Background
Steven Waldman injured his lower back in January 2020 while serving as a volunteer firefighter for Limerick Fire Department. The department accepted the injury and paid workers’ compensation benefits. A physician later concluded that Waldman could perform medium-duty work subject to restrictions, and a vocational specialist conducted a labor-market survey to assess jobs she believed fit his experience and physical capacity.
The specialist identified six electrician-related positions with advertised weekly pay ranging from $900 to $1,730. She confirmed details about duties and application procedures, sent the listings for medical approval, and supplied Waldman with job-lead letters. Averaging the advertised wages, she calculated earning power of $1,220 per week, exceeding Waldman’s preinjury average weekly wage.
Waldman applied for all six positions but received no offers; only one employer requested his résumé. A workers’ compensation judge nevertheless credited the physician and vocational specialist, found the jobs open and available, and suspended benefits as of the labor-market survey date. The Workers’ Compensation Appeal Board affirmed. The Commonwealth Court considered whether the listings and applications constituted substantial, competent evidence of actual earning power.
The Court’s Holding
A divided Commonwealth Court affirmed in an unreported memorandum by Judge Stacy Wallace. Under Section 306(b)(2) of the Workers’ Compensation Act, an employer may establish earning power through expert opinion based on employment opportunities that exist in the usual employment area and that the claimant is capable of performing. The court defers to the workers’ compensation judge on credibility when substantial evidence supports the findings.
The majority held that the vocational testimony and Waldman’s own applications were enough. The specialist described the positions, contacted employers, matched the work to the medical restrictions, and provided application instructions. Waldman was able to apply to each listing. Nothing showed that a position had already been filled before he had an opportunity to apply or that the advertisements were fictitious. His failure to receive an offer did not prove that the positions were unavailable when identified.
President Judge Renée Cohn Jubelirer dissented. She reasoned that submitting an online application, without proof that an employer was genuinely hiring, did not establish an open and available job. The dissent highlighted the modern prevalence of “ghost jobs”—listings maintained without a present intention to hire—and would have required stronger evidence connecting the advertisements to real vacancies. The full commissioned court voted under its internal procedures after the original panel divided two to one.
Key Takeaways
- A credited labor-market survey can establish earning power even when the claimant applies for every listed job and receives no offer.
- The employer’s vocational expert should verify duties, pay, physical demands, location, and a workable application process.
- An unsuccessful application does not by itself prove that an advertised position was unavailable when the survey was prepared.
- The dissent would demand evidence that online listings represent genuine vacancies, reflecting concern about modern ghost-job practices.
Why It Matters
Waldman exposes a developing proof problem in Pennsylvania workers’ compensation litigation. Labor-market surveys increasingly rely on online advertisements, while hiring platforms may leave stale listings online or collect résumés without an immediate vacancy. The majority treated verified listings and an opportunity to apply as sufficient; the dissent would test actual hiring intent more rigorously.
Employers and vocational experts should preserve screenshots, dates, employer contacts, and confirmation that a vacancy existed. Claimants should document responses, rejection messages, removed postings, and evidence that an employer was not hiring. Although unreported, the divided decision offers a roadmap for building—or attacking—the evidentiary foundation of an earning-power assessment.
The majority did not require proof that Waldman would actually be hired. Earning power concerns realistic opportunity and capability, not a guaranteed offer. The decision may influence cross-examination of vocational witnesses: who confirmed the opening, when confirmation occurred, whether interviews were underway, and whether the posting remained active. Those facts can distinguish an accessible position from a merely searchable listing. Claimants should preserve automated acknowledgments and later rejection messages, while employers should document direct confirmation from hiring personnel. The evidentiary contest is likely to turn on contemporaneous records rather than a witness’s general confidence that an internet advertisement represented a real vacancy.