Vocational Process

September 22, 2023

Injured Worker in PA Must Prove Nonexistence of a Job at Employer

Since the 1996 changes to the Pennsylvania Workers’ Compensation Act (“Act”) took place, workers’ comp insurance carriers have had the ability to use Labor Market Surveys [LMS] (also known as Earning Power Assessments [EPA]) to reduce or stop the payment of workers’ compensation benefits. We have previously addressed the “prerequisite” of showing no positions exist with the time of injury employer.

A recent case (albeit an unreported case) shows this reading of the law remains the state of the law in PA. In Strzyzewski v. Extensis II, Inc. (Workers’ Compensation Appeal Board), the time-of-injury employer could not be located, so (obviously) there was no determination that no job existed with that employer. Instead, the vocational counselor hired by the workers’ comp insurer simply performed a LMS, and a Petition for Modification or Suspension was filed.

Ultimately, the Petition for Modification or Suspension was granted by the Workers’ Compensation Judge (“WCJ”), and the benefits of the injured worker were reduced. The WCJ was not persuaded by the argument by the injured worker that the workers’ compensation insurance carrier could not obtain a LMS until they had established whether a suitable position was available with the time-of-injury employer. The WCJ found that the vocational counselor made a “good faith effort” to locate the employer, and that was sufficient.

May 15, 2008

Job Referrals Must Be Actually Available to PA Workers’ Compensation Claimant

by Glenn Neiman

Experienced Pennsylvania workers’ compensation attorneys frequently are involved in cases where an injured worker, no longer able to perform his or her pre-injury job, is referred to other jobs in the community by a vocational counselor, at the request of the workers’ compensation insurance carrier. As lawyers who limit our practice to PA workers’ comp, we love to see cases reduce the power of the workers’ compensation insurance carriers to abuse this process.

Recently, on May 12, 2008, the Commonwealth Court of Pennsylvania decided PA Department of Corrections v. WCAB (Zvara). In this case, the claimant, who does not drive, was referred to five jobs, which were said by the workers’ compensation insurance carrier to be within the physical limitations of claimant. Claimant did not apply for any of the jobs (Often, the failure to apply for any of the referred jobs is nearly certain to cause the case to be lost). In this situation, however, the Court found that the workers’ compensation insurance carrier did not meet its burden of proof. Specifically, the workers’ compensation insurance carrier failed to prove public transportation was compatible with the hours of the offered jobs, or that the prospective employers would modify the hours of the jobs to accommodate the schedules of public transportation. The mere fact that the referred jobs were accessible by public transportation, without more, was not enough. Since the workers’ compensation insurance carrier did not meet its burden of showing jobs “available” to the claimant, the burden never shifted to claimant, to prove he or she applied for each job in good faith. As such, the Petition for Modification was denied.

May 6, 2008

Employer Need Not Show Job Not Available to Injured Worker in PA

by Glenn Neiman

One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

April 16, 2008

Workers’ Compensation Vocational Counselor Regulations in PA

by Glenn Neiman

Under certain circumstances, injured workers in Pennsylvania are required to submit to a vocational evaluation (a meeting with a vocational counselor). Until recently, the injured worker would usually then hear nothing . . . until a petition was filed by the workers’ compensation insurance carrier to reduce the injured workers’ benefits based on a “Labor Market Survey” (Basically a listing of jobs said to be available to the injured worker). This “hiding” of the vocational evidence made it more difficult for the injured worker to fight the petition.

In June, 2007, new regulations were passed by the Pennsylvania Bureau of Workers’ Compensation, requiring vocational counselors to provide a copy of their initial report, as well as any additional reports, including the Labor Market Survey, to the injured worker, and his or her attorney within certain time frames. This makes the battle to protect an injured worker’s benefits much more fair.

When a workers’ compensation insurance carrier requests the injured worker have a vocational meeting, this should be a clear signal to the injured worker that his or her benefits are in jeopardy. It is at this time, if not before, when an injured worker should seek a workers’ compensation attorney.