Safety and OSHA News

Is worker really permanently totally disabled?

An employee’s injury rendered him physically unable to do the job he had performed for years. Does that mean he should receive permanent total disability benefits under workers’ comp? 

Bennie Satcher was a welder for Howard Industries in Mississippi. On Sept. 15, 2010, Satcher injured his neck, shoulder and arm while lifting and pulling during his welding work.

An MRI showed Satcher had a herniated cervical disc. After conservative treatment that included physical therapy didn’t work, Satcher had back surgery in July 2012 – a cervical fusion.

In February 2013, a doctor determined Satcher had reached maximum medical improvement. He was released to go back to work with permanent work restrictions, including that he limit how often he lifted, and if he did, it had to be under 40 pounds.

Satcher attempted to return to his welding job in April 2013, but he felt neck pain from wearing the required protective face shield. Because of the pain, Satcher was medically restricted from working as a welder, and Howard Industries didn’t offer him any other employment.

In May 2013, Howard Industries hired a vocational services company to evaluate Satcher for post-injury employability. Satcher had previously worked as a flood hand, derrick hand, and roughneck on oil rigs, as well as a concrete sidewalk finisher and a maintenance worker. However, all of these jobs required him to lift more than 40 pounds.

Satcher finished the 11th grade but didn’t graduate from high school. He had no other formal work training. He was 48 when he was injured. These factors impacted what types of jobs he could hold.

A vocational counselor found Satcher was employable based on his physical capabilities. Satcher applied for a number of jobs that were forwarded from the vocational services company but was never hired.

One of the jobs Satcher applied for was re-employment at Howard Industries. When he did, the HR manager noticed on Satcher’s new application that he’d been convicted of aggravated assault. Satcher had stated on his original application to Howard Industries that he’d been convicted of a felony, but he failed to give details. Despite the company’s policy that prohibited hiring people convicted of certain crimes, it never looked into Satcher’s case. Satcher had been allowed to work there for four years up to the time of his injury in violation of the company’s policy. For whatever reason, the company decided to enforce the policy the second time around.

Satcher hasn’t worked since.

An administrative judge found Satcher had a total loss of wage-earning capacity due to his work-related injury. The judge awarded Satcher total disability benefits.

On appeal, the Mississippi Workers’ Compensation Commission affirmed the AJ’s decision on a two-to-one vote. The Commission noted:

“The Employer has essentially taken the position that the Claimant is not disabled and can work, just not for the Employer.”

The Commission also found the vocational expert’s testimony that Satcher was employable “did not carry great weight.”

Howard Industries appealed the Commission’s decision to a state court.

Was he able to earn a living?

Howard Industries argued Satcher wasn’t permanently and totally disabled. The company also contended that his case was similar to one previously decided in a Mississippi appeals court, Hill v. Mel Inc.

The appeals court agreed with the Commission that Satcher should receive permanent and total disability benefits under workers’ comp. The court wrote:

“Instead of offering Satcher other employment that he could perform, Howard Industries hired vocational experts to find other jobs for him that were not with the company. As the Commission noted, Howard Industries refused ‘to mitigate its exposure’ … by retaining Satcher in a different position within his restrictions.”

The court also faulted Howard Industries for using Satcher’s felony conviction as a reason not to employ him the second time around when it failed to investigate his criminal record the first time he was hired.

The court noted that in Hill the employee attempted to return to work at his former employer in a position within his physical restrictions, but no such position was available. However, by the time of his hearing, the worker had found a job. In that case, the employee wasn’t found permanently and totally disabled.

Of course the difference between Hill and Satcher’s case is that Satcher never found other work after a good-faith effort.

For those reasons, the appeals court upheld the Commission’s decision that Satcher should receive permanent and total disability benefits under workers’ comp.

Lesson for employers: When you can’t find physically suitable work for an injured worker, you take the gamble of being on the hook for workers’ comp benefits instead. That’s not to say that you have to create an alternate position for a worker when one doesn’t exist. But the clear message from this state court is that the company couldn’t have it both ways: It can’t deny the worker re-employment and contest that he was permanently and totally disabled when he couldn’t find work elsewhere.

(Howard Industries v. Bennie Satcher, Court of Appeals of Mississippi, No. 2014-WC-01750-COA, 1/5/16)

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Comments

  1. What’s interesting about this situation to me is that the man is unemployable not only due to his injury, but also apparently because of his own life choices.
    As an example, I have a family member who worked in a very labor intensive field and was severely injured in a job related incident which was caused by another employee’s inattention. He had several surgeries and a lot of missed time because of the injury, a lot of that time he was bedridden. He knew that he’d never be able to go back to his old craft because he wasn’t physically capable of carrying material. While on light duty he started helping his safety manager for his company and eventually moved in to that field. 15 years later he still works for the same company and is now a Safety Manager and is doing very well.
    I understand that not everyone is going to have that kind of opportunity or the aptitude to be successful at it, but I’ve seen a lot of men out there who have worked these type of heavy labor jobs in to their 50’s who are struggling physically. This man is not unemployable in general. He doesn’t have the skills or training for the type of non-physical work he needs and that’s due to his life choices. It is interesting to me that only the company is being held accountable for their part in restricting his employment options.
    Well, that’s just my opinion.

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