently hiring for a position that an injured worker is vocationally and physically suited to perform, then the employer has an obligation to offer that job to the employee.
If the employer offers the job and the injured worker fails to respond to it or refuses it, then the employer’s duty has been satisfied and they can seek relief for refusal of a valid job offer and/or pursue evidence of earning power through a labor market survey/earning power assessment. If the employer has more than one opening that the injured worker could perform, the employer has the right to choose which job to offer.
Just for clarification – “…prior to seeking a modification or suspension of benefits based upon earning power” means that the employer/insurance carrier cannot seek relief through an earning power assessment/labor market survey if there is suitable job available to the injured worker at their pre-injury place of employment. Proving earning power basically means that an employer/insurance carrier utilizes the services of a vocational counselor to provide proof that there is work that exists in the usual employment area of the injured worker that he/she is vocationally and physically suited to perform.
This earning power assessment consists of a vocational interview with the injured worker to review his/her work history, vocational skills and any other relevant attributes pertaining to their employability. Some examples are military experience, education level, prior jobs held, or any certifications that the injured worker may possess. The vocational counselor then conducts a labor market survey to see what types of jobs exist in the market that the injured worker could perform, taking into consideration their work abilities. Once the survey is completed, the vocational counselor determines realistic earnings for these jobs for the injured worker.
Once the labor market survey/earning power assessment has been completed, the report is provided to all parties involved and the employer/insurance carrier may decide to file a Petition to Suspend or Modify the injured worker’s wage benefits based upon this projected earning capacity. The purpose of this evidence is to demonstrate that there is work available to the injured worker and based upon their responsibility to find work within their restrictions, the employer/insurance carrier should be relieved of some or all of their ongoing wage benefits (depending on the amount the injured worker is deemed capable of performing).
Many employers are unaware of how their ability to offer modified duty impacts their claims. If the earning capacity identified by the vocational counselor is less than what the injured worker previously earned (their average weekly wage for their WC claim), then the employer/carrier is responsible for 66 2/3% of the difference, which is called Temporary Partial Disability Benefits, or TPD. In Pennsylvania, an injured worker is entitled to 500 weeks of TPD benefits. If 2/3’s of the gap in earning capacity is equal to $150 x 500 weeks, the employer/carriers is still responsible for nearly $75,000 in wage benefits.
The intention of this post is not to make readers experts on any aspect of the Pennsylvania Workers’ compensation Act, nor is it to be construed or utilized as legal advice. The intent of this post is to make employers aware of the potential avenues that they may have to travel, if they are unable to bring an injured worker back to their pre-injury earning capacity in Pennsylvania. As with everything in insurance, each case is fact-specific and any decisions should be reviewed with an experience claim representative and/or legal counsel.
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