Clerk's ability to do sedentary work prevents collection of benefits

In Delaware cases to terminate total disability benefits, the employer must show that the worker is no longer totally incapacitated. Then the worker must establish that she is a "displaced worker" or that she made reasonable efforts to secure suitable employment. If the worker is unable to establish her burden, total disability benefits will be terminated.

Case name: Jefferson v. Bank of America, No. N10A-04-016 JRJ (Del. Super. Ct. 12/17/10).

Ruling: The Delaware Superior Court held that a bank was entitled to terminate a data entry clerk's total disability benefits because she was capable of returning to work in a sedentary capacity.

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What it means: In Delaware cases to terminate total disability benefits, the employer must show that the worker is no longer totally incapacitated. Then the worker must establish that she is a "displaced worker" or that she made reasonable efforts to secure suitable employment. If the worker is unable to establish her burden, total disability benefits will be terminated.

Summary: A data entry clerk at a bank slipped and fell on ice when she tried to use the accessible entrance at her workplace. She suffered injuries to her right shoulder, left leg, and lower back, which the bank accepted as compensable. Prior to her work injury, she suffered from post-polio-related symptoms, including problems with her left wrist, knee, hip, and ankle. The bank filed a petition for review of benefits alleging that she was physically able to return to work. The Delaware Superior Court terminated the clerk's total disability benefits.

The clerk argued that her post-polio syndrome was exacerbated by the work accident, making her eligible for total disability benefits. The bank acknowledged that her preexisting condition was slightly exacerbated but contended that she was capable of returning to work. The court said that the clerk was capable of working in a sedentary capacity based on the restrictions assigned by her chiropractor. Additionally, the clerk's doctor released her for full-time work. The court noted that the clerk herself testified that she could do household chores, took only ibuprofen for her pain, and began using a wheelchair the day before the hearing.

The court also said that the clerk did not allege that she tried to find other employment opportunities that would accommodate her work restrictions. A labor market survey established that there were eight job opportunities available within the clerk's capabilities.

Read more at the WorkersComp Forum homepage.

February 14, 2011

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