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Burkovich v. Haines Fabrication & Machine, IAB No. 1360672 (Oct. 8, 2014).

On remand from the Superior Court, the Board reversed a previous decision and found that the claimant is not a displaced worker.

The claimant, Ralph Burkovich, sustained a compensable injury to his low back on September 1, 2010 when he was electrocuted and thrown across a room. He had been a welder and metal fabricator since he was 12, and it was the only work he had ever done. He later required a lumbar fusion surgery as a result of the work accident and was receiving temporary total disability benefits when Employer filed a petition to terminate his ongoing receipt of those benefits.

The Board first heard the case in September 2013 and, in its original decision, determined that Mr. Burkovich was physically capable of returning to work in some capacity and was therefore no longer medically, totally disabled. However, despite the fact that neither party had argued the issue during the hearing, the Board sua sponte determined that Claimant was a prima facie displaced worker and that his partial disability from the work accident, combined with other relevant factors rendered him unable to secure employment. Therefore, he remained entitled to total disability compensation and the employer’s petition was denied.

The employer appealed the decision to the Superior Court. On appeal, the Board’s finding that Mr. Burkovich was no longer medically, totally disabled was affirmed. As for the displaced worker issue, the Court acknowledged that the claimant had “waived” the argument, but opined that “neither party was afforded a fair opportunity to develop the displaced worker theory” and that “fairness considerations required a remand for further proceedings so the parties can fully develop this theory.”

At the remand hearing, the Board heard argument from both sides regarding whether the claimant was a displaced worker. This time, it concluded that he was not, relying on the fact that the claimant was only 55, that he was a high school graduate and that he had decades of experience where he had developed numerous transferrable skills, including an ability to create, design and complete projects independently and work with sometimes difficult customers. The Board determined that those skills were transferrable to the jobs identified on Employer’s Labor Market Survey. The Board terminated Claimant’s total disability status as of the date of the decision. However, the employer has moved for re-argument on that conclusion and has asserted that, since the Board found in its original decision that the claimant was not medically disabled, the petition should have been granted as of the pre-remand decision in October 2013.

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