Happy to hear from Meghan Butters of Weiss and Saville. Today’s post is one of Meghan’s cases and it would not be understatement to say that this one represents a big victory for Meghan and possibly a smidgen of a claimant-friendly precedent (you gotta just love those). Here is what Meghan had to say:
“I just received this decision today from the Board. I thought it may be a possibility for your blog. It was Claimant’s DACD Petition for a recurrence of total disability following surgery. Employer paid for the surgery and the parties stipulated that all medicals were work related. The only issue for the Board was whether Claimant removed himself from the workplace prior to his surgery. The Board found for Claimant on this one.“
Good job, Meghan! She doesn’t really tell us what the proposition is (they never do). I think that is my job. So here is what I would offer:
· It is not necessarily unreasonable for an injured worker to not be working in a time frame leading up to surgery
· Where claimant is on a TTD status for some of the so-called period of voluntary removal and aggressively seeking work for most of the remainder, he is not really out of the labor market
· If the employer is paying temp partial (as they were here) in a given time frame, arguing that the claimant is removed from the labor market in that same time frame…..well, it is talking out of both sides of its mouth (the Board actually stated this far more diplomatically than I have)
· Where the purpose of the surgery is to allow claimant to potentially return to his one of his pre-injury vocations (in this case truck driving or construction), the Board will be loath to find a retirement status…..this is more of an “atta boy!”
The case is William Mohr v. Bear Materials, IAB# 1352296 (5/6/12).
I have included the photo above as sent to me minutes ago by Sweet Caroline. She has completed her study abroad in Pamplona followed by a quick visit to Aix-en-Provence (where rumor has it she purchased a Longchamp tote for her ever-deserving Mama), and is now enjoying a vacation stop on the Isle of Capri with friends who have a summer home there. This view of the Amalfi Coast really has me hankering to get out of the office and start my own long weekend…… So I will!
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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