Thomas C. Lowry, Esq. & Associates

Helpful Check List on Labor Market Survey (LMS) Issues

As we look over the past few years, we have noticed that some of our clients have been spending a lot of money on vocational “Labor Market Survey” (“LMS”) analyses – but not always getting the best results from their vocational counselor’s efforts.  Under Act 57, of the Pennsylvania Workers Compensation Act (“Act”), in certain circumstances, an “Earning Power Assessment” can be done on a claimant.  An Earning Power Assessment seeks to establish a given claimant’s potential earning ability - through the work that claimant is capable of doing (both medically and vocationally).  Further, a LMS analysis must include a detailed assessment of what 'transferable skills' a claimant has from prior experience or education, and address whether he/she could perform his or her previous work; or whether they can reasonably engage in some other type of work in their area.  There are a number of steps that every Pennsylvania vocational counselor must perform with regards to these LMS analyses.  However, many of these counselors simply do not seem to be aware of each of these issues - issues which have been developed from both the Pennsylvania case law and the PA W.C. Act itself.  The below vocational analysis (potential mis)steps must be included in every LMS report.

Labor Market Surveys:

1. Was a Notice of Ability to Return to Work form (LIBC‑757) sent out first,  prior to the filing of the Labor Market Survey Petition (Modification/Suspension); specifically advising of the medical clearance (from who that came, and when)?   Was this information specifically noted in the Labor Market Survey Report?

2. Did the vocational counselor completing the Labor Market Survey report check with the original employer about whether appropriate jobs were available (including addressing any of the potential union issues, such as union membership not being affected by a job offer or any other collective bargaining issues)?   And, did they then specifically document that there were no jobs available with the original employer in the Labor Market Survey Report? 

3. Is there a a 'proof of mailing' certificate available for slip for all vocational correspondences sent out to claimant and their counsel?

4. Was the vocational counselor's correspondence specific as to the details regarding the time, place and purpose of the vocational interview?

5. Did the Vocational Interview Petition (if one had to be filed to start litigation) list a specific vocational counsel - by name; and not just by that counselor's agency?

6. Did the vocational counselor's report specifically check all three (3) of the Act mandated job sources that must be checked for locating available jobs for the report, including, (1) job listing with the agencies of the Department; (2) private job placement agencies; and (3) job advertisements in the usual employment area?  (Section 306(b)(2)(ii))?   (Note that while this requirement seems to be becoming more relaxed by the PA courts,  it’s still good practice to have a vocational counselor check each source; especially when you’re paying for it).

7. Did the vocational counselor personally review and observe each of the referred Labor Market Survey jobs located, so as to familiarize themselves with it (in light of the deposition testimony that they may have to give); with a listing of the actual job duties and activities that would be required in the located job?  If so, was it done for your current Labor Market Survey Report or was it done at some earlier point that the vocational counselor can identify?  The details of their observations should be noted in the report.  If the vocational counselor has not done this they should take the steps to familiarize themselves with the actual job they located, preferably by personally reviewing the job being done.  (Merely listing old job sources that were actually checked at some earlier time, and billing for them as being recently located, is not so helpful.)

8. Is each referred Labor Market Survey job specifically medically approved by the physician being relied upon?   (All Labor Market Survey jobs that are located should be specifically medically approved by the physician whose testimony will be taken; as a ‘best practice’ step.  Your counselor must confirm that the approving doctor understands the type for job he/she is approving, whether sedentary, light or heavy duty in nature.).

9. Is each referred Labor Market Survey job 'vocationally' appropriate (as supported by a detailed 'transferable skilled analysis' section that clearly shows the skills that claimant has from prior jobs and experience that can be transferred to the located Labor Market Survey positions)?

10. Is the located Labor Market Survey job actually and generally available to claimant as of the time the vocational counselor has locates for the Labor Market Survey Report?  Unavailable jobs are worthless.  This issue needs to be specifically addressed by the counselor in the report, specifically because the availability of jobs is often challenged by claimant counsel.  A vocational counselor should document who - by name and position - they talked to at each employer location.
11. It is the responsibility of the  Vocational Counselor to determine if the Claimant has "actual access" to each referred Labor Market Survey job - by specifically establishing that Claimant either has a (1) a driver's license and available transportation (either a vehicle or access to reliable rides), or (2) that each referred job is  actually available because the vocational counselor has specifically completed and documented the available public transportation that a claimant could take to each referred Labor Market Survey job site.  This documentation should specifically include the bus and/or train routes; travel distance; and travel times (given the job hours that claimant will be expected to work).  This transportation analysis is the result of a Pennsylvania case from 2008,  Pennsylvania Department of Corrections / SCI Greenberg v. WCAB (Zvara).  The Zvara Court held that a Labor Market Survey Vocational Counselor must determine if a claimant has actual access to each referred job either through their own transportation or documented public transportation.  A vocational counselor that fails to properly document this information has not completed a demonstration of actual access.

NOTE: The Pennsylvania case law in the workers compensation area changes often, and updates to the law should be reviewed often.  Expect a challenge to union employees being 'Labor Market Surveyed', via the St Joseph's Container case (which, in short summation held that accrued union benefits can be unique).