By: Cassandra Faline Roberts
You gotta love those Men of Mondell and their ever-capable confrere Elissa Greenberg. The work comp defense bar can always count on them to carry the banner of our cause with considerable aplomb and a skill set that most would envy in terms of legal acumen and persuasiveness. And in the instant case, a behemoth of an adversary……none other than Walt Schmittinger, whose Daddy was, in my estimation, the Dean of the Claimant Comp Bar……. So the stage was set for perhaps the battle of the century, the long-awaited Remand Hearing in Magdalena Guardado v Roos Foods, IAB 1405006 (51817).
Bottom Line: The employer prevailed, with a labor market survey in tandem with testimony from Dr. Desmond Toohey, Associate Professor of Economics at the University of Delaware. The vocational rehab specialist was Ellen Lock of Coventry. The Employer’s Petition for Review as granted as of date of decision and the labor market survey was able to match the pre-injury wage basis, so there was no concomitant award of temp partial.
Of note, there was a preliminary ruling that the claimant was a prima facie displaced worker. The injured worker, testifying with the assistance of an interpreter, arrived in the United States in 2004 but had only been employed for the last 5 years– by Roos Foods, where her duties were essentially unskilled labor. She had a fused left wrist as a result of the work accident, and wore a brace on her non-dominant hand. Had the claimant not achieved prima facie displaced worker status, the Board would not have deemed her to be actually displaced, given a lackluster job search consisting of 11 employment applications “unduly restricted to a single industry (restaurant/food services).”
However, the Board also embraced the “reliable market evidence” mandated by the Supreme Court’s earlier decision, consisting of the data and testimony of Dr. Toohey, juxtaposed with the labor market survey. Some of the benchmarks of job availability included the following:
- Of the approximately 28,000 undocumented workers in the State of Delaware, roughly 80% of those are gainfully employed.
- Of the various occupations and industries identified in the labor market survey, Dr. Toohey testified that “there are several thousand unauthorized immigrants in each.”
- The total labor force in Delaware is 500,000-600,000, and the undocumented worker population is approximately 20,000-25,000 workers.
- Vocational testimony included the observation that the need for Spanish-speaking employees is on the rise.
So back to my Men of Mondell, who were asked to weigh in. From Andy Carmine:
My first comments are that Gary and Elissa deserve the props as their work on the briefs and preparation for the hearing on remand made the difference. In my opinion, the Supreme Court’s decision and the Board’s application of that decision provide a fair and equitable remedy for addressing the issue of undocumented workers’ entitlement to ongoing total disability benefits, as the door is not closed on either party moving forward. There will be undocumented claimants who are able to meet their burden to establish themselves as displaced workers and employers that are able to successfully rebut that contention . That is the way the displaced worker doctrine should be applied, rather than an across-the-board disqualifying factor.
And from his partner Gary Baker:
As Andy noted, I think the biggest thing to come out of this is the rejection by the Supreme Court of the per se displacement of all undocumented claimants. However, as to yesterday’s order, the expectations of the Court in terms of what the employer had to prove in order to satisfy job “availability” from a statistical/sociological perspective were far from clear and still subject to further evaluation. Andy did a superb job of identifying an expert, and meeting the burden of proof on an untested legal proposition and coming out on the winning side. However, I suspect there are still more chapters to this story.
I agree with Gary that we have not seen the last of the challenge on this issue. To the extent that Walt appeals, I will keep you posted.