Can My Employer Reduce My Pa Workers’ Comp Benefits by Saying I Can Work Elsewhere When They Have a Job I Can Do?

Claimant was employed as a clerk with Josten’s, Inc in State College, PA. On January 18, 2010, she injured her right shoulder while working, and has been receiving workers’ compensation wage loss benefits for total disability (total earning loss caused by the work injury) through Phoenix Insurance Company.

Employer filed a Modification Petition based on a Labor Market Survey conducted by Mitchell Schmidt, M.Ed. WCJ Robert Vonada in Altoona, PA was assigned to the petition. Claimant argued that Jostens, Inc. had a specific job vacancy available at the time of the vocational interview that Claimant could perform, which was not offered to her, and that the Labor Market Survey could not be used to decrease or stop her workers’ compensation benefits.

Mr. Schmidt had a vocational interview with Claimant, who told Mr. Schmidt she could work if it did not involve pulling or lifting with her right arm. Mr. Schmidt then found clerk, customer service, clerical, front desk, designing, receptionist, hostess and cashier jobs with other local employers which he felt Claimant could perform. However, Claimant felt she could perform the personalization clerk job that Jostens was seeking to hire someone to perform.

Dr. Gregory Billy and Dr. William Prebola testified on behalf of Josten’s, Inc. They said that Claimant could perform the jobs found by Mr. Schmidt with other employers.

WCJ Vonada denied Josten’s Modification Petition, as there was a position with Josten’s between the time of the issuance of the 306(b)(3) Notice Of Ability To Return To Work Form (issued before the vocational interview) and filing of the Modification Petition that Claimant was capable of performing, and it was not offered to Claimant. The Judge ordered that Claimant’s workers’ compensation wage loss benefits were to continue at the total disability rate. The Judge further found an unreasonable contest, and ordered the payment of attorney fees of $2,947.50 to the injured worker, along with costs of litigation.