Penn State Shows that Worker had Chance to Work at Planet Fitness for Modification Petition

Case File

Penn State's identifying and open and available job within a worker's vocational and physical capabilities demonstrated an increase in the worker's earning power. Simply Research subscribers have access to the full text of the decision.

Case

Walk v. Pennsylvania State University, No. 1325 C.D. 2024 (Pa. Commw. Ct. 07/07/25, unpublished)

What Happened

A worker at Penn State sustained a work-related injury in the nature of a second degree burn to her left forearm. Penn State accepted the injury. The worker did not return to her time-of-injury position as a floater in one of the university's dining halls, a position that paid $572 per week.

Penn State issued a Notice of Ability to Return to Work, indicating that, based on an independent medical examination, the worker was able to return to work with some limitations. Penn State also had the worker undergo a vocational interview with a vocational expert and identified five vocationally suitable positions for the worker.

Penn State filed a Modification Petition, seeking to reduce the amount of the worker's benefits due to the general availability of work. The worker filed an answer denying the petition's allegations.

A workers' compensation judge found that the worker was able to perform the position of check-in clerk at Planet Fitness at an average weekly wage of $540 and modified the worker's compensation benefits to $21.33 per week.

The worker appealed to the Workers' Compensation Appeals Board, which upheld the WCJ's grant of the Modification Petition.

The worker appealed to court, arguing that Penn State did not meet its burden of proving her "earning power."

Rule of Law

As announced in Rebeor v. Eckerd, 976 A.2d 655 (Pa. Commw. Ct. 2009), an employer may file a modification petition when it seeks to change a worker's benefit status or reduce a claimant's benefit amount.

Pennsylvania law details that earning power shall be determined by the work the employee is capable of performing and shall be based upon expert opinion evidence, which includes job listings with state agencies, private job placement agencies, and advertisements in the usual employment area.

What the Court Said

The court upheld the WCAB's affirmation of the WCJ's ruling, finding that Penn State met its burden of proof on the Modification Petition using the Planet Fitness position. Looking to Readinger v. Epler Masonry, 855 A.2d 952 (Pa. Commw. Ct. 2004), the court reasoned that it was "consistent with legislative intent that [an] expert be permitted to include jobs from any one or a combination of" sources listed under state law "so long as those jobs are actually available to the claimant."

Workers' Comp 101: In Pennsylvania, partial disability status “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.”

Such was the case with the worker, according to the court, as the vocational expert "used her own knowledge and connections" with potential employers to identify available positions with accommodations.

According to the court, Peen State established that it identified a job that was open and available to the worker for a reasonable period of time.

Verdict: The court affirmed the Board's ruling and grant of the Modification Petition.

Takeaway

Demonstrating an open and available job within a claimant's vocational and physical capabilities can demonstrate an increase in the claimant's earning power under Pennsylvania law for purposes of an employer's modification petition.

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