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Thread Title: "ODD-LOT" Doctrine
Created On Sunday December 07, 2008 8:06 AM

rumbler
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Sunday December 07, 2008 8:06 AM

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Hi All! Can someone explain what the "Odd-Lot" Doctrine is, and how it might affect a PD rating?

I have tried to figure it out, but it is somewhat confusing! For instance, if an IW is unable to perform "regular" work on a sustained and consistent basis ( 40 hours per week) due to their symptoms, limitations and side-effects from treatment, but MIGHT be able to do some type of part-time work on a fairly limited basis, but NOT on a sustained or consistent basis, is THIS considered "odd-lot" emplyment?

IF so, how does this affect the PD rating, if at all?

Any clarification would be greatly appreciated!!

Thanks in advance!

Sincerely,

Rumbler

Loislane
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Sunday December 07, 2008 2:18 PM

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I have NO PERSONAL knowledge of this Doctrine in any of my cases.
I did a cursory Google search, and have not found much that applies in CA. There are no cites to it in my Ca Labor Codes.

I did find a general statement about the doctrine. However, knowing your background, and how well and how much you do research issues, my guess is you also found it. Based on what i have read, it appears that it applies to folks that were bascially blue collar workers, without any additional job skills or education.
"...A person with few skills and limited intelligence" (THAT AINT YOU HONEY!!!!)

As you have marketable job skills, and you are also quite articulate and educated, I can't see that it would be applicable in your situation.

Here is what I found on Google.

"Workers Compensation has complex rules and provisions designed to bring fairness to injured workers. The "odd lot" doctrine applies to injured workers who've lost their ability to find work because they've acquired a handicap that wouldn't necessarily block others from employment.

For example, sometimes a worker becomes unable to work, not solely because they got sick or hurt, but also because of such factors as aptitude and education level. For example, a person with few skills and limited intelligence who loses partial use of a hand might then be capable of sheltered employment only. This could support a finding of total permanent disability.

Sometimes the courts require such a claimant to show a proper work search or apply the doctrine only until the claimant has had time to learn new skills.

A state may make the odd lot doctrine part of its law. For example, in Tennessee a trial judge may authorize permanent partial disability benefits for someone who's found to have permanent medical impairment and is eligible to receive the maximum Disability award. The law sets out the conditions under which a judge can give the status."

Lois

Edited: Sunday December 07, 2008 at 2:19 PM by Loislane

STEVEPSCA@YAHOO.COM
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Monday December 08, 2008 5:39 PM

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I don't know that it's actually referred to as 'odd lot' or not, but SSA uses VR professional witnesses at a ALJ hearing to testify to a claimants ability to perform in the open labor market...and find 'gainful employment', this is used of course to find a claimant 'disabled' under SSA rules.

There are also claims in WC where the IW is found 100% PD due to the inability to complete a VR program and therefore unable to compete in the open labor market...warranting the 100%PD/WPI rating...this has been discussed many times here... (though I can't remember what it's actually called...'LeBoeuf'..???)

art
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Monday December 08, 2008 11:12 PM

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All,

Here I've always thought we were all "odd lots" merely by being stuck here in WC.

Steve,

As much of WC law/procedures are less than clear and endlessly being sorted out, your reference to "Le Boeuf" is another example. If for industrially based physical and/or psychological disabilities you were found unable to complete a VR program, you could be found 100% PD based on that criteria. However, those on the defense side question that as a viable metric once VR ceases to exist this Jan. 1. (It's kind of a Catch-22.) No VR means you can't fail it so in theory no more Le Bouef, and yet those who would have qualified will still continue to arise/exist.

Expect more clucking and flying feathers as the opposing parties make their respective cases.

I'm just glad I wasn't frozen to the sidewalk overnight like that dog in Sheboygan last week!

Happy Hannaqwanzamis and/or Festivus.

Later...

RBaird
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Thursday December 11, 2008 11:24 AM

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Stew's invaluable Index has only a limited number of entries for "Odd-Lot Doctrine". If you have access to case law, it is discussed in Gen Foundry (Jackson) 51 CDCC 375 and more recently in Roberts 65 CCC 219. I dimly recall the Jackson case and don't think I have a copy although it is significant for perhaps other reasons. I believe it is discussed briefly in St. Claire's treatise which has been updated and is currently in print. It is an obscure point and probably not worth serious exploration.

Jpod
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Thursday December 11, 2008 4:04 PM

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I have had some recent experience using the odd lot doctrine to determine if TTD was owed when the employee was fired for cause, unrelated to the injury. The employee asssaulted another employee, throwing a 100 foot steel tape measure which struck the co-worker in the head rendering him unconscious.

The question was whether the employee would be owed TTD since he had been on light duty when the termination occurred. The odd lot doctrine anwered the question.

I do not know how it could be applied to PD, but it might have been in the olden days. As I recall the seminal case was from the 1930s, but I am not sure my memory is accurate.

Perhaps an example is helpful. Let's say the employee is a truck driver but can not drive b/c of a work injury. The employee's doctor released the employee to light duty. The employer provided light duty until the unrelated termination. The odd lot doctrine says that if the light duty job is a job that is generally available in the open market place (a clerk for instance) rather than a job that was created just for this particular employer situation and really is not a job that exists in the real world then the job the employee was perfroming is considered an odd lot. Since it is an odd lot job, and the purpose of WC is to keep injured employees from becoming wards of the state, TTD is due notwithstanding the termination for cause. If it can be shown that the light duty job is not an odd lot job then TTD is not due b/c the fired employee can seek employment that he was engaged in until the termination.

In our case we paid the TTD b/c the light duty was considered odd lot and not a job generally available in the open labor market.

RBaird
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Friday December 12, 2008 11:41 AM

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I think JPod has it right, odd-lot doctrine may apply in selected cases to T/D determination. P/D rate is normally determined on earning history/capacity, and excludes from consideration factors such as intelligence, illiteracy, mono-lingual, etc. except as to the exceptional situation outlined in LeBouef (extent of disability even if unscheduled or not a presumptive total precludes any significant participation in labor market).

mkomkom
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Thursday December 18, 2008 9:11 AM

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Good explanation Jpod! Jpod is right on, like usual. He describes the exact scenario I have seen it in.

What you are looking for in regards to PD is the "sheltered work" doctrine. In essence, an IW can be considered total permanent (100%) if the only work they can do is specialized (sheltered) and not generally available in the open labor market. Hence, a person can receive a 100% award and still be working full time.

RBaird
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Thursday December 18, 2008 11:08 AM

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I believe there have been some recent case law developments on non-industrial factors effecting preclusion from gainful employment, including intelligence, mono-lingual, and education. Don't recall if published or en banc, but it could be read as a pulling back from LeBouef. Sorry, don't have the cite. I would be astonished if any 100% case would be capable of full time work, even in a sheltered workplace or self-employed and would represent an outlier. All the permanent total cases I saw were very badly damaged people...

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