Did Collision between Forklift, ‘Father Time,’ Produce Permanent Disability?

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In Delaware, a “displaced worker” is generally entitled to total disability benefits. When that’s the case, there may be no end to the payments the employer or carrier must make. A case involving a warehouse worker highlights some of the factors to focus on when attempting to argue that an injured employee is not displaced.

The claimant had worked for his employer for ten years. He had always had physically demanding jobs throughout his career. One day, his forklift fell over, leaving him with a concussion and back and neck injuries. Afterward he had poor memory, focus, and mood. Pain radiated to his upper and lower extremities. It was also hard for him to turn his head, or stand for a long time. He could still drive, but he relied on his family for transportation. 

His doctors did not release him to his old job or anything similar. They concluded that he could do part-time sedentary work. But he would need increased time to complete tasks and rest breaks and he might need someone to help him perform his duties.

The Industrial Accident Board found that he was not a displaced worker, and thus, that he was entitled only to partial temporary benefits. It pointed to the fact that the worker had been employed in a physically demanding job only a year earlier. It also noted that his age did not seem to get in the way of his working, that he completed 10th grade, and that he had no language barrier, drove a car, and had a “delightful personality.”

A displaced worker is one who is so disabled by a compensable injury that he will no longer be employed regularly in any well-known branch of the competitive labor market and will require a specially created job if he is to be steadily employed. If a worker is deemed displaced, he is entitled to total disability benefits.

In determining whether one is a displaced worker, courts must consider physical impairment, coupled with other factors such as the injured employee's mental capacity, education, training, age, general background, experience, emotional stability, the nature of the work performable under the physical impairment, and the availability of such work. 

Was the claimant a displaced worker?

A. No. Although he was 79, he was used to physical labor and his age had never prevented him from working.

B. Yes. His age combined with his physical and mental limitations and limited training meant that any job he took on would have to be specially created.

If you selected B, you agreed with the court in Smith v. Allen Foods, No. S25A-08-002 CAK (Del. Super. 02/11/26), which concluded that the claimant was a “classic” displaced worker. 

The court disagreed with the Board’s view that age didn’t matter. “It is an axiom that Father Time is undefeated,” the court said.  Further, while the claimant worked at a demanding job only a year earlier, that said nothing about his current abilities. It was true that he might be able to work with breaks and help from another employee. But that would constitute a specially created job, placing him squarely within the definition of a displaced worker.

The court was also swayed by the fact that he had not finished high school, had significant physical and mental limitations, had only worked heavy labor jobs, and relied on others for transportation. 

Finally, there was the Board’s comment that the claimant was “delightful.” “I have no doubt this assessment is correct, but it does not help me in answering if he is employable,” the court said. It reversed the Board’s decision.

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