On 30 May 2008, plaintiff sustained a work-related to his right shoulder while employed as an estimator. On 21 November 2008, plaintiff was laid off as part of a company-wide reduction in staffing due to lack of work. Plaintiff later underwent surgery on the right shoulder and defendants initiated disability benefits. When plaintiff was released with permanent restrictions, defendants attempted to terminate plaintiff's benefits via Form 24 on the grounds that plaintiff was unable to prove ongoing disability as a result of his injury. The Form 24 was denied, but defendants were able to terminate plaintiff's benefits following successful appeals before the Deputy Commissioner and Full Commission, which found that plaintiff was capable of returning to work as an estimator but for the current economic downturn affecting the construction industry as a whole. As a result, plaintiff's current wage loss was deemed unrelated to his compensable injury.
Claude Medlin v. Weaver Cooke Construction, COA 13-159 (Sept. 3, 2013)
In a split decision filed on 3 September 2013, a majority of the Court of Appeals affirmed the Full Commission Opinion and Award. Citing Hilliard, the Court held that an injured worker's incapacity to earn wages must be caused by the compensable injury. According to the majority, plaintiff was unable to establish disability resulting from his work injury. The Court focused on defendants' uncontroverted evidence that plaintiff was capable of returning to work in his regular duty pre-injury position as an estimator but for the current economic downturn. The majority also referenced Segovia, a case in which the plaintiff was laid off due to a decline in business with his benefits ultimately terminated when he could not establish that his loss of earnings was due to any disability arising from the injury.
The dissent argued plaintiff proved he was disabled under the second Russell prong because he had been unable to obtain employment after a reasonable job search. As a result, the burden shifted to defendants to establish that there were suitable jobs available that plaintiff was capable of obtaining taking into account his physical and vocational limitations. The majority disagreed with the dissent's interpretation that the second prong of the Russell test was sufficient to establish disability by itself without producing evidence of any causal connection between the inability to locate work and the work injury. A Notice of Appeal to the Supreme Court has been filed in light of the dissent.
Submitted by Joy Brewer, Brewer Defense Group.
