Third Circuit Clarifies Standard for Proving Job Availability

A Louisiana Third Circuit Court of Appeal partly reversed a ruling by a workers’ compensation judge due to application of an incorrect legal standard for proving job availability.

Claimant suffered a back injury, the facts of which are undisputed. Employer paid Claimant temporary total disability benefits, but later converted Claimant’s benefits to SEBs and reduced the rate, after vocational rehabilitation was performed and seven jobs were identified for Claimant.  Claimant filed a Form 1008, Disputed Claim for Compensation, challenging the reduction of his benefits and seeking penalties and attorney fees.

At trial, it was noted that Claimant applied to each of the jobs that were identified in the labor market survey, and that he also applied to over 100 other positions.  He did not receive any job offers.  When the vocational counselor was deposed, she testified that Claimant was employable, but that Claimant was seeking employment in a “stiff” job market where his competitors did not have injuries or need modifications.  After trial, the workers’ compensation judge determined that although jobs were identified for Claimant within his working restrictions, there was no showing that the jobs were available to Claimant at the time that his benefits were reduced from temporary total disability to SEB.  As a result, the judge determined that Claimant had a zero dollar wage earning capacity and was entitled to SEB at the temporary total disability rate.  The judge determined that Claimant was also entitled to ongoing vocational rehabilitation. No penalties or attorney fees were awarded for the termination of vocational rehabilitation or the reduction of benefits.  Employer appealed on the basis that the judge applied the improper standard for job availability.

Employer, citing the correct legal standard, alleged that “an actual position available for that particular job at the time claimant received notification of the job’s existence must be proved.”  Employer noted that it was improper for the WCJ to look to the job availability at the time of benefit reduction, instead of the job availability at the time of notification.  On appeal, the Third Circuit agreed that the incorrect standard had been used.  The Court held that the proper legal standard required a determination of whether the job was available at the time that Claimant was notified of the job’s existence.  The Third Circuit determined that Employer had met its burden of showing that two jobs were available to Claimant when the counselor provided notification of the jobs to Claimant.  The case was remanded to the WCJ to determine the applicable residual wage earning capacity.


Clark v. Sedgwick CMS