Labor Market Surveys in Workers' Compensation Under the Defense Base Act - How Your Benefits Can be Reduced

This article is made available for educational purposes only, to give you general information and a general understanding of the law, not to provide specific legal advice. This should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Along with IMEs (Independent Medical Examinations) and FCEs (Functional Capacity Evaluations), the Labor Market Survey is a common device used by insurer’s to suspend or reduce your benefits.

A labor market survey is study of the job market in your area, performed by a “Vocational Rehabilitation Specialist” who is hired by the insurance company. It is designed to be a list of jobs that you are qualified for and are physically capable of performing based on your physical limitations.

More often than not, the survey is not intended to help you find a suitable job, but rather creates an excuse to reduce your bi-weekly benefits. When you are either held off of work by your doctor, or have limitations which prevent you from returning to your original position overseas, the weekly benefit you receive of 2/3 of your weekly wages (with caps depending on the year in which you were injured) is known as Total Temporary Disability (TTD). It refers to your “total” inability to earn money.

If you become capable of working again and get a job that pays you less than your previous position you are entitled to Temporary Partial Disability (TPD). If you can work, your earning capacity isn’t “totally” gone. It is just “partially” affected. If a Labor Market Survey shows jobs you are capable of performing, the insurer may elect to reduce your benefits by what the survey indicates your earning capacity should be. Essentially, they would pretend like you already had that job (even though you don’t). This can leave you both physically unable to work and without some or all of your workers’ compensation income.

The move from TTD to TPD means more than just a change in one letter and a reduction in benefits. There is no time limitation on TTD benefits, in other words if you are totally disabled for life, you receive benefits for the remainder of your life. However, there is a five year limitation on TPD benefits. The insurer not only reduces your benefits, but starts a clock running.

In all fairness, when used correctly, Labor Market Surveys are a legitimate tool for an insurer to use. After all, if you really can work, but choose not to, then you are not “totally” disabled and shouldn’t be entitled to the same compensation as someone who is “totally” disabled. Theoretically, if used properly it can even be a free job search tool for you, your own personal Monster.com search.

Unfortunately, in many instances it is just an excuse to reduce or suspend your benefits while you are truly disabled or to leverage you into an otherwise unfair settlement. Often these Surveys lack many of the elements required by law for them to ever hold up in court.

Keep in mind, once a Claimant establishes that they cannot return to work at the job they were injured at, the burden is on the employer/insurer to establish that a “suitable” alternative job exists if they are to reduce your benefits.

To show that “suitable alternate employment” exists, a Labor Market Survey must show:

1) The existence of realistically available job opportunities,
2) within the geographic area where the employee resides,
3) which he is capable of performing considering his age, education, work experience, and physical restrictions,
4) and which he could secure if he diligently tried.

Lets pick each of those elements apart.

1) The existence of realistically available job opportunities

• The employer/insurer needs to prove the availability of real available jobs, not theoretical ones
• The employer/insurer needs to establish the precise nature, terms, and availability
• The employer/insurer needs to establish the pay scale for the jobs
• It is not enough when a position is only available for a short period of time, with no new vacancies anticipated
• Short classified ads are not good enough
• A single job opening is not sufficient, the survery must have multiple opportunities
• The employer/insurer must show a range of jobs which are reasonable available

2) within the geographic area where the employee resides

• Employer must show jobs available within your “local community,” which is interpreted both as the area you were injured (ex. Baghdad, Iraq) and the area you reside

• While there is no specific mileage test, jobs more than 50 miles from your home are generally not acceptable

3) which he is capable of performing considering his age, education, work experience, and physical restrictions

• Your physical restrictions need to be taken into account

• If based on medical opinions, a claimant cannot perform any employment, the employer/insurer will not be able to establish suitable alternative jobs

• The jobs need to coincide with your education and work experience, in other words you need to meet the basic qualification for the position

4) and which he could secure if he diligently tried.

• If a claimant tries to get work, and is unable, then the employer/insurer has not met their burden.

• NOTE: The claimant is required to make a dilligent effort to secure work within the opportunities shown by the employer to be reasonably attainable and available

In practice we have seen some Labor Market Surveys that were sorely lacking in the above elements, but have been used as excuses to entirely suspend benefits. Don’t let the insurance company get away with these kinds of antics. If your insurance company has confronted you with a Labor Market Survey that does not meet with the above requirements, immediately contact an attorney who can evaluate the validity/invalidity of the insurance company’s actions before they cost you dearly.

If you stay educated concerning your rights under the Defense Base Act, it will be that much harder for anyone to pull the wool over your eyes.