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What Do You Think: Can 72-Year-Old Former Baker Seeking PTD Status Still Bring Home Bacon? 

02 Nov, 2023 Chris Parker

las vegas 1620961 640
                               

Las Vegas, NV (WorkersCompensation.com) -- A worker is severely injured but not totally incapacitated. Can he obtain permanently totally disabled status? 

A Nevada case involving a former bakery employee applies a well-known doctrine in answering that question. In that case, the claimant injured his left arm and left wrist at work and was declared 27 percent permanently partially disabled. Doctors concluded that he needed multiple work restrictions to accommodate his injuries. 

During the ensuing years, the claimant continued to suffer health issues stemming from the severe injuries and from complications. A doctor subsequently evaluated him and concluded that he was permanently totally disabled.  

The worker asked the insurer to adjust his claim to PTD status, but the insurer refused. At the time, the claimant was 72-years-old, was taking opioids for the injuries, and had a high school education. 

Ultimately, an appeals officer agreed to the PTD label, citing the “odd-lot doctrine.” The officer pointed out that the claimant had suffered from a significant loss of use of his upper left extremities and did not have the sort of training that would permit him to find gainful employment in a field unrelated to his prior work experience. 

The insurer, concluding that the appeals officer’s opinion was half-baked, challenged it in court. It’s argument: the employee wasn’t totally incapacitated and could still work. 

The odd-lot doctrine permits a finding of PTD when a worker, while not altogether incapacitated for work, is so disabled that he will not be employed regularly in any well-known branch of the labor market. Factors to be considered in applying the odd-lot doctrine include, among others, the worker's age, experience, training, and education. 

Was the former baker entitled to PTD status? 
A. No. He wasn’t completely helpless; he could still function to some extent. 
B. Yes. Based on his age, education, and experience, he wasn’t qualified for a regular job. 

If you chose B you sided with the court in Bimbo Bakeries v. Powell, No. 84801-COA (Nev. Ct. App. 10/23/23), which found that the employee was PTD. 

The court noted that a worker needn’t be completely helpless to be PTD under the odd-lot doctrine. 

The court pointed out that the appeals officer considered the claimant’s age, the nature of his injury, his education level, his work history, in reaching his decision, the court observed.  

Here, the evidence before the appeals officer showed the claimant suffered from a severe physical impairment. “[T]here was no evidence [the claimant] had the sort of training that would permit him to find reliable and steady employment given his condition, and the nature of [his] work history and his advanced age would hinder his efforts to be hired in a position that could accommodate his restrictions,” the court wrote. 

The court concluded that the appeal’s officer correctly applied the odd-lot doctrine to find the claimant was PTD. 


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