In the unpublished case of Hallmark Marketing Corp. v. WCAB and Gannon, Carol Ann Gannon sustained an industrial injury in December 2000 affecting her low back, neck, and bilateral carpal tunnels while working for Hallmark Marketing Corporation. Permanent disability was evaluated using the 1997 disability rating schedule. She has motion segment loss at two lumbar spine levels after two surgical fusions, one in 2004 and the other in 2007 and has a “failed back syndrome with chronic pain.”
The AME reported that Gannon “would be unable to sustain six to eight hours of work every day in a constructive, productive and consistent fashion. [She] would be able to work out of her home [(which actually means, in her home)] probably six to eight hours a day where she would be able to rest and take breaks and ‘spread’ the workday into a longer period. . . . [She] would be able on certain days to probably work between four and six hours a day, but other days not, and therefore I would consider that [she] is probably 100% disabled solely based on her orthopedic condition . . . .”
The WCJ disagreed with the rater’s conclusion that an industrial injury that limits the employee-applicant to working only from home is necessarily 100% permanent disability (termed a “sheltered workshop” or “sheltered workplace” by the DEU rater). The WCJ, instead, applied the following legal standard: An injured employee is 100% permanently disabled if having to work from home is necessitated by limitations that also render the employee unable to compete in the open labor market and awarded total disability. On reconsideration the WCAB did not adopt the WCJ’s legal standard but affirmed the 100% award based on the DEU rationale.
The Court of Appeal reversed finding that the WCJ used the correct standard. “The applicant has the initial burden, under this standard, to show that she can work only from home in work that is not generally available; if the applicant meets this burden, the burden shifts to the employer to establish the applicant’s ability to compete in the open labor market (i.e., to show there is work available that the applicant can perform).”