Benefits Review Board, December 2011, Part 3

James E. Collins v. Electric Boat Corporation: BRB No.: 11-0359, dated 12/21/2011.  ALJ No.: 2009-LHC – 00919, dated 01/06/2011

This is the third reported case in a series of oral hearings in Rhode Island on 10/25/2011.  The case illustrates that an employer takes an employee as he finds him; that one injury can lead to worse and worse; a simple trip can turn into a permanent total disability; an unrelated condition can mess up recovery and another condition can mess up alternative employment.  There are also questions that are not laid to rest in the decisions.

From the ALJ decision we find that the claimant, a 46 year old employee for over 20 years, had weight problems.  He weighed at various times between 350 and 400 pounds.  This condition was not related to his employment.  On September 2, 1997, he tripped over power cables in the yard, injuring his right knee; and on December 3(?), 1997, he reinjured the same knee stepping onto an unsecured platform.  The BRB states that he injured his knee at work on December 2, 1997.  The December 3 date is probably a misprint, since elsewhere the ALJ decision refers to December 2 as the date of injury.  He had surgery on February 27, 1998 to repair a meniscus tear.  He returned to light duty on December 21, 1998. 

On August 15, 2005 he went on medical leave for obesity related surgery.  By this time, his left knee was symptomatic because of the right knee; and he needed total knee replacements.  He could not have the total knee replacements because of his weight problem.  He needed two surgeries for weight loss.  These were eventually performed by December 2006, when the worker was cleared to return to employment essentially unchanged.  His primary care physician and his two weight loss surgeons cleared him to return to work.  His knee surgeon stated he was permanently and totally disabled due to his obesity and the restrictions for his knees.  In August 2007 a doctor appointed by the employer agreed that he could not return to his old job and imposed restrictions on any alternative employment.   The employer paid temporary total disability from 2/27/1998 to 12/20/1998; and a total of 74% to the knee, 213.12 weeks or $103,731.9.  Its theory was that there was alternative employment available to him, within his restrictions, and therefore no further compensation was due.  Trial was set for August 10, 2010.

The evidence, of course, turned on the availability of jobs within the worker’s restrictions.  Most of the restrictions were related to his obesity, because there was a limit to the amount he could walk, or sit at any one time.  A (second) labor market survey was prepared on July 20.  The adjuster had sent a letter to the knee surgeon asking him to confirm that the list of six jobs in the survey were suitable.  The doctor sent a reply that appeared to suggest that they were, but neither the adjuster’s letter nor the reply were shared with the employee’s attorney until after the ALJ’s deadline for exchanging documents before trial.  The ALJ, over the employer’s objection, refused to admit the letter in evidence.  The BRB affirmed the ALJ’s decision. 

Further, the employee objected that most of the jobs were not available to him because of his work-related (and already compensated) hearing loss.  The employer’s protests that they did not know about the hearing were weakened by their lawyer’s admission before the BRB that they did.  (Although it is nowhere mentioned in either the ALJ or BRB decision, the claimant seems to have worked for the employer exclusively, so they must have been the employer that paid the hearing loss.)  The labor market surveyor did not know of the hearing loss. 

The BRB noted that the employer had a previous survey done in December 2007, and had not diligently followed up on finding alternative employment.  The employer complained that by using an already compensated condition in considering alternative employment for a different and unrelated condition, the claimant was being compensated for the same injury twice.  The BRB explained that the hearing loss was part of the background of suitability of jobs for the claimant and must be admitted.  The ALJ had found there were no jobs available and that therefore the claimant was permanently totally disabled, from December 19, 2006.

This means that in terms of compensation alone, a case which the employer had hoped to close at just over 4 years compensation with no annual increases, will now run to about 25 years with annual increases, currently averaging about 3.05% per annum. 

What does not appear from the decisions is whether the period of “light duty” was really a full return to work, or whether it was in fact temporary partial disability.  Further, all the problems of the weight loss surgery were apparently to allow for a total knee replacement.  There is nothing to suggest that after all the dust has settled, the knee replacement surgery ever took place.  And, for devotees of the Special Fund, it does not appear that an application for relief under §8(f) was ever presented to the Department of Labor.