How Labor Market Surveys Can Affect Your Workers’ Comp Award
If you receive workers’ compensation because you were injured at work and cannot return to your job, that does not necessarily mean that you are unable to do any job. Although you may have physical limitations, you might be able to perform the duties of less demanding jobs. For example, if you are able to sit for an hour at a time, a desk job might be suitable as long as you can take breaks as needed.
The Workers’ Compensation Act includes a provision that allows your employer to file a petition to modify — that is, reduce — the amount of benefits you receive based on a labor market survey performed by a vocational counselor and their estimation of your earning power. The survey is conducted by a vocational expert retained by your employer and includes jobs listed with the state Labor Department and private job placement agencies and advertised in your usual employment area. The surveyed jobs you are deemed capable of performing must be compatible with your:
- Residual productive skills
- Work experience
Those jobs must remain open long enough to give you a reasonable opportunity to apply for them. An interview with the vocational expert may be required to accurately assess your earning power before the labor market survey is presented.
The employer has the burden of proving all of the foregoing, but you may refute items on a labor market survey and attempt to show that they are based on false, faulty or misleading information. For instance, if a job is filled before you have an opportunity to apply for it, it does not exist. Likewise, if you are not qualified for a job, then it is not evidence of your earning power and should not be used to modify your benefits. Our attorneys retain our own vocational experts to assess the accuracy of the labor market surveys and testify about any inaccuracies.
You may also challenge the labor market survey by applying for the jobs in good faith. However, your efforts can be a double-edged sword. If you learn that a job is filled or that you cannot do it, you can testify about your experience in a hearing on the petition to modify. However, if you receive an interview for a job that you can do, that may prove that the job is available, even if you are not hired.
If you are receiving workers’ compensation and your employer files a petition to modify your benefits, you should seek legal counsel immediately. Contact a skilled Pennsylvania workers’ compensation attorney at Rudberg Law Offices, LLC in Pittsburgh by phone at 412-488-6000 or online.