Despite undisputed medical evidence that claimant could do modified work, the Board denied employer's termination petition based on a finding that claimant, who had an eighth grade education and had only worked as a housekeeper, was a displaced worker

The claimant sustained a compensable work injury to her low back on October 8, 2004, and began receiving compensation for temporary total disability. The claimant's treatment for the work injury included surgery to two levels of the lumbar spine on August 19, 2011. Later, in December 2011, the employer filed a review petition seeking to terminate the claimant's total disability benefits, alleging the claimant was capable of returning to work in a sedentary capacity. The claimant asserted that she continued to be totally disabled or, in the alternative, was a displaced worker.

The only medical evidence presented by the employer was the testimony of the defense medical examiner. This evidence showed the claimant was capable of full-time sedentary to light-duty work within certain restrictions. The employer also submitted, with the agreement of claimant's counsel, a Labor Market Survey without the need for testimony from the vocational consultant. The Labor Market Survey identified ten jobs that were asserted to be within the claimant's physical and vocational restrictions, although eight of the jobs required or preferred a high school diploma or GED. The only evidence presented by claimant's counsel was the testimony of the claimant, a 63-year-old woman who testified that she had an eighth grade education and had worked her entire life as a housekeeper. The claimant acknowledged that, following her lumbar spine surgery, her treating physician indicated she could return to work in a sedentary capacity for up to four hours a day, although the claimant did not think she was capable of even doing that level of work.

The Board found that, while the claimant was credible as to her severe ongoing low back pain, they could not ignore the undisputed medical evidence. Therefore, they concluded that the claimant was medically capable of doing modified work. However, the Board went on to conclude that the claimant was a prima facie displaced worker. That term refers to a worker who, while not completely physically disabled from working, is so disabled as a result of a compensable injury that she is no longer regularly employable in any well known branch of the competitive labor market. The Board found that the claimant satisfied this criteria since she was 63 years old, had an eighth grade education, had difficulty with reading and spelling, had never used a computer, and was not able to type. The Board concluded that the employer's Labor Market Survey did not rebut this finding and that it failed to demonstrate regular employment existed within the claimant's physical and academic capabilities. Therefore, the Board found that the employer failed to meet the burden of proof in order to obtain a termination of the total disability benefits.

Case Law Alerts - 2nd Quarter 2013