Workers' Compensation

Big doings in Delaware: The DE Supreme Court looking to objectively define "reasonable job search" and create a presumption on the issue of "displaced worker"?

Today is my birthday post.  A big shout out to my Mom (we call her the Queen Mother) who gave me life several decades ago (and that's about all I have to say about my age).  I love my life, my daughters, my husband and especially my new kitty (another grey tabby) who my daughter Caroline has unceremoniously named "Nutella Grace."  Yep, after her favorite breakfast spread.  "Grace" is after the grace of God that truly is the thread in the tapestry of my life. Allow me to add that my Mom makes the best biscotti this side of heaven.  (Love you, Mom!)

But enough about me.  Right now the man of the hour is Bayard (a/k/a Barry) Snyder....which is kind of curious since Barry doesn't do that much work comp...as he will tell you.  That said, Barry and his client have managed to grab the attention of the Delaware Supreme Court and that makes him the cat's pajamas right now (no pun intended, just another salute to my beloved cat).  On the other side of this issue is defense attorney extraordinaire Christine O'Connor of the Tybout firm.

Attached you will find three items: the IAB ruling in Eugene Watson v. Wal-Mart Associates, IAB# 1303174 (10/13/09), a copy of the Superior Court's appellate decision in this same case, Eugene Watson v. Wal-Mart, Associates, 09A-06-002 (RBY), Young (6/16/10) and finally, the real prompt for this post, a letter from the DE Supreme Court issued to counsel dated 2/1/11 requesting supplemental memoranda (no more than 15 and no less than 7 pages in length) addressing the following issues:

*       "What objective standards could be used to determine whether a claimant's job search is 'reasonable'? In responding to this question, please analyze case law from other jurisdictions as well as relevant legal treatises such as Larson's Workers' Compensation Law."

*       "Should the economy, including the unemployment rate, be considered in determining whether a claimant is a displaced worker? If so, how should it factor into the analysis?"

*       "Should there be an inference that claimant's disability, or work limitation, is the reason the claimant received either no response from the employer, or received a response but was not hired?  If not, is there a practical method of determining the prospective employer's reason for not hiring the claimant?"

The briefing on this issue will be completed on April 11, 2011 and the matter will be heard by the Supreme Court sitting en banc.  I think I am jealous.  And excited.  It sounds to me like Barry and Chris are going to be making some new law in the area of displaced worker and job search.  What will this do to the usual presumptive authority of the hypothetical labor market survey?  All I can say is I think this is big.  And it feels kind of claimant-oriented........

I will keep you all in the loop regarding the date of the Supreme Court oral argument.  I think this screams "road trip" down to slower lower.....and hopefully it will conclude around lunch time so I can strut my stuff as "the hostess with the mostest".  Lunch is on me.....:>)

Green with envy,
Cassandra Roberts

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