To Apply or Not Apply? Recent Developments in Labor Market Surveys
In Pennsylvania, when an injured worker receives workers’ compensation benefits, the insurance carrier may require the injured worker to meet with a vocational “expert.” After the meeting, the vocational expert will prepare a “labor market survey.” The insurance carrier may then use that document to try to reduce or stop the injured worker’s benefits.
A recent decision by the Pennsylvania Commonwealth Court, Smith v. WCAB (Supervalu Holdings Pa, LLC), A.3d, No. 796 C. D. 2016 (Pa. Cmwlth. 2018), addressed the parties’ rights and obligations when an insurance company files a petition based on a labor market survey. In that case, the Commonwealth Court held that “a modification of benefits based on proof of earning power associated with specific positions cannot be granted without evidence in the record that the specific positions remain open until such time as the claimant (injured worker) is afforded a reasonable opportunity to apply for them.” Furthermore, the Court held that the employer, and not the injured worker, bears the burden of proving all elements of the modification petition, including whether or not jobs remain available for a reasonable time after being identified by a vocational expert. Nonetheless, the Court further concluded that, “if a claimant offers evidence about his or her experience in pursuing the jobs identified in the labor market survey, that evidence can be considered on the issue.”
Furthermore, the Court explained that evidence that the injured worker submitted an application – regardless of whether such evidence is submitted by the injured worker or the employer – does not establish that a prospective job was open and available at the time that the injured worker applied. However, the Court also held, “testimony of an in person application during which information is exchanged, evidence of follow-up communications between a claimant and a prospective employer which prompt acts or inaction by a claimant, or evidence relating to an interview, may be a sufficient basis for a finding (that a job was open and available).” Applying that rule of law to the Smith case, the Court concluded that the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB) had mistakenly held that it was the injured worker’s burden to prove that all five jobs identified in the labor market survey were not open. Likewise, the Court held that the WCJ erred in concluding that the three jobs for which the injured worker had applied, but had not been interviewed, were open and available. No evidence existed to support that conclusion. However, the Court further determined that the WCJ had properly determined that the positions with AM Guard Security – for which the injured worker had applied and been interviewed– were properly utilized by the WCJ to modify the injured worker’s benefits. The Court stated that the fact that the employee had been interviewed supported the conclusion that the jobs were open and available. Thus, it was proper to modify the injured worker’s benefits based on an earning capacity calculated on the two, AM Guard Security jobs.
Prior to Smith, most attorneys who represent injured workers would advise their clients to promptly apply for all jobs identified in a Labor Market Survey. This may still be the best course of action, but doing so may now incur additional risk. If an injured worker applies for a job and is interviewed for that job, but is not hired, the mere fact of his interview can be used to satisfy the employer’s burden of proof. Without such evidence, the employer might not have been able to satisfy its burden of proof. To receive advice on the best course of action in your case, feel free to contact our firm.