by Pete Gough, Esq.
The Labor Market Survey process is routinely used by workers' compensation insurance companies to try and reduce an injured worker's weekly benefit.
The workers' compensation insurance company hires a vocational expert to interview the injured worker to assess their education and job history. From there, the vocational expert comes up with hypothetical "jobs" that the injured worker might be qualified in the area. These include everything from a gas station attendant to a clerk at a Verizon store.
"A Claimant indisputably may show that the employer's labor market surveys were simply based on unsubstantiated, erroneous, conflicting, false or misleading information and evidence regarding the claimant's actual experience with the employers identified in the LMS may lend support for establishing contentions along these lines….Because an employer is required to establish substantial gainful employment that exists….it would be directly relevant for a claimant to show that an employer rejected the job application precisely because the work is incompatible with Claimant's residual productive skill, education, age or work experience."
Holding 2: Jobs Must Remain Open
"… the jobs identified by the employer's expert witness, which are used as the employer's proof of earning power under section 306(b) , (must) remain open, until such time as the claimant is afforded a reasonable opportunity to apply for them….Claimant must be afforded the opportunity to submit evidence that she did not obtain employment because the position identified by the expert was already filled by the time the claimant had hada reasonable opportunity to apply for it.
Holding 3: If The job Is Already Filled, It Does Not Exist.
Holding 4: Kachinski Is Not Dead
The court specifically would not state that it was abandoning Kachinski in a 306(b) analysis. It points out the burden is different, but seemed unwilling to give up its prior seminal decision.
It especially seems to be a hybrid Kachinski model in that the employer's good faith is directly at issue.
Holding 5: Workers' Compensation Judge has Significant Discretion
As they should, the Workers' Compensation Judge has a great deal of discretion. This decision protects that discretion with respect to weighing evidence to see if jobs "exist" and were actually available.
Phoenixville Hospital v. WCAB (Shoap)
The Labor Market Survey process is routinely used by workers' compensation insurance companies to try and reduce an injured worker's weekly benefit.
The workers' compensation insurance company hires a vocational expert to interview the injured worker to assess their education and job history. From there, the vocational expert comes up with hypothetical "jobs" that the injured worker might be qualified in the area. These include everything from a gas station attendant to a clerk at a Verizon store.
Following the job match, the workers' compensation insurance company then files a petition with a workers' compensation judge to reduce the injured worker's benefit based on jobs that are "available" in the local area.
Our office routinely litigates these types of cases, arguing that the "available" jobs don't really exist, are not really open and availabe, or, that the injured worker is unable to actually perform the designated occupation.
We feel the Phoenixville case provides more support for our arguments and, more importantly, puts the power back into the hands of the Workers' Compensation Judge to actually decide the case.
Holding 1: Employee May Attack the Foundation of the Labor Market Survey
"A Claimant indisputably may show that the employer's labor market surveys were simply based on unsubstantiated, erroneous, conflicting, false or misleading information and evidence regarding the claimant's actual experience with the employers identified in the LMS may lend support for establishing contentions along these lines….Because an employer is required to establish substantial gainful employment that exists….it would be directly relevant for a claimant to show that an employer rejected the job application precisely because the work is incompatible with Claimant's residual productive skill, education, age or work experience."
Holding 2: Jobs Must Remain Open
"… the jobs identified by the employer's expert witness, which are used as the employer's proof of earning power under section 306(b) , (must) remain open, until such time as the claimant is afforded a reasonable opportunity to apply for them….Claimant must be afforded the opportunity to submit evidence that she did not obtain employment because the position identified by the expert was already filled by the time the claimant had hada reasonable opportunity to apply for it.
Holding 3: If The job Is Already Filled, It Does Not Exist.
Holding 4: Kachinski Is Not Dead
The court specifically would not state that it was abandoning Kachinski in a 306(b) analysis. It points out the burden is different, but seemed unwilling to give up its prior seminal decision.
It especially seems to be a hybrid Kachinski model in that the employer's good faith is directly at issue.
Holding 5: Workers' Compensation Judge has Significant Discretion
As they should, the Workers' Compensation Judge has a great deal of discretion. This decision protects that discretion with respect to weighing evidence to see if jobs "exist" and were actually available.
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Peter J. Gough is an associate at QuatriniRafferty and concentrates his practice in the area of workers’ compensation, exclusively representing injured workers.
Born in Brooklyn New York and a graduate of The University of Buffalo, Peter J. Gough came to the Pittsburgh area to achieve his J.D. from Duquesne Law School. He fell in love with Western Pennsylvania and has been practicing law, primarily civil litigation and workers’ compensation law here since 1990. 
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