Out-of-state move doesn't require labor market survey in new residence

Employers are only required to prove work availability in an employee's "usual employment area." Employers do not have to conduct a labor market survey outside of the commonwealth when an employee subsequently moves.

Case name: Rebeor v. Workers' Compensation Appeal Board (Eckerd), No. 2328 C.D. 2009 (Pa. Commw. Ct. 07/09/09).

Ruling: The Pennsylvania Commonwealth Court affirmed the grant of the employer's modification petition because gainful employment was available in the employee's preinjury labor market.

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What it means: Employers are only required to prove work availability in an employee's "usual employment area," which is the area where the employee lives within Pennsylvania or in the area where the work injury occurred. Employers do not have to conduct a labor market survey outside of the commonwealth when an employee subsequently moves.

Summary: The employee was injured in the course and scope of his employment in Pennsylvania. The employer served the employee with a "notice of ability to return to work" based on its medical expert's release of the employee to perform light-duty work. The employer used a labor market survey to establish job availability and then filed a modification petition alleging that work was generally available to the employee. The employee argued the employer did not act reasonable and in good faith in using a vocational rehabilitation evaluation based in Pennsylvania when the employer knew he was going to relocate to South Carolina. The modification petition was granted upon a finding that the employer was not required to prove that work was generally available in South Carolina, even though the employer also had stores in South Carolina.

The Commonwealth Court ruled that requiring the employer to conduct the labor market survey in South Carolina when the employee did not live there at the time and when the injury did not occur there, would not only run counter to the plain language of Pennsylvania's workers' compensation law, but it would also place an unreasonable burden on the employer. The court upheld the finding that the employer was not required to conduct a labor market survey outside of the state based on the employee's intention.

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August 31, 2009

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