Commonwealth Court Excuses Employer From Performing Labor Market Survey To Get Suspension Upon Claimant's Move Out Of United States

The Commonwealth Court issued its decision in M. Blong v. WCAB (Fluid Containment, et al.), a case I posted on in connection with the Supreme Court's grant of appeal in Motor Coils MFG/WABTEC, v. WCAB (Bish). These are cases where the claimant was released to return to work with restrictions, but the Claimant has moved out of state.

The twist in these cases is the amendment to Section 306(b)(2) that provides when the Claimant does not reside in the Commonwealth, earning power can be shown using a labor market survey in the usual employment area where the injury occurred. In both of these cases the Employer could have filed for modification or suspension based on a labor market survey of jobs in Pennsylvania.

In Bish, the Employer made a job available at the Employer's facility. The Commonwealth Court denied modification or suspension because the job was not local to the Claimant as required by Kachinski. The Supreme Court granted the Employer's petition for appeal.

In Blong, no work was made available and there was no labor market survey. The Claimant had moved to New Zealand. In prior litigation I denied a petition for termination, but found the Claimant was capable of working with restrictions.

I suspended benefits based on Smith v. WCAB (Dunhill Temporary Systems), 725 A.2d 1285 (Pa. Cmwlth. 1999). In Smith the Claimant's benefits were suspended when he joined the Peace Corps and relocated to Africa. I was convinced a labor market survey in the Mt. Union, Pennsylvania area would be "irrelevant and fruitless" in the words of the Commonwealth Court in Smith. The Board and the Court affirmed.

The Commonwealth Court said the critical factor is removal. The Court held the Claimant was as removed from the workforce as he would be if he was incarcerated or retired. In effect, the Claimant "quit" the Mt. Union, Pennsylvania job market, so that the Employer doesn't have to show job availability.

Under Kachinski and Bish the Court could have analyzed whether the move was in good faith. There was no evidence it was not -- Mr. Blong's wife is a native of New Zealand.

In Bish, the Supreme Court may address how the amendment to Section 306(b)(2) and its interaction with Smith affects the Kachinski requirement that available work must be local to a claimant who has moved out of state in good faith. Employers may not be excused from conducting the labor market survey in all of these cases. The Constitutional right to travel as stated in Shapiro v Thompson, 394 U.S. 618 (1969) may even be implicated.