“Odd-Lot”-Like Theory Works in Reverse to Limit Wage Loss Award for NY Claimant

Observing that in determining a claimant’s loss of wage-earning capacity, the New York Workers’ Compensation Board may consider claimant’s functional capabilities, as well as vocational issues (claimant’s age, education, training, skills, etc.), a New York appellate court affirmed a Board decision that found the claimant, who had suffered a lumbar spine injury, had sustained a 50 percent loss of wage-earning capacity and was capable of “medium work” [Matter of Ehrman v. Center for Discovery, 2021 N.Y. App. Div. LEXIS 3340 (May 20, 2021)]. While the Court did not specifically employ the term “odd-lot” in its reasoning, the basis for its decision was completely consistent with the classic workers’ compensation theory, only in reverse.

Background

Claimant, in her capacity as the director of the employer’s equine-assisted therapy program, sustained a work-related injury to her left knee in August 2008, and her resulting claim for workers’ compensation benefits subsequently was amended to include consequential injuries to her lumbar spine, right hip and right knee. At the request of the employer’s workers’ compensation carrier, claimant underwent an independent medical examination in November 2018, by which time she had been working as an advocate for families and children with disabilities for approximately seven years.

The carrier’s examiner found, among other things, that claimant had reached MMI and had sustained a permanent impairment to her lumbar spine with a class 2, severity A ranking. The carrier’s examiner further recommended that claimant avoid lifting more than 20 pounds on a frequent basis and otherwise refrain from “labor-intensive type[s] of work or activity.”

Claimant accepted the findings of the carrier’s examiner as to permanency and, following a hearing, a WCLJ found, as relevant here, that claimant was “capable of performing work involving medium work physical demands” and that she had sustained a 50 percent loss of wage-earning capacity. Upon claimant’s administrative appeal, the Board modified that decision to the extent of finding that claimant had a wage-earning capacity of 50 percent and otherwise affirmed.

Appellate Court’s Ruling

The appellate court initially noted that where, as here, the claimant had sustained a permanent partial disability that was not amenable to a schedule award, the Board must determine the claimant’s loss of wage-earning capacity in order to fix the duration of benefits. In making its determination, the Board must consider a number of factors, including:

• The nature and degree of the work-related permanent impairment;
• Claimant’s functional capabilities; and
• Vocational issues, including claimant’s education, training, skills, age and proficiency in the English language.

The Court added that the first two inputs were medical in nature, while the third involved consideration of a number of vocational factors. Moreover, said the Court, deference was given to the Board’s determination of the medical evidence, as well as its resolution of credibility issues. It was not up to the Court to second-guess the Board’s assessment of the evidence.

The Court continued by saying that claimant’s specialized certifications were of limited value given that she could not return to her former employment as a therapeutic riding instructor and equine specialist in mental health. Nevertheless, even taking into account that claimant was almost 68 years old at the time of the hearing, the fact remained that claimant had a college degree, was proficient in the English language, and had been employed on a full-time basis as an advocate for families and children with disabilities for a number of years. Given the deference to the Board’s evaluation of the relevant evidence, substantial evidence supported the Board’s finding that claimant had sustained a 50 percent loss of wage-earning capacity.

Comment

As I indicated above, the Court did not mention the “odd-lot” theory by name. Under that theory [see Larson’s Workers’ Compensation Law, § 83.01, et seq.], total disability is not to be interpreted as “utter and abject helplessness.” Evidence that a claimant has been able to earn occasional wages or perform certain kinds of gainful work does not necessarily rule out a finding of total disability nor require it to be reduced to partial. Under the rule, an employee who is so injured that he or she can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.

But the reasoning of the theory may also be applied in reverse, as was the case here without specific reference to odd-lot status. In the instant New York case, the claimant had worked as an advocate for families and children with disabilities for approximately seven years. She had a college degree, as well as other skills. The Board was within its discretion to weigh all these factors and say that she did not suffer a total loss of wage-earning capacity.