Can journeyman collect permanent total disability under the odd-lot doctrine?

A heating, ventilation and air conditioning journeyman was installing ductwork through a vaulted ceiling, which required him to stand and move about on two-inch wide trusses. He lost his footing and fell nine feet to the concrete floor, landing on his tailbone.

By Christina Lumbreras

When he returned to work, he aggravated his back injury carrying tools up a ladder. After two weeks, he quit due to pain. Later, the worker was diagnosed with major depressive disorder and panic disorder with agoraphobia, but he had psychological problems before he was injured. All of the doctors who examined him agreed that physically he was restricted to light or sedentary duty.

He did not return to work but had applied for 30 positions and was registered with a job service. In a report, a vocational specialist identified potential positions for him but noted that the physical demands of the jobs were not known.

After years of treatment, he sought permanent total disability benefits under the odd-lot doctrine. Under the odd-lot doctrine, a worker who is not actually permanently totally disabled is eligible for permanent total disability because his disability and other factors make him de facto unemployable. The Workers' Safety and Compensation Division denied him benefits, finding that the journeyman's inability to obtain gainful employment was due primarily to his psychological condition, which existed before his work injury, and his poor attempt at searching for work. The Medical Commission agreed and upheld the denial of benefits, pointing out the journeyman's young age and ability to further his education. On appeal, the District Court affirmed. The journeyman appealed.

Was the commission correct in finding the journeyman was not entitled to benefits?

A. Yes.The odd-lot doctrine requires an injured worker to enter into a training program to improve his chances of employment.

B.No.The journeyman's preexisting psychological impairments were not the primary reason he could not return to work.

C.Yes.The employer showed through the vocational specialist's report that work the journeyman could perform was available.

How the court ruled: B. The Wyoming Supreme Court held that the journeyman was entitled to permanent total disability benefits under the odd-lot doctrine. McMasters v. State of Wyoming ex rel. Wyoming Workers' Safety and Compensation Division, No. S-11-0107 (Wyo. 03/02/12).

The court said that the parties did not dispute that the journeyman was no longer capable of working in the job in which he was employed at the time of his injury. The court concluded that the journeyman's work injury and psychological condition combined to render him permanently and totally disabled. The court pointed out that he had a stable employment history before his work injury.

A is incorrect. The court said that the odd-lot doctrine did not require a worker to enter into a training program to improve his chances of gaining employment. The commission's reliance on such a requirement was contrary to law.

C is incorrect. The court explained that the report did not identify a single position that he could perform.

Editor's note: This feature is not intended as instructional material or to replace legal advice.

April 12, 2012

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