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What is the Purpose of a DBA Labor Market Survey?

In this article I explain what a Defense Base Act Labor Market Survey is and why it is important to you. I give actual useful and helpful tips on do's and don'ts. These will help you from screwing up your DBA case.  So, pull up a chair and huddle up. 

Defense Base Act Labor Market Survey - This is a must read article by Bill Turley

"It stinks when good people lose their DBA case because they fall for one of the insurance company's tricks or traps. This is why I  give it to you straight. No sugar added.  No lawyer talk, no double talk. Just  old fashioned, unsweetened truth.  So you'll understand how to avoid tanking your case. That's the last thing that you want to do - is lose your case because you made a mistake that's completely avoidable if only you had known."

Defense Base Act Lawyer and author of the 5 Star book Win Your Defense Base Act Case 

 

Defense Base Act Labor Market Survey - an overview

Under the Defense Base Act, the DBA insurance company may try and use a Labor Market Survey in order to reduce your DBA benefits.  In order to understand what the purpose of the Labor Market Survey, you need to first understand the difference between scheduled injuries and unscheduled injures under the DBA.  

Under the DBA if you have an  unscheduled injury, your permanent disability benefits are based upon your wage loss. Meaning the difference between what you made as a DBA employee and what you are able to earn in your geographical area considering your physical disability, education, aptitudes and work experience.

I talk about all of this in more depth in my 5 Star Reviewed book on Amazon.com - Win Your Defense Base Act Case. You can order it from amazon.com or get a free copy of it on this website. 

If you're having doubts about the book - I suggest you check out all of the 5 Star reviews on the book on amazon.com here.

A Labor Market Survey

The DBA insurance company has a Labor Market Survey done in order to try and establish the existence of suitable jobs in order to meet their burden of proving suitable alternative employment.

In essence, the Labor Market Survey (LMS) is a list of alleged specific jobs which are allegedly available to you in the area where you live.  For the job opportunities to be realistic, the DBA insurance company must establish their precise nature, terms, and availability.  The LMS must list jobs that you can perform physically. In addition, you have to be qualified to perform the jobs listed in the LMS.

Did you notice the "alleged" and the "allegedly?"  That is your job. With the help of your lawyer. To show that this is all one big scam by the insurance company.

But I'm getting ahead of myself. Let's break this down more first. 

This is all about you

Meaning, the Judge is first looking at your age, education, training, work experience, and aptitudes. Then the Judge looks at the geographic area where you live in order to see what jobs are available to you.  

Next the Judge looks at the Labor Market Survey and decides whether the jobs listed in the Labor Market Survey  really are available to you.

Next the Judge looks to see if you actually tried to get the jobs and what the results were. Finally, the Judge is sizing you up, so to speak. If you are likable and believable - it goes a long way to winning your DBA case.  I say this time and again, because it really is true.

Don’t forget the basis for all of this is whether you can return to your DBA job due to your DBA related injuries. None of this matters if the Judge determines that you, in fact, are able to return to your DBA job.

You have to meet with the Labor Market Survey person

The DBA insurance company will set up an appointment for you to meet with their Labor Market Survey person. This person will interview you

Everything you say and do during your meeting with the insurance company Labor Market Survey person will be used against you in your trial. Depend on it.

Everything you say or do at the LMS interview will be used against you in court. You must be nice and pleasant. You must tell the truth. You must never overstate or understate your job experience in the LMS appointment and/or when filling out paperwork.  The DBA insurance company is going to have all of your resumes and they are going to double check and triple check your answers.
 
If you don’t remember something, say you don’t remember.

Labor Market Survey report

This person will try and find jobs in your geographical area that you can perform. Then the DBA insurance company will try and use these jobs to decrease your weekly permanent disability award. They will write a report that is known as a “Labor Market Survey.”  It will be introduced as evidence in your trial in order to lessen your permanent disability benefits.

Some more very important helpful hints

If the DBA insurance company is sending you to a Labor Market Survey and you don’t have a lawyer, it really is way past the time for you to lawyer-up. Like, now.

DO NOT ATTEND THE LABOR MARKET SURVEY UNLESS YOU HAVE A LAWYER!!!

If you are being sent to a Labor Market Survey and your lawyer hasn’t prepared you for the Labor Market Survey, you might want to think about getting a new lawyer.  Just saying. Seriously saying, actually.  You need to be prepared.

If you haven’t read my 5 Star Book - Win Your Defense Base Act Cas - you need to order it immediately. You must read it before you attend the Labor Market Survey. 

Not enough time, you say?  See if you can reschedule the Labor Market Survey. Call my office and we will FedEx the book to you overnight. It really is that important. I kid you not.

Check out the dozens of 5 Star reviews here.

A Tool To Reduce You and Your Family’s DBA Benefits

The insurance company will set up an appointment for you to meet with their Labor Market Survey person.  This person will try and find jobs in your geographical area that you can perform.  Then the DBA insurance company will try and use the Labor Market Survey report to decrease your weekly permanent disability award. 

 

A Concerning Example (or why this is important to you and your family)

For example: You earned $2,200 per week as a DBA employee. You have a disabling back injury that prevents you from returning to work at your DBA employment.  You return to your geographical area (say, Fresno, California).   The Labor Market Survey states that there are jobs that you are qualified to perform in the Fresno area (where you live) where you can earn $1,900 considering your  physical disability, education, aptitudes and work experience.

If the Judge believes and credits  the Labor Market Survey - your weekly permanent disability award  will be as follows:

         $2,200
       - $1,900
         $   300
        
  2/3 x $300 = $200

Thus, you will be entitled to a weekly disability award of $200 for the rest of your life or until you earn more than $1,900 a week, at which point your weekly disability payment will be reduced accordingly.

If the Judge did not believe and/or credit the Labor Market Survey you might be entitled to the maximum DBA compensation rate for the rest of your life:

 

$1,510.76   (the maximum compensation rate for the time when you were injured).

As you see here - the Labor Market Survey was drastically reduce your weekly compensation award.  

 

There are ways to attack the Labor Market Survey

Just because the DBA insurance company comes up with a Labor Market Survey that will, in effect, greatly damage your case - - doesn't make it true. This is another example of the devil really is in the details. There are many ways to discredit the Labor Market Survey.  This is where you really need a seasoned DBA lawyer that knows how to dig into the weeds, so to speak.

You need to apply for all of the jobs on the Labor Market Survey

The Labor Market Survey will list a bunch of jobs that are allegedly available and that you can perform. 

What you need to do, as soon as you can,  is actually contact the companies listed and actually try to apply for the jobs. I have been doing this a long time. I have never seen anyone ever actually get hired for an alleged job in a Labor Market Survey.

The devil's in the details, so to speak

You need to keep a detailed log of when you contacted the company, how you contacted them, who you spoke with, etc. In other words, be able to prove that you applied for the alleged job and you didn't get the job or that you were told that you weren't qualified or that there is no job available.

If you call the company, keep a detailed phone log.  If you can, also email the company. 

This is just one way to attack the Labor Market Survey - the devil really is in the details. 

Oftentimes you will get a response back saying that there isn't a job available or they aren't hiring, etc.  This is powerful evidence discrediting the Labor Market Survey.  

Suitable alternate employment

The DBA insurance company is going to try and prove suitable alternate employment with a Labor Market Survey.
 

Some of the case law for suitable alternate employment

I realize that some of you want to hear what the law is on any particular topic. So, here I give you some law on suitable alternate employment.
 

A disability is classified as "total" under the DBA when:

"(1) a claimant demonstrates that the work-related injury in question renders him [or her] unable to return to prior employment, and
(2) the employer subsequently fails to establish the availability of suitable alternative employment within the geographic area of the claimant's residence, which the claimant can perform considering the claimant's limitations, age, education, and background, and with a diligent employment search on the claimant's part." Gen. Constr. Co. v. Castro, 401 F.3d 963, 968-69 (9th Cir. 2005).
 

Employer will use a Labor Market Survey to point to specific jobs that you can perform

If a claimant proves that a work-related injury prevents him or her from returning to the former job, the burden shifts to the employer to point to specific jobs that the claimant can perform. Bumble Bee Seafoods v. Dir., Office of Workers' Comp. Programs, 629 F.2d 1327, 1329-30 (9th Cir. 1980). Once the employer has pointed to one or more possible positions, the ALJ makes a factual finding as to whether the claimant is able to perform those jobs. Bumble Bee Seafoods v. Dir., Office of Workers' Comp. Programs, 629 F.2d 1327, 1330 (9th Cir. 1980); Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 652 (2010).
 
The Fifth Circuit has held that once the employer (read: insurance company) has the burden of showing suitable alternate employment.  Once the employer has met this burden, the claimant can then prevail if he demonstrates that he diligently tried and was unable to secure such employment. Roger’s Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79(CRT) (5th Cir.), cert. denied, 479 U.S. 826 (1986).
 
This is the basis for my recommending that you be diligent and go out and actually apply for and try to obtain every job in the Labor Market Survey that is in the area where you live.
 
In Bumble Bee, the Ninth Circuit stated that employer cannot meet its burden by simply showing that claimant can perform general sedentary work; employer must point to specific jobs that the claimant can perform. Bumble Bee Seafoods v. Directors, Office of Workers' Compensation Programs 629 F.2d 1327, 1330 (9th Cir. 1980).


What if the DBA insurance company doesn’t get a Labor Market Survey?

However, where the record is devoid of evidence of suitable alternate employment, claimant is totally disabled. The mere allegation that such work is available will not meet employer’s burden. See Roger’s Terminal & Shipping Corp. v. Director, OWCP, 784 F.2d 687, 18 BRBS 79(CRT) (5th Cir.), cert. denied, 479 U.S. 826 (1986); American Mutual Ins. Co. of Boston v. Jones, 426 F.2d 1263 (D.C. Cir. 1970); Burke v. San Leandro Boat Works, 14 BRBS 198 (1981); Bostrom v. I.T.O. Corp. of New England, 11 BRBS 63 (1979); Perry v. Stan Flowers Co., 8 BRBS 533 (1978).
 
An employer cannot meet its burden simply by illustrating that the claimant can perform particular physical tasks. Pietrunti, 119 F.3d 1035, 31 BRBS 84(CRT). See Odom Constr. Co., Inc. v. U. S. Dept. of Labor, 622 F.2d 110, 12 BRBS 396 (5th Cir. 1980), cert. denied, 450 U.S. 966 (1981). 
 
Thus, if the Judge believes you met your burden of establishing that you are unable to return to work at  your usual and customary employment as an overseas civilian contractor - and the DBA insurance company has no Labor Market Survey - then the Judge will either find that the job you're performing demonstrates your wage earning capacity or you will be held to permanently and totally disabled. 

Need help right now?

 

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Disclaimer: Please understand these discussions and/or examples are not legal advice. All legal situations are different. This testimonial, endorsement and/or discussion does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation and/or this particular case/ situation. 

William Turley
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“When I seek out professional advice, I don’t want B.S., I want it straight up. I figure you do also.”