By Staff Report
Feb. 2, 2010
Kraft Foods Inc. failed to provide sufficient evidence of available alternative employment when it attempted to reduce a workers’ compensation claimant’s partial disability benefits, a Pennsylvania appeals court ruled Friday, January 29.
The Commonwealth Court of Pennsylvania in Kraft Foods Inc. and ESIS-Wilmington WC v. Workers’ Compensation Appeal Board upheld an appeal board conclusion that evidence establishing a claimant’s earning power must consider the claimant’s capabilities and evidence of actual job listings.
The decision comes after a February 2004 accident in which claimant Leonard Anterola injured his right knee while employed by Kraft Foods as a utility worker. He received compensation benefits.
But in 2007, Kraft filed a petition seeking to modify those benefits alleging “work was generally available” for the claimant,” court records show. A workers’ compensation judge allowed the modification, but the employer appealed when the appeal board overturned the judge’s finding.
Kraft argued that under a Pennsylvania law requiring employers to provide evidence that jobs are available, it could rely on a testimony from a rehabilitation counselor that, in general, entry-level jobs were available in the labor market and that the claimant’s experience, education and sedentary restrictions qualified him for work paying $7 to $10 per hour.
The employer’s argument lacks merit because the law requires employers to show “existing actual jobs are open and available,” the appeals court ruled. That burden does not change when an employer relies upon a claimant’s own evidence, the court said.
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