Workers Comp Judge in PA Can Select Highest Wage in Labor Market Survey

As discussed in previous blog entries, back in the old days (before the 1996 changes to the Pennsylvania Workers’ Compensation Act), if a workers’ comp insurance carrier wanted to cut a claimant’s worker’s compensation benefits, the carrier had to refer the person to an actual job lead. If the job lead did not result in employment, workers’ compensation benefits continued.

In 1996, the system was changed to one more like that used for Social Security Disability. Rather than sending the injured worker to an actual job opening, at an actual employer, a vocational specialist, hired by the insurance carrier, gathers theoretical information and compiles an Earning Power Assessment (EPA, also known as “Labor Market Survey,” (LMS)).

The workers’ comp insurance carrier then can take this EPA/LMS to a Workers’ Compensation Judge (WCJ), and ask that the injured worker’s compensation benefits be modified, based on the jobs shown to be “available” in the general geographic area in which the injured worker resides.

A recent decision by the Commonwealth Court of Pennsylvania, Marx v. Workers’ Compensation Appeal Board (United Parcel Service), addressed a few aspects in this process. In the this case, the WCJ selected the highest paying job and modified the injured worker’s benefits. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal, the Commonwealth Court of Pennsylvania also affirmed. The Court rejected the argument that the WCJ had to take the average wage of all of the jobs in the EPA/LMS. Rather, the Court held the WCJ can select the wage of any job the WCJ wishes, here the highest wage, since the WCJ is the final “Finder of Fact.” The Court also rejected the argument that the EPA/LMS was defective because several of the “job leads” in the EPA/LMS were either inaccurate or not available. The Court found that since the job selected by WCJ was not one of the defective ones, there was no harm. Finally, the Court said that the WCJ was correct in not considering any injuries or conditions other than those formally accepted as related to the work injury.

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