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I am back in the saddle after a holiday break followed by a tad of illness. And as the cases fly out of the IAB at a fast and furious pace, I have been blessed to hear from Henry Davis, Walt Schmittinger, and John Gilbert regarding more Watson cases, as I am now calling them. Or as Walt calls them, the "new hotness"........
For those of you just now tuning in, my initial Watson post was titled "Reversal of Fortune" and appeared on 10/25/11. I suggest you check it out if you do not know what I am referring to by the term "Watson case".....or if you have been living under a rock. Further posts dated 12/12/11 ["Elementary, My Dear Watson..."] and 12/21/11 ["Parks and Recreation..."] will supply the down low on the first 3 cases that were decided by the IAB post-Watson. Bottom line is that thus far, the IAB has distinguished Watson in every case that has come before it.
Turning to today's cases du jour, there are two of them. The belief is that at least the one involving Walt will be appealed so he has declined comment. Henry's case is one he said he intended to challenge but it was not clear to me whether he meant an appeal or simply down the road in terms of the big picture. And as for John Gilbert, on the defense side of Henry's case - he was simply happy to bring it to my attention with the observation that this was a rare appearance for Chief Hearing Officer Chris Baum in "slower lower"..... [yes, I am back to calling it that since it is a term I assign to the lower two counties with nothing but respect and affection....]
So what do we have for you today?
#1 Jerry Guyer v. Atlantic Realty Management, IAB# 1351334 (1/3/12) granting a Petition for Review and distinguishing Watson based on the following:
• This employer was quite small, unlike Wal-Mart, and as such, no adverse implication should be assigned to the inability to offer claimant modified duty
• Claimant's own job search was "minimal"
• Some of the jobs identified in the labor market survey were still available
• Claimant's own doctor had released him for work before the defense expert did
#2 Monica Dixon v. State of Delaware, IAB# 1358419 (12/29/11) granting a Petition for Review as well, and offering the following Watson commentary:
• Claimant deferred her job search after being released by her own doctor, based on the improbable hope she could eventually return to work as a CNA-this is not reasonable conduct
• Claimant testified that she did "not feel any pressure to return to the labor force or even look for work until the State filed the current petition to terminate..."
• Claimant was characterized as being "nonchalant in her job search...."
• Claimant herself demonstrated that she was employable by securing a brief stint with Comfort Suites which she left of her own accord
• A few of the jobs in the labor market survey remained open at the time of the Hearing
What I am now looking for is an IAB decision, should one exist, that finds that Watson applies, denying a Petition for Review. Such an opinion will be a rare and curious bird indeed, worthy of my scrutiny and your understanding. Bring such a creature to my attention and I promise to make you famous.....:>)
With belated and sincere greetings for a happy and prosperous 2012!Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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