In the past, IREs were requested by insurance companies and employers after an injured employee received 104 weeks, or two years, of total disability compensation. The purpose of an IRE was to limit the duration of employer/carrier liability for wage loss claims.
The IRE was used to determine the claimant’s level of whole body impairment; if a doctor appointed by the Bureau of Workers’ Compensation but paid by the carrier determined that this level fell below 50%, the claimant would be categorized as only partially disabled. The amount of compensation would not be changed, but a limit would then be imposed on how long partial disability compensation had to be paid. Each claimant is limited to 500 cumulative weeks of disability compensation per claim.
IREs, however, have been determined unconstitutional after a recent Pennsylvania Supreme Court ruling on Protz v. WCAB (Derry Area School District) on June 20, 2017. One of the questions that has arisen as a result of this ruling is how insurance companies will now limit their exposure. They have a backup plan: labor market surveys, also known as earning capacity assessments.
Labor Market Survey Process
A labor market survey is intended to determine whether the claimant has any current earning capacity based on job listings in the general employment region where the claimant lives. The labor market survey is conducted by a vocational expert who is hired by the insurance company. Keep in mind that the objective of the insurance company is to pay out as little as possible to the claimant to maximize their profits. The vocational counselor is working for the insurance company, and no matter how pleasant the title may sound, he or she is not interested in helping the Claimant find real work opportunities.
Before a labor market survey is performed, the insurance company/employer is supposed to send the claimant a Notice of Ability to Return to Work. This is a standard document that will notify the claimant that the carrier has evidence that they can work and it will identify the work capacities and physician who set those capacities. These medical limitations are typically those determined by a physician working for the insurance company. The vocational counselor will usually then request a meeting with the claimant to obtain information that is relevant to a job search such as education, age, experience, residual productive skills, and perceived physical limitations. Note that for the protection of the claimant, this interview should usually take place in an attorney’s office with the attorney present.
Outcome of a Labor Market Survey
The outcome of a labor market survey is a hypothetical projection of how much the claimant can potentially make if they go back to work in one of the jobs the vocational counselor has decided they are suitable for. The hypothetical earning power can be used against the claimant.
How Labor Market Surveys Impact Claimants
The labor market survey is used as a evidence to support a petition to modify or suspend compensation benefits. This is done through litigation initiated by the attorney for the insurance company. Ultimately, a Workers’ Compensation Judge will decide whether (s)he believes the Claimant has earning power and whether benefits are changed. Even if the claimant applies for every one of the positions identified and still be unable to find employment, the Judge could still reduce their benefits. Now that IREs are not available, insurance companies are likely to increasingly use this tool to attempt to minimize the benefits they are required to pay out.
Potential Injustice in Labor Market Survey System
There are inherent weaknesses in the labor market survey system. The survey is based on theoretical situations that may or may not reflect real conditions. It often does not consider the medical opinions of any doctors outside those paid by the insurance company. These surveys have no reliable way of establishing whether the job openings are available or if the potential employer would even be interested in hiring the claimant. This can be particularly devastating to claimants caught in a recession economy. These jobs often include positions such as overnight security work or telemarketing which often have a high turnover (and for good reason).
There is Hope
A skilled, experienced worker’s compensation lawyer knows how to fight back against these tactics. There are specific rules that must be followed before a claimant’s benefits can be successfully reduced or stopped and there are common pitfalls and mistakes that insurance companies make. These can be complicated cases and only a seasoned attorney is equipped to guide you through. A labor market survey doesn’t have to decimate your compensation.
Fighting Back with Hillsberg
If you believe that your worker’s compensation benefits may be threatened by a Labor Market Survey, contact Hillsberg Law as soon as possible. I have been handling worker’s comp cases in the state of Pennsylvania since 1995, and worker’s comp is all that I do. Contact me today for a free consultation and let me fight for every penny of compensation that you deserve.