Pennsylvania Supreme Court: “A job must be open and available to count in a Labor Market Survey.”

Pennsylvania Supreme Court: “A job must be open and available to count in a Labor Market Survey.”

The Pennsylvania Supreme Court has recently issued a ruling that will help injured workers who are faced with labor market surveys by a vocational expert hired by the workers compensation carrier. In Phoenixville Hosp. v. Workers’ Comp. Appeal Bd., 81 A.3d 830 (Pa. 2013), the court concluded that a job must be actually open and available in order for it to be used to stop or reduce a claimant’s benefits.

Under the Worker’s Compensation act, the carrier has the right to hire a vocational expert and compel the injured worker to meet with that expert. The expert gathers information about the worker’s employment history, educational background, interest and skills. The expert then analyzes the skills the worker has that could be transferred to another job. Then, a review is made of the local job market to identify positions which the injured worker has the physical ability to perform, along with the vocational ability to qualify for the job. Insurance companies often file petitions to stop or lower and injured worker’s compensation based on the opinion of the vocational expert that work exists that the worker is capable of performing.

Claimant’s attorneys have often recommended to their clients to apply for the jobs which are found by the insurance company vocational expert. Not every vocational expert has been willing to notify the injured worker about the jobs as they become available. However, when our firm has been able to get the expert to agree to notify our clients about the job, we have urged them to apply. We felt this was often the best test of whether the job actually existed for our clients and also demonstrated good faith by our clients. The Supreme Court, in Phoenixville Hospital, has now essentially adopted our position. The court has concluded that an injured worker’s application for the job is relevant evidence that has to be considered by the workers compensation judge in a modification petition based on a labor market survey. If the worker applies for the position and is not hired, this can be evidence sufficient for a workers compensation judge to find that the work does not exist such that benefit should be lowered or stopped. This case also clarifies that a job has to not just exist in an abstract sense in that someone is working such a position. The position actually has to be open such that an injured worker could actually get hired for the job. As a result, this case has a favorable outcome for injured workers in the state of Pennsylvania.