Does Working from Home Equate to Permanent and Total Disability?

By: Sherry E. Grant, Esq., Erika L. Vargas, Esq. and Brant H. Bruner, Esq.

In this monthly case law update we discuss whether a work restriction to a "sheltered work environment" automatically means an injured worker is unable to compete in the open labor market, and as a result is 100 percent permanently and totally disabled.  This is the question the 3rd District Court of Appeals attempted to answer in the decision of Hallmark Marketing Corp. v. WCAB (Gannon), No. C077512.  The Court discussed the meaning of a work restriction limiting an injured worker's ability to work only in a sheltered workshop environment and its impact on determining the level of permanent disability. Although this decision is unpublished and not binding authority, it may be used as persuasive authority in proving a total disability case.

At the trial level, a Disability Evaluation Unit rater testified that the sheltered work restriction on its face meant Ms. Gannon was permanently and totally disabled.  The rater testified that the "leading factor for the 100 percent permanent disability is the analogy that she can only work from home which is analogized to the sheltered workshop."

Disability and Working from Home

The workers' compensation judge at trial concluded that the sheltered work environment restriction did not mean the Ms. Gannon was automatically deemed to be 100 percent permanently totally disabled, but because she produced additional evidence that she could not work a consistent number of hours in a work day and she cannot work at predictable times of the day, when combined with the sheltered work restrictions, Ms. Gannon was able to prove she was 100 percent permanent and totally disabled. 

The judge further noted that the defendant did not provide substantial evidence through their vocational expert that Ms. Gannon was able to compete in the open labor market for employment.   While the expert discussed several jobs within Ms. Gannon's limitations, the expert did not discuss her ability to compete in the open labor market for those particular jobs.

The Defendant filed an appeal of the Judge's findings (called a Petition for Reconsideration) and the first Appellate Court (known as the Workers' Compensation Appeals Board) denied the petition.

The Defendant then appealed to the state Appellate Court.  The 3rd District Court of Appeals agreed with the trial judge. The Appellate Court attempted to clarify that once an injured worker has in part established they can only work from home, the burden of proof then shifts to the defendant to show there is work available and what jobs, if any, an injured worker can do within the sheltered work environment and therefore, compete in the open labor market.  On October 15, the 3rd District Court of Appeal issued notice that it will not revisit its ruling in Gannon. 

As advocates for injured workers, we at Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, LLP are keeping a close eye on the cases concerning 100 percent permanent and total disability and the evidence required to successfully pursue these cases.  We will continue to update you regarding this issue and any other changes in the Workers' Compensation system. If you would like to speak with an attorney about your legal options, please call 213-739-7000 or click here.

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