Labor Market Surveys/Earning Power Assessments
The firm of Brilliant & Neiman LLC limits its practice to protecting the injured worker in Pennsylvania workers’ compensation cases. Our clients are spread throughout Southeastern and Central Pennsylvania, including Langhorne, Bristol, Philadelphia, Allentown and Hershey. You can feel confident in the representation provided by Brilliant & Neiman LLC, as our attorneys are certified as specialists in the practice of PA workers’ compensation law.
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).
Before Act 57, if a workers’ compensation insurance carrier wanted to reduce an injured worker’s benefits in PA, the insurance carrier had to refer the injured worker to jobs, which then had to be open and available to the injured worker. If the injured worker applied to these jobs, in good faith, and was not hired, the job was determined to be unavailable to the injured worker, and benefits would continue. Though this certainly seems like a realistic and fair solution to a complicated problem, the insurance industry did not feel it favored their interests sufficiently.
Bending to the will of the insurance industry, the legislature drafted and passed Act 57. This legislation, among other anti-worker things, changed the job search from the actual one described above, to the use of a general, hypothetical process instead (somewhat like what is done for Social Security Disability). Hence the LMS/EPA was born.
All that is required to be proven in an LMS/EPA is that suitable employment is generally available to the injured worker in the injured worker’s usual employment area. The injured worker is not referred to any specific job at all. The vocational expert retained by the workers’ comp insurance company just gathers data of jobs generally available in the geographic area of the injured worker. The premise is that if the injured worker wanted to look for work, these are the types of jobs the injured worker could find.
The Supreme Court of Pennsylvania has at least held that the jobs found by a vocational counselor must actually be available. This was the decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). That means that the fact an injured worker applied for the jobs, and was not hired, is relevant (though not determinative) on the issue of availability.
Notably, the law requires that the employer offer the injured worker a position, should there be an open one within the physical and vocational capabilities of the injured worker, before performing an LMS/EPA. Unfortunately, Pennsylvania appellate courts have reduced this requirement to barely more than a rubber stamp. Inquiring about an available job with the employer need not actually be done before an LMS/EPA is done, as long as no jobs are eventually determined to be available at the employer. Worse, the burden is on the injured worker to prove there is a job available with the employer (a ridiculous allocation of the burden of proof, considering that employer is the best source for this information).