Labor Market Surveys in Louisiana Workers Compensation

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What is a Labor Market Survey in Louisiana Workers Compensation?

In Louisiana workers compensation, a Labor Market Survey is a report or letter prepared by vocational rehabilitation counselor (who is chosen by and paid by the workers compensation insurance company), in order to determine post-injury wage earning capacity and thereby reduce or terminate the employee's indemnity (or lost wages) benefits. 

All payments for Labor Market Surveys are paid for by the workers compensation insurance company.

A Labor Market Survey is based on the results of a functional capacity evaluation, and will contain a list of actual jobs that the vocational rehabilitation counselor claims are with the employee's physical limitations, education history, and present work skills. 

The Labor Market Survey process begins with the insurance company's vocational rehabilitation counselor scheduling a meeting with the injured employee, in which the vocational rehabilitation counselor will assist with preparing a resumé and applying for jobs online.

Then, the insurance company's vocational rehabilitation counselor will meet alone with the employee's doctor, in order to try to convince the doctor to sign off on the employee's ability to potentially do some of those jobs.

Afterwards, the vocational rehabilitation counselor will produce by certified mail a Labor Market Survey, which is simply the written list of jobs, including the names and addresses of prospective employers. 

The workers compensation insurance company will then use this Labor Market Survey to claim that the employee can return to employment, and thereby reduce or terminate the employee's indemnity (or lost wages) benefits.  

The workers compensation insurance company will accomplish this by having its vocational rehabilitation counselor use the employee's treating physician's written restrictions, and a Functional Capacity Evaluation, to locate and identify actual jobs within the employee's geographical area (usually 30 miles) which fall within the employee's work restrictions.

Job Placement and Availability in Labor Market Surveys

Again, this list of actual jobs within the employee's geographical area (usually 30 miles) which fall within the employee's work restrictions is known as a Labor Market Survey.

But remember, the employee does not need to actually be offered that job, or receive the job, or even apply for the job.  Vocational rehabilitation can be accomplished - and lost wage benefits eliminated - just by producing a Labor Market Survey to establish the injured employee's wage-earning capacity, and having the treating physician sign of on one or more of those jobs.

Actual job placement is not required for lost wage benefits eliminated; the workers compensation insurance company merely needs to establish the employee's wage-earning capacity.

So that means that if a potential new employer rejects an employee's application for an available job, then that rejection does not affect at all the workers compensation insurance company's ability to prove an employee's earning capacity, and thereby reduce or terminate the employee's lost wage benefits.  

And certainly an injured worker cannot simply choose not to work and still collect lost wage benefits, when the employee is physically able to work and jobs are available.

So basically, the workers compensation insurance company can prove that jobs are available (for the reduce or terminate the employee's lost wage benefits), by establishing:

    1. The existence of a suitable job within the employee's physical capabilities and within the employee's reasonable geographic region;
    2. The amount of wages that an employee with the employee's experience and training can expect to earn in that job; and
    3. An actual position available for that particular job at the time that the employee received notification of the job's existence;  

And again, all of this can be proven without the cooperation or participation of the employee.

Of course, the employee may rebut the workers compensation insurance company's proof of availability of jobs by demonstrating that economic and other conditions show that such job are actually not available in reality.

For example, an injured worker could rebut the workers compensation insurance company's proof of availability of jobs by proving with clear and convincing evidence that the worker contacted the potential employers, but the potential employers neither offered a job nor had any jobs available that the injured worker would have been able to perform.

Reasonable Geographic Areas in a Labor Market Surveys

Louisiana law requires that, in order for the workers compensation insurance company to use jobs in a Labor Market Survey for the purpose of reducing or terminating the employee's lost wage benefits, these potential jobs must be located reasonably within the employee's geographical area.   

But what exactly is a reasonable geographic area in a Labor Market Survey?

Well, Louisiana workers compensation courts have noted that what is reasonable in terms geographic area in a Labor Market Survey depends on a number of factors, such as:

    1. The nature of the employment region;
    2. Whether the employment region is urban, suburban or rural;
    3. The transportation requirements and availability to and from the employment;
    4. The availability of transportation to and from the employment;
    5. The specific work history of the injured employee; and
    6. The economic impact of potential job position to the injured employee.

Generally speaking a good rule of thumb is that a reasonable commutable distance to work for a potential position in a Labor Market Survey is approximately 30 miles.

But the 30 mile threshold is not exact, and adjustments needs to be made based on the specifics of the situation and the six factors detailed above.

For example, in one case, the workers compensation court ruled that light duty employment 30 miles from the employee's home was not reasonable due to the employee's physical inability to drive more than a short distance from his home. 

But, in another case, the workers compensation court ruled that jobs located 30 miles from the employee's home were within a reasonable geographic distance since the employee had previously worked in that area and was physically capable of that 30 mile commute. 

So again, when determining what is reasonable geographic area for employment of an employee for purposes of a valid a Labor Market Survey, one must always look to the totality of the circumstances, such as:

    • The type of employment;
    • The region where the employment is located;
    • The employee's prior work travel history;
    • The availability of transportation to the employee;
    • The employee's physical limitations on traveling; and
    • Other individual circumstances in the claim.

In other words, the 30 mile mark is a useful measurement by thumb, but not and end-all determining number.

Labor Market Survey Reports

Typically, a Labor Market Survey comes in the form of a report or a letter prepared by vocational rehabilitation counselor, and contains a list of actual jobs that the vocational rehabilitation counselor claims are with the employee's physical limitations, education history, and present work skills. 

The Labor Market Survey will be submitted to the injured worker, the worker's attorney, and the workers compensation insurance company.  

Many times the Labor Market Survey is simply a concise letter listing:

    1. The potential jobs for the injured worker;
    2. The detailed job descriptions of those potential jobs;  
    3. The wage rates for those potential jobs;  
    4. The potential employers for those jobs;
    5. The locations of those potential jobs; and   
    6. The date of availability of those potential jobs.   

But sometimes the Labor Market Survey is presented in a report format that also includes:

    1. A summary of all contacts with potential employers, each each person contacted, that person's position, and the date and time of each contact;
    2. The precise detailed job positions included in the Labor Market Survey;
    3. A range of the wages for each job position included in the Labor Market Survey;
    4. The date and time on which the potential job position became available, and the date and time on which it was confirmed and this potential job position remained available; 
    5. The name of the vocational rehabilitation counselor who conducted the Labor Market Survey, and any individual who assisted;
    6. An analysis, supported by the medical records, of why and how the injured employee possesses the capacities to perform the potential job positions;
    7. An analysis, supported by the medical records, of why and how the potential job position matches the overall qualifications of the injured worker; and
    8. An analysis and complete listing and description of the injured worker's transferable work skills and abilities.

Generally speaking, the less thorough that a Labor Market Survey report is, the more advantageous it is to the employee, because the employee will be able to more easily challenge the Labor Market Survey, and the workers compensation insurance company will have a much more difficult  time rebutting these challenges since it is quite difficult to essentially go back in time and gather additional material from potential employer who are under no obligation to waste their time with such activities.

What Is the Purpose of a Labor Market Survey in Louisiana Workers Compensation?

Sadly, the workers compensation insurance companies use Labor Market Surveys for only one purpose - to reduce or eliminate the injured employee's lost wage benefits.

However, the real problem with Labor Market Surveys is that a Labor Market Survey is a merely theoretical analysis and does not usually reflect the reality of an injured employee's situation.

In other words, a Labor Market Survey merely asks the question "what job could the injured worker possibly get to replace the worker's lost wages?" Instead, a Labor Market Survey should ask the question "what new job does the injured worker actually now have to replace the worker's lost wages?"

If a Labor Market Survey did in fact answer the question "what new job does the injured worker actually now have to replace the worker's lost wages" then the purpose of a Labor Market Survey - and vocational rehabilitation in general - would be to find a new job for the injured worker in order to actually replace the worker's lost wages in reality.

But unfortunately, this is not the case.

Instead, a Labor Market Survey only answers the question "what job could the injured worker possibly get to replace the worker's lost wages," and therefore the real purpose of a Labor Market Survey - and vocational rehabilitation in general - is simply to reduce or eliminate the injured employee's lost wage benefits.

Again, a Labor Market Survey does not consider whether the jobs it lists are actually available, or whether the employers it lists are actually willing to hire, or whether the injured worker has ever performed the type of work listed by the Labor Market Survey.

Last, workers compensation insurance companies sometimes use Labor Market Surveys for the purposes of intimidating an injured worker into accepting a low-ball settlement.

How Do Labor Market Surveys Work in Vocational Rehabilitation in Louisiana Workers Compensation?

Typically, the vocational rehabilitation process begins after the injured employee's treating physician releases the employee to return to work with restrictions. 

Once the employee's treating physician releases the employee to return to work with restrictions, the workers compensation insurance company will typically appoint a vocational counselor to handle the vocational rehabilitation process.

The process typically includes conducting a Labor Market Survey to determine post-injury wage earning capacity.

Often, the vocational rehab counselor typically will use the treating physician's written work restrictions to locate actual jobs within 30 miles of the employee's geographical area that are actually available and fit within the doctor's work your restrictions.

And sometimes, the workers compensation insurance company will have the employee undergo a functional capacity evaluation (FCE), which is basically an examination by a physical therapist in order to determine the employee's physical ability to perform specific physical functions.

So, the workers compensation insurance company will tell the injured employee that the purpose of the vocational rehab process is to find a new job for the employee.

However, the employee does not need to actually be offered that job, or to receive the job.  In fact, there are absolutely no guarantees that the employee will be able to get that new job.  

What is guaranteed, however, is that if the doctor signs off on just the employee's ability to potentially do that job listed in a Labor Market Survey, then the workers compensation insurer will reduce or terminate the employee's indemnity (or lost wages) benefits, by whatever amount that new job pays.  

Unfortunately, it does not matter if the employee receives the new recommended job, or if the job recommended is not very reliable, or if the job recommended requires more experience than the employee has, or if the job recommended requires physical demands that are too hard on the employee.

So vocational rehabilitation is a trap - and a Labor Market Survey is most troublesome part of the process - because its real purpose is not to find the injured employee a new job, or to provide retraining, but instead merely to give the insurance company the ability to terminate the employee's indemnity (or lost wages) benefits. 

What If the Employee Cannot Return to His or Her Old Job?

Often, an injured employee is able to receive workers compensation benefits for a short period of time, and then return to his or her position (either with or without modifications/accommodations). In such a scenario, the workers compensation benefits would end once the employee is able to earning 90% of what he or she was earning before the accident.

But not all employees are so fortunate. Some types of injuries make it difficult or impossible to return to the employee's position or job, even with modifications or accommodations. 

If the employee cannot return to his or her position (either with or without modifications/accommodations), then the workers compensation insurance company has to determine if there is a job or jobs that the employee is capable of handling.

This job or jobs does not have to be a job that the employee likes or or prefers or accepts, though it must be in the employee's geographical location.

The workers compensation insurance company will initiate the vocational rehabilitation process, and will initiate determine if there is a job or jobs that the employee is capable of handling. Usually these processes begin with the workers compensation insurance company hiring a vocational rehabilitation counselor.

The insurance company may claim that it is offering vocational rehabilitation "for the betterment of the worker" or because it "cares about" the worker. But the reality is:

    1. The insurer is required under Louisiana law to provide vocational rehabilitation services; and
    2. The insurer is actually using vocational rehabilitation as a means to reduce or terminate the employee's indemnity (or lost wages) benefits.

Unfortunately, an employee's refusal to accept vocational rehabilitation can result in the injured worker's weekly compensation being reduced by 50%! 

Job Placement is Not Necessary

So, the workers compensation insurance company will tell the injured employee that the purpose of the vocational rehab process is to find a new job for the employee.

But these jobs do not have to be jobs that the employee likes or or prefers or accepts, though it must be in the employee's geographical location.

The employee does not need to actually be offered that job, or to receive the job.  In fact, there are absolutely no guarantees that the employee will be able to get that new job.  

In fact, the workers compensation insurance company at this point does not care if the employee actually applies for or receives the new job, because job placement is not necessary for the insurance company to reduce or eliminate the employee's lost wage benefits.

All that is needed for the insurance company to reduce or eliminate the employee's lost wage benefits is for the doctor to signs off on just the employee's ability to potentially do a job that the vocational rehab counselor has found. Then the workers compensation insurer will reduce or terminate the employee's indemnity (or lost wages) benefits, by whatever amount that new job pays.  

So, in reality, the workers compensation insurance company is simply using vocational rehabilitation as a means to reduce or terminate the employee's indemnity (or lost wages) benefits.

The real purpose is not to find the injured employee a new job, or to provide retraining, but instead merely to give the insurance company the ability to terminate the employee's indemnity (or lost wages) benefits. 

What About Job Retraining Work in Vocational Rehabilitation?

Job retraining is only even a possibility when the employee is injured so badly that it impossible to return to his or her prior job, and there are no other jobs available in the area that match the employee's education and skill level.

But even then, workers compensation insurance companies very rarely provide for retraining programs - either short-term or long-term - due to the cost of such programs and the time needed for such programs.

The costs of a retraining program would include the reasonable costs of board, lodging, and necessary travel, if there are no retraining programs close to the injured employee.

But again, the workers compensation insurance companies don't really care about retraining, they only care about minimizing about eliminating the workers compensation benefits that they are supposed to pay. To eliminate benefits, the insurance company only needs to show the existence of a job that fits the employee's physical capabilities and is located within a reasonable geographic distance. The insurance company does not need to actually find the worker a job to fulfill its obligations.

The workers compensation insurance company can eliminate benefits without the cooperation or participation of the employee - it just needs to notify the employee of the position opening and its wages, and then have the doctor sign off on the employee's ability to do such work.

In the very rare cases where job retraining actually occurs, a request for vocational retraining must be filed within two years from the end date of temporary total disability as determined by the treating physician.

Also, the few injured workers who actually are determined to be eligible for vocational rehab job retraining can typically receive lost wage benefits for up to 26 weeks, with an additional 26-week extension possible in special situations. 

Labor Market Surveys in Vocational Rehabilitation

The workers compensation insurance company may also instruct its chosen vocational rehabilitation counselor to conduct a Labor Market Survey, in order to determine post-injury wage earning capacity and thereby reduce or terminate the employee's indemnity (or lost wages) benefits. 

A Labor Market Survey is based on the results of a functional capacity evaluation, and will contain a list of actual jobs that the vocational rehabilitation counselor claims are with the employee's physical limitations, education history, and present work skills. 

The Labor Market Survey process begins with the insurance company's vocational rehabilitation counselor scheduling a meeting with the injured employee, in which the vocational rehabilitation counselor will assist with preparing a resumé and applying for jobs online.

After meeting with the injured employee, the insurance company's vocational rehabilitation counselor will meet alone with the employee's doctor, in order to try to convince the doctor to sign off on the employee's ability to potentially do some of those jobs.

Afterwards, the vocational rehabilitation counselor will produce by certified mail a Labor Market Survey, which is simply the written list of jobs, including the names and addresses of prospective employers. 

The workers compensation insurance company will then use this Labor Market Survey to claim that the employee can return to employment, and thereby reduce or terminate the employee's indemnity (or lost wages) benefits.  

Again, the employee does not need to actually be offered that job, or receive the job, or even apply for the job.  Vocational rehabilitation can be accomplished - and lost wage benefits eliminated - just by producing a Labor Market Survey to establish the injured employee's wage-earning capacity.

Does a Labor Market Survey Constitute Sufficient Vocational Rehabilitation?

Vocational rehabilitation services in Louisiana workers compensation must be more than just a Labor Market Survey.

Also, simply providing specialized job placement, such as modifying the prior job or creating a new job, is not necessarily vocational rehabilitation. 

Proper vocational rehabilitation requires testing, evaluation of medical and history of the injured worker, applying these factors to job search, locating potential employers, meeting with potential employers to insure would hire and then offering to assist claimant in applying for the jobs involved. 

In fact, Louisiana courts generally find that vocational rehabilitation involves the following requirements and proper procedures:

    1. The vocational rehabilitation counselor must consult medical records, treating physicians, and the injured worker as to the current medical condition and restrictions.
    2. The vocational rehabilitation counselor should have a face-to-face with the physician, but this must occur with the knowledge and consent of the injured worker who does have a right to be present.
    3. The employee's full medical history must be considered, not just disabilities or restrictions from the work accident.
    4. A face-to-face vocational consultation with the employee is required.
    5. The vocational rehabilitation counselor must consider the employee's social, educational, and vocational histories in order to establish the employee's expertise, capabilities, and ability to adapt.
    6. Vocational and skills testing must be performed to determine basic reading, writing, mathematical, and communication skills, as well as the employee's interests.
    7. A job survey or labor market survey that takes all of the above factor into account and provides accurate job descriptions should be conducted.
    8. Close communication throughout the process is required between the vocational rehabilitation counselor and the employee, as opposed to merely the continued reports to the insurance company.
    9. A second face-to-face information session between the vocational rehabilitation counselor and the employee is needed to provide the employee information and review the work performed.
    10. The vocational rehabilitation counselor and the employee should maintain a mutual understanding of the means and purpose of the rehabilitation process.
    11. Once jobs are identified, the vocational rehabilitation counselor must remain available to help with interviews, resumes, and further training as needed, instead of simply informing the employee of the jobs and instructing the employee to apply.  

So proper vocational rehabilitation services mean more than just a Labor Market Survey.

In fact, simply performing a Labor Market Survey, without any testing, physician approval, or analysis of real job availability, is inadequate.

For example, one Louisiana appeals Court found that adequate vocational rehabilitation was not performed when one year after termination of benefits and six weeks before trial the workers compensation insurance company engaged a vocational rehabilitation counselor who tested the injured worker, reviewed the worker's medical records and performed a Labor Market Survey.

In another example, a different Louisiana appeals Court found that adequate vocational rehabilitation was not performed when the workers compensation insurance company engaged a vocational rehabilitation counselor who simply provided the injured worker (who was a former $7/hour employee) with a list of minimum wage offers. 

In a third example, the Louisiana Supreme Court found that adequate vocational rehabilitation was not performed when the vocational rehabilitation counselor identified 37 different jobs within the injured worker's physical capacity, the injured worker applied for all 37 jobs but was not hired. The Louisiana Supreme Court found that adequate vocational rehabilitation was not performed here because the vocational rehabilitation counselor failed to discuss this injured worker with any employers, and thus this Labor Market Survey showed job possibilities, not job availabilities.  

How to Fight Back Against the Reduction or Elimination of Lost Wage Benefits by a Labor Market Survey in Louisiana Workers Compensation

An employee injured on the job in Louisiana is entitled to vocational rehabilitation services, which are supposed to assist the injured worker in finding a new job or occupation if he or she cannot return to his or her previous occupation due to the work-related injury.

The idea that the insurance company will offer retraining services - including something called a Labor Market Survey that is a list of new jobs for the injured employee - to help an injured employee find a new job seems appealing to an injured employee.  

Employees were almost always hard at work at the time of injury, and are almost always eager to return to work despite injuries.

So when an injured employee is told (usually by a vocational rehabilitation counselor) that Louisiana workers compensation has a system called vocational rehabilitation which is supposed to help injured workers find re-training or a new job, this injured employee is eager to work that system.

But the big lie is that vocational rehabilitation hardly ever provided actual re-training or an actual new job, but instead is simply a tool for the vocational rehabilitation counselor and the workers compensation insurance company to reduce and eliminate the worker's indemnity (or lost wages) benefits.

Essentially, if the employee's doctor releases the employee to work with restrictions (such as light duty), the insurer will appoint a vocational counselor (or "vocational rehabilitation specialist") to conduct a Labor Market Survey, and in some cases a functional capacity evaluation, to identify jobs within the area that actually available and that are a match with the employee's skills and present physical ability (as per the doctor's written restrictions).

Then, once the injured worker's treating physician signs off on the jobs in the Labor Market Survey, the workers compensation insurance company can immediately reduce or terminate the employee's lost wage benefits.

Thus, vocational rehabilitation is a sham and a farce, and no friend to the injured worker. In fact, vocational rehabilitation can be the injured worker's biggest nightmare.

Vocational rehabilitation is a trap because the vocational rehabilitation counselor appears advantageous to the injured worker since this counselor is free to the worker, but in reality this vocational rehabilitation counselor is actually working actively against the interest of the worker, since the vocational rehabilitation counselor is hired, paid, and managed by the workers compensation insurance company.

This workers compensation insurance company has to meet it bottom line - which means reducing and eliminating benefits to the employee - because it owes no duty to the interest of the employee, but is solely obligated to maximize profit to its stock shareholders.

Therefore, vocational rehabilitation is a trap because the vocational rehabilitation counselor has no choice but to work against the injured employee, while pretending to look out for the injured worker.

The Employee Should Alarmed When Receiving a Labor Market Survey in Louisiana Workers Compensation

Louisiana workers compensation law specifically holds that: "an employer can discharge its burden by establishing the existence of a job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region, the amount of wages that an employee with claimant's experience and training can expect to earn in that job, and an actual position available for that particular job at the time that the claimant received notification of the job's existence. All of this can be proven without the cooperation or participation of the employee."

So, actual job placement is not required, and the workers compensation insurance company can eliminate an employee's lost wage benefits simply by:

    1. Showing the existence of a job within the employee's physical capabilities and geographic region;
    2. Showing the amount of wages that an employee with that employee's experience and training can expect to earn in that job; and
    3. Showing an actual position available for that particular job at the time that the employee received notification of the job's existence.

And again, all of this can be proven without the cooperation or participation of the employee.

For these reasons, an injured employee should be extremely concerned if he or she is contacted by a vocational rehabilitation counselor or receives a Labor Market Survey.

The bottom line is that if an injured employee is contacted by a vocational rehabilitation counselor, this almost always means that the workers compensation insurance company is attempting and preparing to reduce or eliminate the employee's lost wage benefits.  

And, if the injured employee receives a Labor Market Survey, the workers compensation insurance company may have already reduced or eliminated the employee's lost wage benefits.  

In fact, once the employee's treating physician confirms in writing (or "signs off" on) the jobs listed in a Labor Market Survey, then the workers compensation insurance company can immediately reduce or terminate the employee's lost wage benefits.

So the employee should beware, because the vocational rehabilitation counselor's primary goal - what the counselor is paid to do - is to provide evidence and testimony as an expert witness for the insurance company in order to prove that the injured employee can return to work, and thus should no longer receive lost wage benefits.

The injured employee must understand that the workers compensation insurance company chooses, hires, pays, manages, and directs the vocational rehabilitation counselor to do exactly what the insurance company wants - which is to eliminate the employee's lost wage benefits.

If the vocational rehabilitation counselor does not work to eliminate the employee's lost wage benefits, he or she will not only be fired, but he or she will never be hired by any of the workers compensation insurance companies ever again.

How to Actually Fight Against a Labor Market Survey

Really, the only way for an injured employee to fight against a Labor Market Survey is for the injured employee to hire an experienced Louisiana workers compensation attorney to handle his or her entire workers compensation claim.

A skilled Louisiana workers compensation attorney can help in defeating the insurance company's efforts to reduce or terminate the employee's lost wage benefits, and can prevent the employee from accepting a pre-mature or low-ball settlement as a result of the vocational rehabilitation trap.

The earlier a workers compensation attorney can begin handling an injured employee's claim, the better.

However, an experienced workers compensation attorney's skills can be most effective during the vocational rehabilitation process, and especially effective in refuting the insurance company's Labor Market Survey.

Prior to receiving a Labor Market Survey, an experienced Louisiana workers compensation attorney can fight back against the insurance company by:

    1. Ensuring that the employee's lost wage benefits are being paid in full and on time;
    2. Preparing the employee for the employee's meetings with the vocational rehabilitation counselor;
    3. Accompanying the employee to his or her first meeting with the vocational rehabilitation counselor;
    4. Being present for any interview conducted with the employee by the vocational rehabilitation counselor or insurance company representative;
    5. Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and insurance company are complying with the law;
    6. Supervising the vocational rehabilitation process to make sure the vocational rehabilitation counselor and insurance company are not coercing the employee into giving up benefits;
    7. Instructing the employee on how to properly handle a Functional Capacity Evaluation (FCE);

After receiving a Labor Market Survey, an experienced Louisiana workers compensation attorney can fight back against the insurance company by:

    1. Challenging the validity of a Labor Market Survey through research and evidence;
    2. Investigating all positions identified by the vocational rehabilitation counselor in the Labor Market Survey;
    3. Refuting the availability and wage rates of jobs listed on a Labor Market Survey;
    4. Challenging whether jobs listed in a Labor Market Survey actually fall within the treating physician's work restrictions;
    5. Challenging whether jobs listed in a Labor Market Survey contain a true and proper description for the treating physician to review;
    6. Investigating whether the treating physician actually signed off on each job listed in a Labor Market Survey, without additional limitations;
    7. Investigating whether each job listed in a Labor Market Survey actually falls inside of the employee's education, training and skills;
    8. Determining whether each job listed in a Labor Market Survey actually existed on the date on which the employee was made aware of it; and
    9. Determining whether each job listed in a Labor Market Survey actually is located where it is described, and within 30 miles of the employee.

Certainly, investigation into all the positions listed in a Labor Market Survey is very important when trying to challenge a Labor Market Survey. 

A full and thorough investigation into the positions listed in a Labor Market Survey should include:

    • Researching all Labor Market Survey positions online as thoroughly as possible;
    • Printing and saving as many actual online job descriptions and related online documents about the jobs as possible;
    • Assembling and saving the names and contact information of people knowledgable about the job positions;
    • Calling all the potential employers to discuss the jobs, show interest in the jobs, and gather information about the jobs;
    • Applying for the job positions and keeping copies and/or photographs of all such applications;
    • Gathering and saving as much information as possible about the physical, educational and work qualifications requirements of each job;
    • Gathering and saving as much information as possible about the pay rates and available work hours of each job;
    • Gathering and saving as much information as possible about the available work location of each job; and
    • Creating and maintaining a job-search journal, which should include (1) the name and position of each person spoken with about a job, (2) the date, time, and place wherein that conversation was held, (3) what exactly was said about the job position, and (4) what, of anything, was said about the job position that was different from the job description listed in the vocational rehabilitation counselor's Labor Market Survey.

Perhaps most important is this idea of gathering and saving information about the job position that is different from the job description listed in the vocational rehabilitation counselor's Labor Market Survey.

This is because an inaccurate description of some or all of the proposed jobs in a Labor Market Survey can invalidate the Labor Market Survey.

And it is not uncommon for the vocational rehabilitation counselor to prepare the Labor Market Survey with job description tailored to meet the insurance company's goal of being sufficient enough to reduce or eliminate lost wage benefits.

So sometimes the vocational rehabilitation counselor will just "fudge" the description in the expectation that no-one will ever check.

Important Investigation Questions to Ask About All Labor Market Survey Job Positions

As noted above, it is extremely important for the injured worker - or preferably the injured worker's attorney - to investigate all Labor Market Survey job positions.

Generally speaking, important questions regarding Labor Market Survey job positions fall into the five following categories:

    1. Actual Wages Paid;
    2. Actual Job Location;
    3. Actual Job Existence on the Date of Physician Approval;
    4. Physical Work Restrictions Assigned by the Treating Physician; and
    5. Education, Training and Work Skills.

Concerning the Actual Wages Paid, the injured employee - or the injured employee's attorney - must investigate:

    • Does the proposed Labor Market Survey job position actually really pay the wages that the Labor Market Survey says it pays?
    • Is the proposed job position a full time job or a part-time job?
    • How exactly is the proposed job position's wage rate calculated (salary, hourly, piecework, commission or other)?
    • Does the proposed job position's wage rate include a hypothetical commission presented as an hourly wage rate?

Concerning the Actual Job Location, the injured employee - or the injured employee's attorney - must investigate:

    • Where exactly is the actual proposed Labor Market Survey job position located?
    • Is the actual proposed Labor Market Survey job position located more than 30 miles away from where the injured worker lives?
    • Does the employee's treating physician approve of the actual commute length for the proposed Labor Market Survey job position?
    • Does the employee have the required transportation to commute to the proposed Labor Market Survey job position?

Concerning the Actual Job Existence on the Date of Physician Approval, the injured employee - or the injured employee's attorney - must investigate:

    • Did the proposed Labor Market Survey job position actually exist on the exact date that the treating physician actually approved it?
    • Did the proposed Labor Market Survey job position actually exist on the exact date that the injured worker was made aware of it?
    • If the proposed Labor Market Survey job position actually exist on the exact date that the treating physician actually approved it, or on the exact date that the injured worker was made aware of it, then when was this proposed Labor Market Survey job position actually filled?
    • If the proposed Labor Market Survey job position actually exist on the exact date that the treating physician actually approved it, or on the exact date that the injured worker was made aware of it, then why is this proposed Labor Market Survey job position no longer actually available?

Concerning the Physical Work Restrictions Assigned by the Treating Physician, the injured employee - or the injured employee's attorney - must investigate:

    • Did the employee's treating physician approve of the proposed Labor Market Survey job position by actually signing the job description on the Labor Market Survey?
    • Did all of the employee's treating physicians approve of the proposed Labor Market Survey job position by actually signing the job description on the Labor Market Survey?
    • If the employee's treating physician did approve of the proposed Labor Market Survey job position by actually signing the job description on the Labor Market Survey, did the employee's treating physician add or include any additional physical limitations to the Labor Market Survey job description?
    • Did the employee's treating physician disapprove of any proposed Labor Market Survey job positions, and why?
    • Do any or all of the proposed Labor Market Survey job positions fall within the physical work restrictions assigned by the employee's treating physician?
    • Does the proposed Labor Market Survey job position include an accurate description of the physical work requirements needed for the job position?
    • Did any investigation of the proposed Labor Market Survey job position provide a description of the job position that is different from the description provided in the Labor Market Survey?
    • If any investigation of the proposed Labor Market Survey job position provided a description of the job position that is different from the description provided in the Labor Market Survey, would the employee's treating physician have signed off on this different job position description?

Concerning the Education, Training and Work Skills, the injured employee - or the injured employee's attorney - must investigate: 

    • Do any of the proposed Labor Market Survey job positions fall outside of the injured employee's education?
    • Do any of the proposed Labor Market Survey job positions fall outside of the injured employee's training?
    • Do any of the proposed Labor Market Survey job positions fall outside of the injured employee's work skills?
    • Does the injured worker possess all of the required education, training and work skills identified in the Labor Market Survey job positions?
    • Did any investigation of the proposed Labor Market Survey job position provide a description of the required education, training and work skills for that job position, that is different from the required education, training and work skills identified in the Labor Market Survey?
    • If any investigation of the proposed Labor Market Survey job position provided a description of the required education, training and work skills for that job position that is different from the required education, training and work skills for that job position provided in the Labor Market Survey, would or should the vocational rehabilitation counselor have included the position had its required education, training and work skills been accurately listed?

The bottom line is that an injured employee should fight against the insurance company's efforts to reduce or terminate the employee's lost wage benefits - both before and after a Labor Market Survey - and the best way to do that is to have a skilled experienced Louisiana workers compensation attorney perform a thorough investigation of the Labor Market Survey by asking the right questions.

A Proven Record of Success

We have successfully recovered millions of dollars in settlements for our clients in personal injury claims, auto accidents, and insurance claims. The reason that our opponents settle our clients’ cases for full value is because they know we prepare all our clients’ cases for trial from the start. In fact, we are known for not being afraid to take cases to trial, and thus our opponents know they are in for a fight when going against our clients.

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Our clients always come first. For example, that means we have a strict 24-hour communications policy, wherein our clients’ phone calls are always returned within 24 hours, if not sooner. That also means that our clients never have an issue getting through to their attorney, whether on the phone or in person. And it also means that we regularly arrange to meet with our clients at a place and time convenient for them if they cannot meet at our office during regular business hours.

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