Opinion

Smith v. Workers' Compensation Appeal Board (Supervalu Holdings PA, LLC)

  • 177 A.3d 394
Court
Commonwealth Court of Pennsylvania
Filed
Jan 5, 2018
Status
Published
Author
McCullough
On the bench
Leavitt, Jubelirer, Simpson, Brobson, McCullough, Wojcik, Cosgrove
Cited by
8 cases
Authority
More cited than 13.5%

first citing A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013); and then citing Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014)

How later courts described this case

  • first citing A & J Builders, Inc. v. Workers’ Comp. Appeal Bd. (Verdi), 78 A.3d 1233 (Pa. Cmwlth. 2013); and then citing Furnari v. Workers’ Comp. Appeal Bd. (Temple Inland), 90 A.3d 53 (Pa. Cmwlth. 2014)

Written by the judges who cited it.

The opinion

CONCURRING OPINION BY

JUDGE McCullough . I concur in the result reached by the Majority. However, I write separately to address the Majority’s discussion of this Court’s holding in Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance Co.), 176 A.3d 374 , 2017 WL 6043509 (Pa. Cmwlth. 2017) and the burden in these cases.

Contrary to'the'Majority, we did not hold in Valenta that “if a claimant offers evidence about her experience in pursuing the jobs identified in a labor market survey, the* evidence can' be considered against her in the overall evaluation of the availability of the jobs.” 176 A.3d at 384-85 , Rather, we merely held-that, under Phoenixville Hospital v. Workers’ Compensation-Appeal Board (Shoap), 623 Pa. 25 , 81 A.3d 830 (2013), a claimant must be permitted the opportunity to present evidence regarding his/her experience in applying for jobs identified by an ¡employer as being open and- available. Further,-in describing the-burden in Valenta¡ we held that “Employer maintains an .ongoing burden to show , that the jobs remained open and available,” and the claimant “can present evidence to the contrary.” 176 A.3d at 386 . I am concerned that the present Majority opinion may be construed as shifting the burden to the claimant to establish that any identified jobs are not open and available, an outcome which is not directed by either Valenta or Phoenixville Hospital.

President Judge Leavitt joins this opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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