James R. Flandreau Workers Compensation Law Blog on Lawyers.com

On October 22, 2009, the Pennsylvania Supreme Court decided that when a labor market survey (also known as an earning power assessment) is performed in connection with an injured worker who has since moved out of state, the labor market survey must be based on the geographic area in which the injury occurred.  In Riddle v. W.C.A.B. (Allegheny City Electric, Inc.), No. 54 WAP 2008 (October 22, 2009), Mr. Riddle was injured while working Pittsburgh.  He subsequently moved to West Virginia.  Four and a half years after the work injury, his employer filed a petition seeking to reduce or suspend his weekly wage loss benefits based on a labor market survey that concentrated on region in which Claimant was living at that time.  The labor market survey did not identify any jobs in Pittsburgh.  § 512(2) of the Act, 77 P.S. § 512(2), provides that when an injured worker resides out of state at the time of such a survey, “the usual employment area where the injury occurred shall apply.”  The court found that because the labor market survey did not identify any jobs in Pittsburgh, it could not support a reduction in the injured workers’ benefits.

Although this case provides a potential basis for challenging a labor market survey, it will not apply if the person performing the survey focused on the geographic area in which the worker was originally injured.  One question that has yet to be answered is how this provision of the Act can be squared with the recent cases that suggest that when an injured worker has moved out of the country (as opposed to merely out of the state), this relocation may support a suspension of wage loss benefits.