Subchapter D. EARNING POWER DETERMINATIONS
Sec.
123.301. Employer job offer obligation.
123.302. Evidence of earning power.§ 123.301. Employer job offer obligation.
(a) For claims for injuries suffered on or after June 24, 1996, if a specific job vacancy exists within the usual employment area within this Commonwealth with the liable employer, which the employee is capable of performing, the employer shall offer that job to the employee prior to seeking a modification or suspension of benefits based on earning power.
(b) The employer’s obligation to offer a specific job vacancy to the employee commences when the insurer provides the notice to the employee required by section 306(b)(3) of the act (77 P. S. § 512(b)(3)) and shall continue for 30 days or until the filing of a Petition for Modification or Suspension, whichever is longer. When an insurer files a Petition for Modification or Suspension which is not based upon a change in medical condition, the employer’s obligation to offer a specific job vacancy commences at least 30 days prior to the filing of the petition.
(c) The employer’s duty under subsections (a) and (b) may be satisfied if the employer demonstrates facts which may include the following:
(1) The employee was notified of a job vacancy and failed to respond.
(2) A specific job vacancy was offered to the employee, which the employee refused.
(3) The employer offered a modified job to the employee, which the employee refused.
(4) No job vacancy exists within the usual employment area.
(d) When more than one job which the employee is capable of performing becomes available, the employer maintains the right to select which job will be offered to the employee.
(e) The employer’s duty under subsections (a) and (b) does not require the employer to hold a job open for a minimum of 30 days. Job offers shall be made consistent with the employer’s usual business practice. If the making of job offers is controlled by the provisions of a collective bargaining agreement, the offer shall be made consistent with those provisions.
(f) If the employer has presented evidence that no job vacancy exists, the employee may rebut the employer’s evidence by demonstrating facts which may include the following:
(1) During the period in which the employer has or had a duty to offer a specific job, the employer is or was actively recruiting for a specific job vacancy that the employee is capable of performing.
(2) During the period in which the employer has or had a duty to offer a specific job, the employer posted or announced the existence of a specific job vacancy, that the employee is capable of performing, which the employer intends to fill.
(g) A job may not be considered vacant if the employee’s ability to fill the position was precluded by any applicable collective bargaining agreement.
Notes of Decisions Ability to Return to Work Form; Issue Waived
Where the Claimant did not raise before the Board the issue of the employer’s failure to provide and complete Notice of Ability to Return to Work Form, the issue was not preserved for appeal and was not considered by the court. Newhouse v. Workers’ Compensation Appeal Board (P. J. Dick/Trumbull Corp.), 803 A.2d 828 (Pa. Cmwlth. 2002); appeal denied by 574 Pa. 744, 829 A.2d 311 (2003).
§ 123.302. Evidence of earning power.
For claims for injuries suffered on or after June 24, 1996, an insurer may demonstrate an employee’s earning power by providing expert opinion evidence relative to the employee’s capacity to perform a job. The evidence shall include joblistings with agencies of the Department, private job placement agencies and advertisements in the usual employment area within this Commonwealth. Partial disability applies 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 in the usual employment area in which the employe lives within this Commonwealth. If the employe does not live within this Commonwealth, the usual employment area where the injury occurred applies.
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