A common scenario in workers’ compensation involves litigation to terminate total disability benefits once a claimant is released to work but still has physical restrictions. In Delaware, the initial burden is on the employer to demonstrate the claimant is “medically employable” (i.e., physically capable of working). If so proven, the claimant may respond by showing they are a prima facie displaced worker or actually displaced because of his or her work-related injury. The employer may rebut the claimant by showing job availability in the open labor market survey. This discussion will focus on how a claimant may demonstrate he or she is actually displaced through a job search.
For example, John Smith worked as a plumber until his injury. The claimant is no longer employed by the insured nor capable of returning to his pre-injury employer. However, he has been released by the defense expert and treating physician to light duty with no repetitive lifting. The employer files a Termination Petition to end total disability benefits and obtains a Labor Market Survey showing job availability within the claimant’s background and physical restrictions. The claimant is in his mid-forties, a high school graduate with some college experience, and of sound mind. He applies for 20 jobs after his doctor released him to modified duty but does not receive a single job offer. Mr. Smith also contacted the employers listed on the Labor Market Survey, applied to the jobs that remained open, but did not receive an offer. Is he actually a displaced worker due to his injury, and thus, entitled to ongoing total disability benefits?
The answer (as it usually is with attorneys) is: it depends. Delaware places a duty on a claimant who is no longer totally disabled to make reasonable efforts to secure employment within his/her physical restrictions. The Industrial Accident Board (the “Board”) has defined this search to be a diligent, good faith effort to locate suitable employment. The claimant’s job search need not be perfect but merely reasonable. Reasonable has been referred to as obvious, commonsensical attempts to locate work.
An example of an invalid job search is in Rhonda Ayers-Sanders v. Chimes International, LTD, No. 1377829 (Del. I.A.B. Nov. 8, 2012). The claimant was restricted to light duty with a ten pound lighting restriction. She applied to some of the jobs listed in the employer’s Labor Market Survey, contacted some of the listed employers, applied for positions with six employers not included on the survey, attended a job fair, posted her resume online within two weeks of the hearing. Claimant also signed up for a vocational workshop with the Delaware Department of Labor. She did not receive any job offers.
The Board did not find the claimant’s job search reasonable. The vocational specialist refuted the claimant’s testimony that she applied to or contacted the employers listed in the Labor Market Survey. The jobs the claimant sought out on her own were found to be outside her expertise, physical limitations, and geographic location. The Board also placed weight on the claimant not starting her job search until months after her doctor released her to work and having only attended the job fair within a short time of the hearing.
A valid job search was detailed in Jacki Poore v. Howell F. Wallace, No. 1337349 (Del. I.A.B. Jan. 8, 2012). The claimant had been released to light duty in June 2012. She began looking for work in July 2012 and kept a diary of her applications and responses from the potential employers. In the six months leadings up to the hearing, the claimant applied to 29 jobs on her own but did not receive an offer or request to interview. Her job search was primarily through internet job search engines (i.e.. Indeed and Monster) and local newspaper classified postings. She attended vocational rehabilitation with the Department of Labor and was scheduled to undergo training for administrative and computer skills. The claimant cycled back to employers in her log closer to the hearing to inquire if there were new openings. None of the jobs she applied for were beyond her physical limitations.
In evaluating a claimant’s job search, the Industrial Accident Board will evaluate a number of factors. The most prominent appears to be if the claimant’s job search was for positions that are within her background and physical restrictions. An application for a job that is far outside one’s experience and does not meet the posted requirements has been rejected by the Board. Another important factor is when the claimant searched for jobs. The Board’s findings indicate it considers if the search was done in a realistic attempt to obtain employment or merely in anticipation of litigation. It is also important that the employer’s vocational specialist be made aware of the claimant’s job search and follow-up with the employers identified in the Labor Market Survey. The ability of a vocation specialist to refute a claimant’s argument that he or she applied for and were denied a position, or applied for a different job that was beyond his or her capabilities, cannot be overstated. Overall, this inquiry will be fact specific and not rubber stamped.
For more information about this article, please contact Robert S. Hunt, Jr. at 302.594.9780 or firstname.lastname@example.org.