Labor Market Surveys in Pennsylvania serve as a tool for insurers to modify or suspend an injured worker’s wage loss benefits, by proferring evidence that the worker has an earning power, based upon identified jobs in the local marketplace that allegedly fall within the worker’s physical and vocational capabilities. Unlike the prior Kachinski standard, wherein an insurer had to offer an actual job for which the worker then had the burden of attempting/pursuing the job in good faith, Labor Market Surveys use an academic approach- and one that is unfair to injured workers in Pennsylvania, to establish an earning power. I use the term academic because the jobs are not actually offered to injured workers- they are just a sampling of allegedly available jobs that exist. On the other hand, I think it is good practice to advise injured workers in Pennsylvania to apply for the positions. Rarely do the jobs evolve into actual employment, but it shows good faith by the Pennsylvania injured worker.
I have noticed that Judges are somewhat reluctant to granting modification/suspension petitons (the type of petition/relief depends of the alleged earning power and how it compares to the injured worker’s pre-injury average weekly wage) unless the insurer’s case is virtually air tight. I think many judges realize that the pro-republican and pro-employer legislation in the 90’s went too far to the right.
Labor Market Surveys aren’t always a bad thing, however, because they can prompt legitimate settlement negotiations. Indeed, many of these cases resolve during litigation of a LMS.
I’d still prefer Kachinski– it’s just a more realistic approach to sizing up an injured worker’s true earning ability- a real job, a real application, a real methodology- as opposed to experts taking a guess as to whether a worker can withstand the new job.
To speak with an experienced Pennsylvania workers comp lawyer, email Michael W. Cardamone at Michael@cardamonelaw.com or call (215) 206-9068. Need an experienced workmans comp lawyer in Pennsylvania, call now!
