Under the “odd-lot” doctrine, accepted in the vast majority of jurisdictions, total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market [see Larson’s Workers’ Compensation Law, § 83.01 et seq.]. As explained by Dr. Larson, “[t]he essence of the test is the probable dependability with which claimant can sell his or her services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above crippling handicaps.” Particularly where the employee’s impairment combines with factors such as a lack of education or transferable skills, lack of broad-based employment experience, advancing age, etc., the worker may essentially be unemployable in spite of being able to perform some active duties.
In McMasters v. State ex rel. Wyoming Workers’ Safety and Comp. Div., 2012 WY 32, 2012 Wyo. LEXIS 33 (Mar. 2, 2012), the Supreme Court of Wyoming recently reversed a decision of a county district court that had in turn affirmed the denial of permanent total benefits to an HVAC worker who suffered a compression fracture to his L1 vertebrae when he fell nine feet from a beam to a concrete floor. The worker contended he qualified for permanent total benefits under the “odd lot” rule. The Workers’ Safety and Compensation Division did not dispute that the worker could not return to work as an HVAC journeyman; it contended rather that his failure to obtain alternative employment following the recuperative period was due to a preexisting psychological condition and a poor effort to find work.
Quoting Larson’s Workers’ Compensation Law [current § 83.01], the supreme court found that the worker had established a prima facie case under the odd lot doctrine when he showed he could not return to his former employment and the combination of his psychological and physical conditions precluded alternative employment. The court indicated that when the worker made his prima facie case, the burden shifted to the Division to show that light work of a special nature, which the employee could perform, was available. The court also stated that the Division had presented no evidence of work within the injured worker’s capabilities and had not, therefore, met its burden.