Claimant was a part-time bus monitor who reports disabling back pain after she tripped and fell in January 2009. Prior to the injury claimant was not capable of any duties beyond sedentary work due to multiple prior medical conditions and he had been awarded social security disability benefits. She further limited her hours in in 2007 to about 20 hours a week because of intolerance to sitting and standing due to chronic back pain and fibromyalgia. She settled a case with the employer for 12 1/2%. Her expert indicated that her pre-existing limitations were profound.
The vocational experts disagreed what was meant by "working" in the open labor market. The SIF expert indicated that 'normal' competition in the open labor market required an ability to work full-time. Claimant required accommodations due to her limited physical activities and couldn't tolerate full-time work or anything other than sedentary duties.
The ALJ indicated that part-time status was consistent with working in the open labor market, that her job was not an accommodated job structure and she had obtained the position through "normal channels" and maintained the position for more than 2 years. The Commission found the accident caused new pain and limitations, and disregarded a medical opinion that claimant's accident did not cause any new occupational limitations. The Commission was also within its discretion to review medical records that indicated after the accident claimant had identified minimal new pain complaints or that she had no findings of sciatica.
The court deferred to the Commission on conflicting evidence if claimant was gainfully employed or not. It affirmed a finding that working part-time was consistent with gainful employment at least in this case. "Our affirmation of that determination should not be interpreted so broadly as to suggest that all part-time employees would necessarily be found to be competing in the open labor market." The fact that claimant might be regarded as unemployable by social security did not prevent worker's compensation from reaching an opposite conclusion.
The court noted that the return to work after the accident could be a failed return to work: "this does not necessarily mean that she was not PTD or that SPS would not have hired her at that time..." for other reasons such as loyalty or to avoid "training costs."
The court criticized the SIF brief noting that it in part it did not comply with the rules, mis-characterized the evidence that 3 out of 4 experts found claimant totally disabled and made non sequitur arguments that claimant was totally disabled and not totally disabled.
Atty: Morrison, Harris
Experts: Koprivica, Lala, England