In my post of 10/25/11, titled "Reversal of Fortune", I announced the Delaware Supreme Court decision in Watson v. Wal-Mart, and expressed a number of concerns, along with some commentary from fellow members of the work comp bar, as to whether this holding would herald the demise of the labor market survey as we know it. And ever since then I have been on the lookout for the first IAB opinions to address a Termination Petition post-Watson.
And in the spirit of holiday giving, here they are. Marcos Davila v. Johnny Janosik, IAB #1270972 (12/7/11) and Jamie Williamson v. Dennison Landscaping, IAB #1349750 (12/6/11). They are simply, my gift to you. Courtesy of Hearing Officer Julie Bucklin, both representing cases tried to the Board in Milford in the last two weeks. Of note, two different panels adjudicating......
I will leave you to read the decisions, since there is rarely anything magical in consideration of a Review Term. But in keeping with the tradition of this season of benevolence, I will also share what this humble author believes can be taken from these two rulings, in tandem:
• Watson is not triggered if the claimant is not credible• Watson arguably does not apply if the claimant is not limited to sedentary/light duty work• Watson may not apply if the employer is not as large as Wal-Mart and thus no presumption that if they cannot place the claimant with his restrictions, no one can• Watson does not apply if the LMS jobs are still available at the time of the hearing• Watson does not apply if the claimant did not make a good faith job search
So-How do I love thee? Let me count the ways Watson does not apply. Splendid news for some, disappointing news for many.
"Reversal of Fortune"? I guess for once I spoke to soon...... :>)
Irreverently yours,Cassandra Roberts
Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts
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