Not too long ago, we posted an item discussing the “odd lot” doctrine in workers’ compensation law. The basic idea is that you can show you’re an odd lot employee by making a showing that your injury makes you basically unemployable in any well-known branch of the labor market. If you can do that, it’s equivalent to showing that you’re totally disabled, and you’re well on your way to winning your case.
There are a bunch of factors the court can take into account in determining whether a worker is an odd-lot employee, including his “reasonable but unsuccessful effort to find steady employment, vocational or other expert evidence demonstrating suitable work is not available for the worker, the extent of the worker’s physical impairment, intelligence, education, age, training, and potential for retraining.” No one factor is more important than the others, and you don’t have to even have looked for work to be considered an odd lot employee. (See 2010 source below).
But here’s the thing: the defendant, your employer, can give evidence too. You can produce enough evidence to show that you’re an odd lot employee—you’re totally disabled and essentially unemployable—but your employer can rebut that evidence by showing that there actually are jobs available that you can reasonably do with your disability.
Oscar Newton (not his real name—see 2014 source below) sought workers’ comp for an injury he received at work from falling off a ladder. One of the ways he sought to show he was totally disabled was by claiming he was an odd lot employee. Now, Mr. Newton had lived a long and complicated life. He had immigrated to the U.S. as an adult and never learned to read or speak English, although he understands some when spoken. At the time of his hearing, he was 57—an age when most people are thinking about retirement.
Mr. Newton had plenty of evidence on his side showing that he was disabled: a functional capacity report found that his hip injury rendered him 16 percent permanently impaired, and that he could only do light duty work, with plenty of rests from standing or walking. But the big impediment to Mr. Newton’s finding work was his lack of English skills—and at the time of his hearing, Mr. Newton hadn’t many any attempt to improve his English skills. He had been off work for two and a half years, and also hadn’t taken any vocational training.
Mr. Newton seems to have not counted on the evidence against him. A vocational expert gave evidence that she had enabled people with limited English skills to get jobs in the past. The expert performed a labor market survey in Mr. Newton’s geographic area and found eight to ten jobs he could apply for. She also contacted several potential employers and came to the conclusion that most, if not all of them, would hire Mr. Newton, if only he would apply.
Deputy Workers’ Compensation Commissioner James F. Christenson determined that based on this evidence, Mr. Newton wasn’t an odd lot employee after all. There were jobs out there, and Mr. Newton hadn’t bothered to apply for them. He also hadn’t tried to make himself more employable by taking classes. Although it was clear that Mr. Newton was at least partially disabled, he was not an odd-lot employee.
Maybe if Mr. Newton had applied for those jobs, he would have gotten one. Maybe he wouldn’t have, and then he would have had stronger evidence to present at his hearing. If you’re unsure of what to do with your workers’ comp claim, get a lawyer to handle the rough stuff for you. I like to say to my clients, "Help me to help you." If we can help you, call the Lombardi Law Firm to speak with attorneys Steve Lombardi and Katrina Schaefer. We can be reached at 515-222-1110 or by emailing us at [email protected] and [email protected] We look forward to your call.
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