What a Delaware Labor Market Survey Is, and How It Can Affect Your Weekly Check
That packet is a labor market survey. The insurance company paid a vocational expert to go find job openings it says you could work with your current medical restrictions, and the printouts are the exhibit it plans to use.
The goal is to move you off total disability and onto partial disability. That lowers your weekly check and, unlike total disability, partial benefits run out. The packet cannot reduce or end your weekly benefits by itself. If you do not agree to a change, the employer or carrier generally has to ask the Industrial Accident Board to reduce or terminate the benefits and prove its position through the review process.
What Is a Labor Market Survey in a Delaware Workers’ Comp Claim?
It is a report, and behind it is a person. The carrier hires a vocational rehabilitation expert, hands over your medical restrictions, and asks that expert to identify work in your area that fits inside those limits.
The expert pulls job postings, sometimes calls employers, records wage ranges, and writes it up. The stack of listings in your mailbox is an attachment to that report rather than the report itself. Somewhere in the full document is a stated conclusion about how much money the expert believes you are capable of earning right now.
Check which restrictions the vocational expert used. They may differ from the current written restrictions your treating doctor has on file, and they may come from an exam the insurance company scheduled with a physician it chose and paid. That document does a great deal of work in this process, and it is worth reading closely.
One thing about that report is worth knowing before you read a single listing: it was written for the insurance company, by someone the insurance company selected and is paying. Whether the expert met you, observed you attempting any of the work described, or spoke with the doctor treating you is worth establishing rather than assuming.
Getting the survey does not mean you did anything wrong, and it does not mean the adjuster thinks you are faking. It is a standard step in how carriers manage the cost of an open claim. Treating it as a personal accusation is the fastest way to react badly to it. What it deserves instead is a careful read, because a labor market survey is only as strong as the medical restrictions underneath it. Which injuries and limits are actually recognized under Delaware workers’ compensation is worth checking against what the report assumed.
What Is the Insurance Company Actually Trying to Prove?
Two sections of Delaware law explain the whole strategy.
Under Title 19, section 2324, an employee who is totally disabled receives 66 and two thirds percent of their wages for as long as the total disability continues. There is no built-in end date.
Section 2325 covers partial disability, and the math changes. Benefits become 66 and two thirds percent of the difference between what you earned before the injury and your earning power afterward. Notice the phrase. Not what you are earning. What you are capable of earning.
The survey exists to put a number on that earning power. If the Board accepts it, your weekly benefit gets recalculated against wages you are not actually collecting from a job you do not actually have.
Then comes the part that gets explained the least. Section 2325 caps partial disability at 300 weeks. Total disability has no such limit. So the survey is not only asking for a smaller check. It is asking to attach an expiration date to a claim that currently does not have one.
| Total disability (section 2324) | Partial disability (section 2325) | |
|---|---|---|
| Rate | 66 and two thirds percent of your wages, subject to statutory minimum and maximum rules | 66 and two thirds percent of the gap between your old wage and your earning power, subject to the statutory maximum |
| Duration | Continues while the total disability continues | Capped at 300 weeks |
| What triggers a change | Evidence you can work in some capacity | Evidence your earning power went up, or the cap runs out |
| What the survey is for | Ending it | Setting the number it gets reduced to |
Can a Packet of Job Listings Stop Your Weekly Benefits?
Not by itself. That is the single most useful thing to know while the envelope is still on the kitchen table.
Section 2347 says it plainly: compensation payable to an employee does not terminate until and unless the Board enters an award ending the payment of compensation, after a hearing on review of the agreement or award. A vocational report is evidence. It is not a decision, and the person who wrote it has no authority to turn your benefits off.
The Delaware Office of Workers’ Compensation describes the same two doors: benefits stop if you return to work and sign a receipt, or if the employer files a Petition to Terminate Benefits and the Board grants it.
There is one exception buried in section 2347, and it is the reason to be careful with your mail. No petition, hearing, or Board order is required if the parties consent to the termination. That matters because a signed agreement or receipt can carry legal weight where it reflects consent to the change or the termination. A form that reads like a formality is worth having someone look at before it goes back.
Do not sign anything the carrier sends with that packet without having someone read it first. That is not caution for its own sake. It is the one move in this process that is genuinely hard to undo.
Two other pieces of section 2347 are worth holding onto. The Board can review an agreement or award, but not more often than once in 26 weeks. And under section 2348, a hearing on one of these petitions is supposed to be scheduled as quickly as practicable, generally no more than 120 days from the notice of pretrial conference. The hearing process is not instantaneous, but that does not mean the packet can sit unopened. Check every document in it for signatures, response requests, and dates.
Why the Packet Showed Up Now
Put the survey next to your medical file and look at the order of events. Where a survey follows a defense medical examination that assigned restrictions or released you to some form of light duty, the sequence is worth documenting: the exam report, the restrictions it produced, and the date the vocational expert relied on them.
An insurance carrier is a business with an incentive to reduce what an open file costs, and a claim paying total disability carries no end date built into it. A carrier may use vocational evidence to argue that total disability benefits should be reduced to partial disability, which does carry the 300 week ceiling.
None of that is a scandal. It is the arithmetic the other side is running, and knowing it is being run is what lets you respond to the packet as a legal step instead of a personal insult.
The timing is worth noting either way. Check whether the survey followed a change in your documented medical status, and compare the date on the report against the date of the exam it relied on. The weeks after the packet lands are the weeks when the file is still being built, which is the useful time to do something about it.
The Displaced Worker Rule Matters More Than the Listings Do
Delaware recognizes something the survey is built to talk around: a person can be only partly disabled medically and still be totally disabled economically. The law calls that being a displaced worker.
A Delaware Superior Court decision issued on February 11, 2026 describes a displaced worker as someone so handicapped by a compensable injury that they will no longer be employed regularly, and who could only work in a job specially created for them. The claimant in that case was 79, had a tenth grade education, carried cognitive and physical limits from his work injury, and had spent a working lifetime in heavy labor. The court wrote, “For me, Mr. Smith is a classic displaced worker,” reversed the Industrial Accident Board, and did so without prejudice to the employer’s right to file another petition to terminate. The opinion is available through the Delaware courts opinion library.
The point that carries over to your file is the one the survey is built to talk around: being physically able to perform some work is not automatically the same as having realistic earning capacity in the competitive labor market.
There are two routes to that status, and which one you are on changes what is worth doing now.
Prima Facie Displaced Worker
Your age, education, training, work history, and physical restrictions, taken together, show that regular employment is not realistically available to you. The court in the February 2026 case put it directly: if the Board determines a claimant is prima facie displaced, the burden of proof is then on the employer to establish there is work available within the claimant’s medical restrictions.
If You Are Not Prima Facie Displaced: The Job-Search Route
The alternative inquiry is whether the claimant made reasonable efforts to find a job and was unable to do so because of the disability. This route is built out of documentation rather than argument, which is why a survey listing nine positions does not settle anything on its own.
Either way, the employer’s burden is to show work is genuinely available within your restrictions, not to demonstrate that job openings exist somewhere in your county.
What Should You Check in a Delaware Labor Market Survey?
Read the packet with a pen. These are the specific things worth checking, and they are the material a hearing can turn on.
- Is the job still open? Compare the date the expert identified the position against the date on the report itself.
- What wage did the expert use? If the posting gives a range, check which number was used to calculate earning power.
- Which medical restrictions did the expert rely on? Compare them against the current written restrictions in your medical record.
- Is the commute realistic with those restrictions? A job counted as local to a worker in Townsend can sit in Wilmington or across the Maryland line.
- Does the job require credentials you do not have? Certifications, licensing, a clean driving record, or specific experience can go unmentioned in the summary.
- Did the expert confirm the position with the employer? Some reports rely on the text of an online posting alone.
Preserve the listing, note when it was posted, and write down anything that appears inconsistent with your restrictions, qualifications, or location. Whether you should apply for the listed jobs or contact those employers can itself become evidence in a displaced worker dispute, so that is worth deciding deliberately rather than reactively.
Check what the report leaves out as well. Shift requirements, whether a position is full time, whether it involves overtime, and whether a cited wage depends on production bonuses are all things a summary can omit. A job that pays the stated wage only to someone hitting a quota is not paying that wage to a worker on permanent restrictions.
What to Do With the Packet This Week
Most of this is documentation, and it is worth more than any argument you could make on the phone.
- Keep the envelope. The postmark establishes when the survey was mailed against when the listings were posted.
- Sign and return nothing without having it read first. An agreement or receipt can carry legal weight where it reflects consent to a change in benefits.
- Say nothing casual to the adjuster. “I could probably handle that one” is a sentence that gets quoted back at a hearing.
- Compare each listing to your written restrictions. Not what you think you could push through on a good day. What the doctor actually wrote down.
- Get current restrictions from your treating doctor. Dated, in writing, and specific about lifting, standing, sitting, and hours.
- Write down what does not fit on each listing. Date posted, distance, credentials required, wage figure used, and anything outside your restrictions.
- Talk to a lawyer before you decide how to handle a job search. A documented search can become central evidence where prima facie displacement is not established, and how it is conducted is a strategy question worth ten minutes on the phone.
Keep all of it in one folder, paper or digital, organized by date. Reconstructing a timeline from memory the week before a hearing is far harder than keeping the record as it accumulates.
That last one matters more than it sounds. Applying for jobs while on comp can feel like conceding you are able to work. A written record of applications and rejections can become important evidence, and it can also produce a wage figure the other side will use. Which of those it becomes depends on how it is set up.
Where a Lawyer Changes What Happens Next
These cases can turn heavily on the medical restrictions, the vocational evidence, and testimony about employability. You are not required to have a lawyer at an Industrial Accident Board proceeding. What counsel changes is specific.
The vocational expert who wrote the report can be cross examined about which listings were verified, which employers were contacted, which wage figures were used from a posted range, and whether the restrictions relied on were current. Your treating doctor’s restrictions can be put in front of the Board against the defense exam’s. And the displaced worker showing has to be built deliberately out of your age, education, work history, and what transferable skills you realistically have.
There is also the paperwork nobody talks about, which is reading a proposed agreement before it gets signed. That one is quiet, and it is preventable.
Heather Long spent the early part of her career on the insurance defense side before she moved to representing injured workers, which means she has seen how these surveys are ordered and what they are meant to accomplish. She was also a paramedic before she was a lawyer, so a restriction list that does not match the underlying medical record is something she notices. That background is on her attorney page, and it is a working part of how these claims get handled at our Delaware work injury practice.
This article is general information about Delaware law, not advice about your claim. What the Board does with a labor market survey turns on the medical records and the specific report, and those have to be read.
FAQs about Delaware Labor Market Surveys
Do I have to apply for the jobs in the packet?
The packet is evidence a carrier intends to use, not an order from the Board. A documented job search can become important evidence where prima facie displacement is not established, and how that search is conducted can matter, so it is worth deciding the approach with counsel before starting.
Can my benefits be reduced without a hearing?
Generally not, unless you agree to the change. Section 2347 permits termination where the parties consent, and the Delaware Office of Workers’ Compensation describes benefits stopping when an employee returns to work and signs a receipt. Absent that agreement, the employer has to petition the Industrial Accident Board and prevail through the review process.
How long do I have before the hearing?
Once a petition is filed, the case goes to a pretrial conference and the hearing is generally scheduled within 120 days of that notice. The Board also cannot review the same agreement or award more than once in any 26 week period.
What if the jobs in the survey are all too far away?
Distance is a legitimate issue to raise. A position counted as available to a worker in the Middletown area but located an hour up I-95 may not be realistically available to someone with driving or sitting restrictions.
The listings look nothing like my restrictions. Does that end it?
It helps considerably, and it is the first thing to document, though it does not resolve the petition on its own. The Board weighs the vocational report against the medical evidence, which is why current written restrictions from your treating doctor carry so much weight.
Does getting a survey mean the insurance company thinks I am lying?
No. Vocational evidence gets developed on open total disability files, including entirely legitimate ones. Reacting to it as a personal accusation tends to produce phone calls that do more harm than good.
What does it cost to have someone look at the report?
Nothing to have it reviewed. The firm works on contingency, so there is no retainer and no fee unless there is a recovery, and consultations are free, including over Zoom.
Bring the Packet In Before You Answer It
Here is what a first call looks like. You describe what arrived, we read the listings against your actual restrictions, and you leave knowing whether the report is worth challenging and what the deadline situation really is. That takes one conversation, and it is free.
Bring the whole envelope, the listings, any letter that came with them, your most recent restriction note from your treating doctor, and the report from any exam the insurance company scheduled. If there is a form in there asking for your signature, bring it unsigned.
The office is on Main Street in Odessa, roughly ten minutes from Middletown, and evening appointments and Zoom consultations are both available if you are working around treatment. Give us a call, 302-466-5664, or start from the contact page.
