Proving that Work is Available for Injured Employees

Workers Compensation Disability Benefits Information

By: John J. Stanzione

An employee injured in Pennsylvania is often unable to return to his or her regular job with the employer because of the severity of the work injury.  The employee will receive workers compensation disability benefits during his absence from employment.  The workers compensation disability benefits paid to such injured employee generally equal two-thirds (2/3) of the employee’s pre-injury gross wages (up to a maximum amount determined by state law).  Such workers compensation disability benefits are not taxable.

Some legal scholars have argued that the Pennsylvania Workers Compensation Act imposes an obligation on the employer to return the employee to work in a position which would accommodate the employer’s physical restrictions.  However, recent changes to the Act have lessened any obligation of the employer to actually find and place an injured employee in alternative employment.  Employers have issued form “Notices” to injured employees advising the employee that a doctor has released them to some form of work and further advising the injured employee of his or her obligation to look for available employment.

The changes to the Act have allowed an employer to hire “vocational consultants” to locate and identify jobs that are available in the local community and that match the injured workers physical capabilities and vocational experience and skills.  These vocational consultants issue reports known as “Labor Market Surveys” which outline “available” jobs found through employment listings, want ads and online employment sites.   If a Judge finds that the Labor Market Survey is a legitimate report of work available to the injured worker, the Judge could modify or suspend the workers compensation disability benefits of the injured worker based upon the wages that the listed jobs would pay.  This could occur even though there was no attempt to place the injured employee in any of the jobs listed within the Labor Market Survey.

Whether a job listed within the Labor Market Survey is truly “available” to the injured worker has been the subject of much discussion. On November 21, 2013, the Pennsylvania Supreme Court sought to clarify this issue in the case of Phoenixville Hospital v. Workers Compensation Appeal Board (Shoap).  In that case, the injured employee applied for each and every job listed within the employer’s Labor Market Survey and even went on an interview for one of the positions.  However, the employee was not hired by any of the listed employers.  The injured worker argued that the jobs listed within the Labor Market Survey were not available to her because she was not hired by any listed employer despite her best efforts.  The Supreme Court ruled that any modification or suspension of an injured employee’s workers compensation benefits must be based upon “meaningful opportunities” for the injured worker’s employment.  The Court ruled that a Workers Compensation Judge must provide the injured worker with the opportunity to present evidence regarding her attempts to obtain employment with the employers listed within the Labor Market Survey and based upon those attempts whether such jobs were truly “meaningful” opportunities for employment.

If you have been injured at work and are receiving workers compensation disability benefits, it is likely that at some point the employer will attempt to suspend or modify those benefits based upon a Labor Market Survey.  You should call our office to discuss your rights under the law and give us the opportunity to protect any disability benefits to which you are lawfully entitled.

Contact Personal Injury / Workers Compensation attorney John Stanzione at
610-701-4415 or by