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Hallmark Marketing Corp. v. Workers’ Compensation Appeals Board (Gannon) decision issued by California Court of Appeal

On September 21, 2015, the Court of Appeal issued this unpublished decision regarding the 1997 rating schedule.  In essence, the Court of Appeal made two important findings:

  • A “sheltered workplace” or working primarily from home does not automatically result in a 100% permanent disability rating
  • Once an injured worker proves that he or she can only work from home, the employer has the burden to show the injured worker’s ability to compete in the open labor market.

The first finding makes sense and is a case of the Court of Appeal accepting that we are in the “information age” (as the court puts it).  Eloquently put, the court notes the ability of a person to use a computer and the internet “has rendered obsolete the DEU rater’s view that having to work from home necessarily results in 100% permanent disability.”  (slip opinion at p. 7).

The second finding is more important and potentially something which can be used in other cases.  The Court of Appeal comes to the conclusion that an employer must show job availability if an injured worker is limited to working at home by analogizing to the “odd lot” doctrine.  The odd lot doctrine is, essentially, when an injured worker has work restrictions (temporary partial disability).

At that point, the employer must show there is work available that the injured worker can perform.  If there are only “special” light jobs, and they cannot be obtained, then temporary disability benefits must be paid.  The Court of Appeal calls this the “odder lot” due to the limitation to work only at home.

As for the actual case, the Appeals Board still has to address if the evidence supported a finding of 100%, given its initial erroneous opinion with the “sheltered workplace” meaning a 100% rating automatically.

Applicability to other cases

Here, the idea is the employer can rebut the 100% finding with, presumably, vocational expert reporting.  If the injured worker claims they are 100% disabled (or a medical report or even possibly a vocational report) then an employer’s vocational expert can seek to find some “odd lots” the injured worker can do.  Whether a trial judge will agree it is reasonable, of course, is a different matter.

A vocational report must do two things to rebut the finding:  (1) establish that there are available jobs; and (2) establish the injured worker’s ability to compete for those jobs.  The latter is the more difficult but essential part of the vocational expert opinion.  Medical opinions may delineate restrictions in addition to permanent disability values (if they don’t, make sure to depose the physician to have some restrictions stated, even if minimal, to get you something to work with).  The issue of “variable ability” may be a factor, e.g., an injured worker can work for a restricted amount of time or perform certain tasks for a limited amount of time, which a vocational expert should address as well.

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A copy of the opinion is available at

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