A look at Wal-Mart v. Watson and the Delaware Supreme Court's outline of a reasonable job search and the use of the labor market survey.

The Delaware Supreme Court recently decided this case, which impacts the filing of petitions for review to terminate or reduce a claimant's total disability benefits. Watson is an appeal from an Industrial Accident Board decision in favor of the employer. The claimant suffered a low back injury during the course of his employment. His physician subsequently released him to sedentary or light-duty work with a 20‐pound lifting restriction. The employer then filed a petition to terminate his total disability benefits based on the claimant's release to return to work with restrictions.

At the hearing before the Industrial Accident Board, the claimant agreed that his doctor released him to return to work with restrictions but argued that he remains totally disabled because he is a displaced worker. A labor market survey was presented by a vocational expert on behalf of the employer. The labor market survey listed jobs within the claimant's work restrictions and were considered entry level positions requiring a high school diploma. The claimant presented evidence through his job search log, showing that he applied for 28 jobs online and in person, including jobs identified on the labor market survey. The claimant testified that he disclosed his work restrictions on the job applications. He did not hear back from most of them and received two responses from employers that informed him that they could not hire him because the jobs were beyond his work capabilities. He did admit that he knew when he applied that these two jobs were not within his work restrictions, but he needed to find work. He also testified that some of the jobs on the labor market survey were not hiring.

The Board subsequently found in favor of the employer and terminated the claimant's total disability benefits. On petitions for review, it is the burden of the employer to determine that the claimant is physically capable of returning to work. Once that is established, the claimant may show that he is a prima facie displaced worker because of his age, physical limitations, education and mental capacity. If the Board finds that he is not a prima facie displaced worker, he can still show that he is considered a displaced worker. A displaced worker is a partially disabled claimant who is deemed totally disabled because he is unable to work in the competitive labor market as a result of a work‐related injury. The claimant has the burden to prove that he made a reasonable job search but was unable to obtain employment because of his disability. If the claimant satisfies the burden, then the employer may rebut the evidence by showing that there are jobs available within the claimant's restrictions.

In the Watson case, the Board reasoned that the claimant was not a prima facie displaced worker. He was 54 years old with a high school diploma and transferable skills based on his education and extensive work experience. Since he was not considered a prima facie displaced worker, the Board then looked to see if he was displaced based on a reasonable effort to obtain employment but was unsuccessful due to his injury. After a review of the evidence, the Board found that the claimant did not conduct an adequate job search and was not a displaced worker. The Board also noted that he failed to prove that he was denied employment because of his restrictions. In addition, the Board accepted the testimony of the employer's vocational case manager who prepared the labor market survey to show that there are jobs available in the open labor market within the claimant's restrictions. The Board found in favor of the employer and terminated the claimant's total disability benefits. The employee appealed to the Superior Court, which affirmed the Board's decision. Thereafter, the employee appealed to the Delaware Supreme Court.

On appeal, the Delaware Supreme Court focused on what evidence is required to prove and disprove that a claimant is a displaced worker. The Court decided that in cases where a claimant applies to several jobs that are within his work restrictions and actually available, there is no basis to find that the search is unreasonable. In addition, if an employer has to establish that there are jobs available within the claimant's limitations, a labor market survey will not automatically satisfy the employer's burden. The Court highlighted that while labor market surveys have a place in the process, they only serve to prove that jobs exist and were available at some point. In addition, the Court noted that if a worker applies for jobs in a labor market survey and is unsuccessful, then the value of the survey is significantly diminished. The Court stated that the labor market survey "must be clear that appropriate jobs are actually available." In addition, the Court took in consideration the fact that when an employer cannot accommodate an injured employee, it is probative that the claimant is displaced. The Court also noted that, in a situation when a claimant who has not heard a response from a potential employer where he listed his disability/work restrictions on the application, there is a presumption that the reason he did not receive a response was because of his work‐related restrictions.

Case Law Alert - 1st Qtr 2012