Larson’s Spotlight on Recent Cases: Claimant With Bilateral Carpal Tunnel Syndrome Found Totally and Permanently Disabled Under Odd-Lot Doctrine

Larson's Spotlight on Odd-Lot Doctrine, Exclusive Remedy, Retaliatory Discharge, and Disfigurement Award. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

NE: Total and Permanent Disability Found Under Odd-Lot Doctrine In Spite of Some Evidence That Claimant Could Perform Some Employment Tasks

Under the odd-lot doctrine, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market. The essence of the test is the probable dependability with which a claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his or her crippling handicaps. In that regard, the Nebraska Court of Appeals recently affirmed a decision finding a workers' compensation claimant totally and permanently disabled based on bilateral carpal tunnel syndrome under the odd lot theory because the evidence showed that the claimant was almost 52 years old, did not speak English, her work experience was almost exclusive to the packing plant industry, she had ongoing pain and tendonitis, restrictions against the use of knives and hooks, and restrictions from repetitive grasping, and her physician had significant and legitimate concerns about the claimant's ability to work in the packing plant industry.

See Montoya v. Tyson Foods, Inc., 2012 Neb. App. LEXIS 88 (Apr. 17, 2012).

See generally Larson's Workers' Compensation Law, § 83.01.

NY: Employer's Corporate Subsidiary Was Shielded by Exclusive Remedy Defense Where Injured Worker Worked Under Supervision of Both the Subsidiary and the Employer

A New York appellate court recently held that a corporate subsidiary of an injured worker's employer was also protected by the exclusive remedy provisions of the state Workers' Compensation Act where it appeared that the employer and the subsidiary shared coverage under an insurance policy and the employer prepared and filed tax returns for both entities. While the subsidiary set the worker's wages and was responsible for the hiring and firing of employees at the facility, the employer paid healthcare benefits and wages for all employees at the plant through a payroll service, for which it was later reimbursed by the subsidiary. The worker worked under the supervision and direction of both the subsidiary and the employer.  The court indicated there was no reason to apply an exception to the exclusivity rule under the facts of the case.

See Coonjbeharry v. Altone Elec., LLC, 2012 N.Y. App. Div. LEXIS 2939 (Apr. 19, 2012).

See generally Larson's Workers' Compensation Law, § 112.01.

TX: Evidence That Worker Was Terminated As Part of General Reduction in Work Force Held Sufficient to Defeat Worker's Retaliatory Discharge Action

A Texas appellate court recently affirmed the granting of summary judgment in favor of the former employer in a retaliatory discharge action filed by an employee who broke his arm in a work-related accident.  The court indicated that the employer established a legitimate, non-discriminatory reason for the employee's termination-it informed the worker that he was being terminated as part of a general reduction of the work force. The employee presented no evidence that the employer's stated reason for his termination was false.

See Clevinger v. Fluor Daniel Servs. Corp., 2012 Tex. App. LEXIS 3128 (Apr. 18, 2012).

See generally Larson's Workers' Compensation Law, § 104.07.

DE: Board's Facial Disfigurement Award Reversed Where Board Did Not Compare Severity of Scar with Other Similar Scars that Board Had Observed In Its Accumulated Experience

A Delaware court has reversed a decision of the state's Industrial Accident Board that had awarded 10 weeks of benefits (on a scale from zero to 150 weeks) for a facial scar on the basis that the Board "failed to appropriately analyze the comparative severity" of the disfigurement. The court indicated that in determining an award for disfigurement the Board must specify the following four factors:  (1) Size, shape and location of the disfigurement; (2) Social and psychological impact of the disfigurement; (3) Comparative severity of the disfigurement; and (4) other relevant matters.  The court indicated that the Board made appropriate factual findings as to the size, shape and location of the worker's facial scar and also properly addressed the social and psychological impact that the scar has had on his life. The Board did not, however, reveal a comparison of the worker's facial scar with other scars of similar size, shape and location (the face) that the Board had observed in its accumulated experience. Instead, the Board compared the severity of the worker's facial scar with the severity of the scars on his arms, which were minor in comparison. The court indicated this amounted to legal error.

See Hodgson v. Chrysler Group LLC, 2012 Del. Super. LEXIS 182 (Apr. 25, 2012).

See generally Larson's Workers' Compensation Law, § 88.01.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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