• Termination Petition Denied Despite Undisputed Evidence Claimant Can Do Light-Duty Work Labor. Market Survey Evidence Rejected In Favor Of Claimant's Testimony as To Diligent Job Search Efforts, Which Did Not Result In Employment Offers.
  • July 13, 2012 | Author: Paul V. Tatlow
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - Wilmington Office
  • Jacki Poore v. Howell F. Wallace, (IAB No. 1337349 Decided January 18, 2012)

    This case involved an application by the Board of the Watson v. Wal-Mart case to a termination petition with an unfavorable result for the employer.

    The claimant, a horse handler for the employer, sustained a compensable work injury to her back on June 1, 2009, when she was mucking a stall and felt a pop in her back. The employer later filed a petition for review to terminate the claimant's total disability benefits, alleging the claimant was able to do light-duty work. The medical evidence was undisputed that the claimant had been released by her treating physician to light-duty work, and the defense medical witness agreed that light-duty work was appropriate for the claimant. The employer's evidence also included testimony from a vocational consultant who documented a labor market survey, with nine of the eleven jobs being approved by the defense medical examiner. The evidence showed that the employer did not have light-duty work they could offer to the claimant.

    The claimant did not present medical evidence, but her testimony did show that between July 2011 and January 2012, she applied for twenty-nine jobs. She kept a log of her job applications and the results, which indicated she did not obtain any interviews or job offers. The claimant's evidence also indicated that by October 2011, she went to the Division of Vocational Rehabilitation and started a training program to learn administrative and computer skills so that she could attempt to obtain office work within her restrictions. The evidence indicated that the claimant was not rejected from any of the jobs for which she applied because of her physical limitations, but, rather, the responses indicated she did not meet the vocational requirements for the positions.

    The Board found that, despite undisputed evidence that the claimant could do light-duty work, the claimant was economically totally disabled. Therefore, the termination petition was denied. The Board noted that the claimant could prove that she was a displaced worker by showing that she made a reasonable effort to locate employment but was unable to obtain any due to her disability. The Board found that the claimant had conducted an adequate job search by applying for twenty-nine jobs over a period of six months and, in addition, had sought additional help with the Division of Vocational Rehabilitation by pursuing computer and clerical skills training. The Board's reasoning was that the claimant's reasonable job search was not overcome by the vocational evidence presented by the employer, which the Board found insufficient to prove that the claimant was employable. The Board rejected the employer's argument that the Watson case was distinguishable from this case and, instead, found there were numerous similarities between the cases. The Board concluded that the claimant was a displaced worker and remained economically disabled, entitling her to ongoing total disability benefits.