PA Workers’ Comp Insurer Can Use Labor Market Survey Without Proving No Job Available at Employer

In 1996, the Pennsylvania Workers’ Compensation Act was amended, in a piece of legislation known as Act 57. In many ways, the law became much less friendly for the injured worker in PA. One of the changes was the creation of the “Labor Market Survey (LMS),” also known as an “Earning Power Assessment (EPA).”

While the old law had required the insurance carrier to show the existence of an actual job which would be available to the injured worker in order to reduce or suspend an injured worker’s benefits, Act 57 allows the insurers to use general, hypothetical listings instead (somewhat like they do for Social Security Disability). While this certainly smacks of unfairness, the legislation also required an employer to first offer a job to the injured worker, if available, before the insurer could resort to the LMS process. This made sense, of course, since a return to the Employer would be most beneficial to all.

Exactly how hollow a requirement this is has now been fully explained by the Commonwealth Court of Pennsylvania in Reichert v. Workers’ Compensation Appeal Board (Dollar Tree Stores). After the injury, the injured worker had a LMS performed. A Petition for Suspension shortly followed.

While the matter was being litigated before the Workers’ Compensation Judge (WCJ), the Employer testified that nobody asked him to see if any jobs were available (but, there were none available, he then added). The vocational counselor who prepared the LMS agreed that he never spoke to the Employer and only spoke to the insurer, to confirm no jobs were available, after the LMS was done. The WCJ found both credible and granted the Suspension Petition. This was affirmed by the Workers’ Compensation Appeal Board.

Upon appeal to the Commonwealth Court of Pennsylvania, the decision was affirmed. The Court found no harm in the fact that the Employer/insurer totally ignored the spirit, if not the letter, of the PA Workers’ Compensation Act. The idea, of course, is to try to place the injured worker back with the place where he or she had previously worked. And that would need to be done before trying the LMS route at all. It is an absurd result to say that the Employer/insurer met their requirement, when they admit they did not even check for an open job until the LMS was already done. This sends a clear message that the “checking for a job” is mere lip service, and none is even expected.

In fact, the Court proudly notes that, “we have held that an employer does not have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition.” Or, said the other way around, the injured worker bears the burden to prove a job exists with the Employer, though it is the Employer who is obviously the best party to have the ability to prove or disprove such a fact. We are at a loss to explain the fairness in placing such an impossible burden on the injured worker, when showing there is no available job would be so easy for the Employer. To us, the spirit, and the letter, of the law requires exactly what the Court contends it does not.

The Court then notes that the injured worker could always point to a specific job the Employer was actively looking to fill. Since many of our clients lack psychic powers, and law firms do not have limitless investigative budgets, the Court should know that the ability to point to a specific available job is very difficult for the injured worker to prove.