Jobs Listed in Labor Market Survey Must be “Available” to Injured Worker in PA

Back in 2010, we discussed the case of Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). In this decision, the Commonwealth Court of Pennsylvania found that jobs listed in a Labor Market Survey (LMS) did not have to actually be available, since they were merely examples of jobs existing in the community. Therefore, the Court found the fact the injured worker applied for all of the jobs and was not offered employment by any was irrelevant. Upon further appeal, however, the Supreme Court of Pennsylvania, with the help of the Pennsylvania Association for Justice, has now reversed this decision.

As you may recall, a LMS containing five jobs was prepared in this case. The injured worker testified that she applied for each position listed in the LMS and received no offers of employment. When the matter was litigated before a Workers’ Compensation Judge (WCJ), this testimony was found credible. Therefore, the WCJ denied the Petition for Modification filed by the workers’ comp insurance carrier. Since the jobs were not offered to the injured worker here, they were found not to be available to her. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Commonwealth Court of Pennsylvania, however, reversed, holding that the availability of these exact positions was irrelevant. As long as the jobs were open and generally available when the vocational expert located them, the LMS was sufficient, said the Court. Whether the injured worker actually was able to apply for, and get, those jobs was of no importance.

The Supreme Court of Pennsylvania then accepted appeal, and recently reversed this decision. Noting, “the proof required to reduce or suspend a claimant’s benefits must rest upon the existence of meaningful employment opportunities, and not the simple identification of jobs found in want ads or employment listings,” the Court found jobs listed in a LMS must be open and potentially available to the injured worker. Thus, the experience of the injured worker in applying for such positions can cast doubt on whether the positions were actually available (or whether they were even vocationally appropriate). Moreover, since the goal of the law is to provide injured workers with gainful employment, the positions in an LMS should “remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.” All of this means the testimony of the injured worker is highly relevant to whether jobs in a LMS are sufficient to support a Petition for Modification.

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