THE END OF CHEAP GAS - WHITHER EARNING POWER ASSESSMENTS AND JOB DEVELOPMENT
As this column is prepared, fuel prices have pulled back from the record price in excess of $140.00 per barrel of crude oil. Gasoline prices have declined 40 to 50 cents. However, the era where even $2.50 per gallon gasoline prices were seen appears to be permanently over. What, if anything, does this do to Earning Power Assessments/Labor Market Surveys or Kachinski Job Development?
For many years, vocational experts have used a 25- to 35-mile radius for potential employment for both job development and Labor Market Surveys. The Courts have not directly addressed a particular geographic limit. Instead, the Courts have fashioned the question as whether other people in the area in which the Claimant lives would work in the area of the potential job. Dilkus v. WCAB (John F. Martin & Sons), 543 Pa. 92; 671 A.2d 1135 (Pa. 1996), Westerwald Pottery Corp. v. WCAB (Watters), 692 A.2d 1145 (Pa. Cmwlth. 1997). What will the price of fuel do to the distance people are willing to travel, particularly for minimum wage employment?
Recently, the Internal Revenue Service increased the Federal Mileage Allowance to 58.5 cents per mile. This is the amount the IRS determines to be the cost of operating a vehicle in the nation at large. The mid-year adjustment reflected the run up in fuel prices as a result of $140.00-a-barrel oil.
Consider the expenses of vehicle operation on a minimum wage job at the edge of the distances typically used by vocational counselors for job development or Labor Market Surveys. If someone made $7.25 per hour for an eight-hour day, he/she would earn $58.00 per day. If the employee had a 70-mile round trip, vehicle expense at the IRS allowance would equal $40.95 per day. This equates to 70.6% of gross wages per day. Let's back down to a 60-mile round trip. This would equal a vehicle expense per IRS guidelines of $35.10 per day. This means 60.5% of gross wages would be tied up in vehicle expense. Let's back it down further to a 50-mile round trip a day. Gross vehicle expense would equal $29.25. This equates to over 50% of gross wages being utilized to get to and from the job.
Query: Will workers in any community where there is no public transportation infrastructure accept employment that would feature costs of this nature?
As the expense of traveling to work continues to rise, will the geographic areas employees are willing to travel continue to retract?
This author suggests that scrutiny be given to the opinions of the defense vocational expert regarding appropriate job venues in Earning Power Assessments and Kachinski Job Development. While these factors may be less important in major metropolitan areas with public transportation infrastructures, they may play a significant role in determining what is an appropriate employment radius in our rural communities.
COMMONWEALTH COURT RULES NO PARTIAL DISABILITY FOR BILATERAL SPECIFIC LOSS
In Allegheny Power Service Corporation and Acordia Employment Service, Inc. v. WCAB, (Cockroft), 242 C.D.2007, 2008 Pa. Cmnwlth 330 (July 22, 2008), the Commonwealth Court has addressed the aftermath of a return to work by the injured claimant who suffers from bilateral loss of use injuries. David Cockroft (hereinafter, Claimant) suffered severe electrical burns on January 19, 1995. He had multiple surgical procedures resulting in the amputation of his right arm slightly below the elbow. He suffered significant injuries to his left hand, with the third and fourth fingers amputated. The left index finger was transplanted to the outside of his hand because of damage to his tendons. However, the operation was not successful and he had little to no use of the transplanted finger.
The Claimant returned to work with the time-of-injury employer in May 1997. At that point, the Employer unilaterally stopped paying Workers' Compensation benefits. Claimant filed a Penalty Petition and Challenge Petition. The Workers' Compensation Judge, based on a Stipulation by Employer, concluded that the case was controlled by Section 306(c)23 of the Workers' Compensation Act which states : "Unless the Board shall otherwise determine, the loss of both hands or both arms or both feet or both legs or both eyes shall constitute total disability to be compensated according to the provisions of Section 306(a) of the Act." The Judge found that total disability payments were warranted even in the face of earnings. Benefits were reinstated.
Employer later filed a Modification Petition, alleging Claimant was not totally disabled. Employer alleged Claimant's disability was limited to the specific loss of a hand and a forearm such that Claimant could receive a total of 705 weeks of total disability benefits only. Furthermore, it requested a modification of benefits based on actual earnings. Defendant offered medical testimony and vocational testimony in support of each position. The medical testimony established that the Claimant was extremely limited in his ability to perform gainful activities. The Defendant's vocational testimony was rejected by the Workers' Compensation Judge as "ludicrous". Claimant produced medical testimony that he was effectively totally disabled. While the physician acknowledged the Claimant had returned to work with the Employer, he noticed that he was only able to be employed because he "moved into a special position with the same Employer at a job that he is familiar with". The treating physician found Claimant "profoundly impaired from performing activities of ordinary daily living." The Claimant also produced his own vocational expert who concluded that if the Claimant could not continue working at the special position with the time-of-injury Employer, he would not be able to work anywhere.
The Workers' Compensation Judge found the Claimant continued to be totally disabled under Section 306(c)23 of the Act. The Employer was not entitled to a credit for post-injury earnings.
The Board affirmed the Judge's Decision, leading to the appeal to Commonwealth Court.
The Employer argued that the Board erred in interpreting Section 306(c)23. The Employer claimed that the benefits payable under 306(c)23 could be modified pursuant to 306(a). The Commonwealth Court dismissed this argument finding that such an interpretation would render "meaningless" other 306(c) language which noted that awards under the Section are the exclusive remedy allowed for the described injury.
The Court cited a long line of cases supporting its determination, including Reid; Turner; Lempe v. Lucci, 275 Pa. 217, (119 A. 132) 1922 and Acme Markets, Inc. v. WCAB (Hopiak), 562 A.2nd 419 (Pa. Cmwlth. 1989), Pa. Denied, 525 Pa. 648, 581 A. 2d 574 (1990).
The Employer also argued that the administrative agency was required to consider the Claimant's earning capacity for cases under Section 306(c)23. The Commonwealth Court declined to adopt this view, noting that the discretion conferred upon the WCAB by the legislature in the language of the Section. The Court noted the Supreme Court decision in Richard C. Symons v. National Electronic Products, Inc., 414 Pa. 505, 200 A.2d 871(Pa. 1964) had already dealt with the issue. In the Symons case, the Supreme Court had noted the discretion afforded the WCAB in the statutory language "unless the Board shall otherwise determine". The Supreme Court found "the legislature has vested a discretionary power in the Board. That discretion may be removed or diminished only by the Legislature."
Applying Symons, the Commonwealth Court determined that the WCAB properly awarded total disability benefits. Therefore, in cases with bilateral specific loss, the employer is not automatically entitled to modification of benefits if a claimant returns to work.
This case was decided by a 4-3 panel of the Court. Expect an appeal to the Supreme Court.
