Using Labor Market Surveys to Rebut Disability

An issue that is frequently encountered in workers’ compensation claims is whether a claimant can prove disability — i.e., whether the claimant can show that they are incapable of earning their pre-injury wages at the same or any other employment as a result of their work-related injury.

One tool that employers can use to rebut evidence of disability is a labor market survey prepared by a vocational rehabilitation expert. To enhance their evidentiary value, labor market surveys should be specifically tailored to the claimant’s individual characteristics. They should take into account the claimant’s age, education level, job skills, experience, physical restrictions, if any, as well as the specific requirements of each job identified. Surveys should also try to identify jobs that are available in similar industries and geographical locations when compared to the claimant’s pre-injury job.

By way of illustration, in Roset-Eredia v. F.W. Dellinger, Inc., the North Carolina Industrial Commission found that the employer’s labor market survey was too speculative and generalized. 190 N.C. App. 520, 660 S.E.2d 592 (2008). Specifically, the Commission noted that the survey failed to include specific information regarding the physical, language, and educational requirements of the positions identified within the survey. It was also noted that the vocational expert did not communicate directly with the potential employers regarding the specific job requirements. Furthermore, the Commission felt that the expert’s report included vague generalities. For example, the report concluded that the claimant “might reasonably have expected” to obtain one of the jobs identified within the survey; that the jobs “may be appropriate” for the claimant; and that that the claimant “could have a reasonable chance of obtaining one of those jobs.” Based on the above, the North Carolina Court of Appeals affirmed the Commission’s ruling that the employer had failed to show that suitable jobs were available for the claimant.

Similarly, in the North Carolina Court of Appeals’ unpublished opinion of Adame v. Aerotek, the court held that the Commission incorrectly relied on the vocational expert’s testimony when the expert’s testimony revealed he had only limited knowledge of the claimant’s educational level, language abilities, job qualifications, and physical restrictions. 809 S.E.2d 922 (2018). Importantly, the expert did not actually speak to the claimant to determine these characteristics prior to preparing the labor market survey. Also, the testimony showed that the expert had little knowledge of the actual physical and educational requirements of the jobs identified in his survey. As a result, his testimony was assigned less weight.

When relying on a labor market survey, employers should ensure that their vocational expert takes into account the specific characteristics of the claimant and the actual requirements of prospective jobs. This personalizes the labor market survey and makes the expert’s testimony more convincing should the claim proceed to hearing.

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