As attorneys who represents clients who are receiving workers’ compensation benefits, we often get the above question. In Pennsylvania, when someone is receiving workers’ compensation benefits, an employer may perform what is called an earning power assessment pursuant to Section 306(b)(2) of the Workers’ Compensation Act. Put simply, this is a way for an employer to challenge whether an injured worker has some type of residual earning power. So the question that the injured worker has to ask himself is no longer “Can I still do the job I was doing when I was injured?” but rather, “Can I perform any job whatsoever, and how much can I earn?” Answering the first of those two questions is often simple, the second question can be quite complicated.
For instance, an injured worker may have had a very physical job such as a laborer. When an injured worker suffers a back injury to the point where multiple surgeries are required, it is usually rather simple to determine whether that person can perform a job that requires him to lift very heavy objects. However, is not such a simple question to answer whether that person can possibly perform a job which requires nearly no lifting. That is the very question that an earning power assessment attempts to answer. The idea is that the employer must prove that an injured worker can perform some type of work at some modified level.
There are some basics that we must cover to understand how this process works. First, the employer must obtain some type of change in the injured worker’s status. In other words, if an injured worker is considered fully disabled by workers compensation standards, that person must be released to some type of modified duty, whether it be sedentary, light, or even medium duty work. This release can come from either the claimant’s treating physician, or an “independent” medical examiner. Obviously, if the change in status comes from the claimant’s own treating physician, the case for the employer is that much stronger.
Next, the time-of-injury employer must prove that it has no job available in the job classification to which the claimant has been released. In other words, if the employer has a job that fits the change in injured worker’s restrictions, it must offer that job to the injured workers before performing an earning capacity assessment. This issue often seems obvious, however, when the employer is quite large, such as a hospital, it may not be so obvious that there are (or are not) light-duty jobs available.
If the first two prongs of this process are fulfilled (i.e. change in status and no job available with the employer), the employer is permitted to hire a vocational expert to perform an earning capacity assessment. The vocational expert will interview the injured worker and review medical documentation. Once the expert reviews the medical documentation, the expert seeks to find open and available jobs within a reasonable distance from the injured worker’s residence (assuming that the injured worker still lives in the Commonwealth of Pennsylvania – if the injured worker has moved out of state the employer has the option to perform the labor market survey in the geographical area around the employer). The vocational expert’s job will be to search for jobs that are within the restrictions placed upon the injured worker, which are open and available, and which are vocationally appropriate given the claimant’s experience and education.
If the employer is able to prove to a Workers’ Compensation Judge that the jobs on the labor market survey are reasonable, the Judge may order a modification of the claimant’s benefits based on the earning capacity of those jobs. In other words, and put in plain English, the injured workers’ weekly check may be modified by the amount of money that the judge finds that the claimant could be making at the jobs identified in the labor market survey. And to be clear here, the claimant does not have to go and actually get hired at any of these jobs, the employer must only prove that the injured worker could be doing these types of jobs. To clarify exactly how this modification would work perhaps an example would help.
If the injured worker’s average weekly wage at the time of his 2025 injury was determined to be $1,100.00, the injured worker would receive 66 2/3% of his pay, or $733.33 in workers compensation benefits per week (these figures can change year by year). The vocational expert may find five jobs which it says the worker can perform, and which average a weekly salary of $600.00 per week. If the judge were to find these jobs vocationally appropriate, and also find that the claimant could perform these jobs, she may award a modification of benefits as if the claimant was earning $600.00 per week. This would leave the claimant with a partial disability rate of two thirds of the difference between the preinjury wage and the earning capacity, so $1,100.00 less $600.00 being $500.00, multiplied by 2/3 equals partial disability of $333.33 per week. Obviously, if the injured worker disagrees with the judge’s assessment that he can perform these jobs, he’s going to have to make some strong arguments against the modification.
So that brings us back to our title question: “I’m an injured worker and I received a letter telling me there are five jobs which the employer thinks I can perform, what do I do?” Well, first anyone who is receiving workers’ compensation benefits and receives a request for a vocational interview should seek legal counsel immediately. The issues involved in a modification petition such as this are incredibly complex and are certainly not something that should be handled without the advice of legal counsel. So, you might ask, what would I tell my client to do?
Well, until recently, we would often tell our clients to simply go out and apply for all of the jobs on the labor market survey. Often the injured worker may apply for the jobs and the jobs would not be available, so the client simply wouldn’t get the job. However, after Phoenixville Hospital v WCAB (Shoap), 2 A.3d 689 (Pa. Cmwlth. 2010), appeal granted, 18 A.3d 1093 (Pa. April 27, 2011), the answer is not quite so clear. That case found that even if the claimant were to go and apply for all of the jobs on a labor market survey, and not get contacted by any of the potential jobs, that is not prima facie evidence that the claimant could not perform the jobs.
More recent decisions like Sadler v. Philadelphia Coca-Cola, 269 A.3d 690 (2022), and Fedchem, LLC v. WCAB, 221 A.3d 348 (2019), have continued to apply these principles from Phoenixville Hospital, confirming that the jobs identified by the employer must be actually open and potentially available to be filled by the injured worker, not simply jobs that are already filled with existing employees. Employers can no longer rely solely on labor market surveys showing job listings, they must now ensure that identified positions remain open until claimants have a reasonable opportunity to apply. This has made it more difficult and costly for employers to successfully modify benefits, as they must maintain ongoing contact with identified potential employers and provide evidence that positions remain available.
It now seems to be necessary for the injured worker to hire his own vocational counselor to make an assessment of the labor market survey. Thus, the injured worker may be wise to hire his own advocate to prove that the jobs are not vocationally appropriate or not within his medical restrictions.
One of the issues that the claimant’s vocational counselor must look into is whether the jobs listed on labor market survey are actually appropriate for the education and experience of the injured worker. For example, while an injured worker has been a laborer for his entire life could certainly perform a customer service job from a strictly physical standpoint, would such a job be appropriate given that the person may have very poor communication skills, or a learning disability? Would it matter that the person has no experience, whatsoever, in dealing with any aspect of customer service? These are the very types of arguments that a skilled attorney can present based on the testimony of a vocational counselor hired on behalf of the injured worker.
Further, maybe there are aspects of the claimant’s injury which the original vocational counselor did not take into account. It is also possible that this vocational counselor did not review the medical records of the claimant’s treating physician. The claimant’s treating physician may very well have not released the claimant to any type of work yet, and an argument defending against the modification of claimant’s benefits could be made entirely from a medical standpoint. One way or another, what should be clear by now is that the arguments which can be made on both sides are very complicated and complex.
This article has attempted to show a brief synopsis of this very complicated issue. The simple answer to the title question of this article is that we would tell any injured worker to seek legal counsel. While very few of these cases actually go to decision, the ones that do often stand a nearly 50/50 chance of going in favor of either the employer or the injured worker. Having a certified workers’ compensation specialist on your side can make a big difference in the outcome of your case.