Eugene Watson v. Wal-Mart Associates, Del. Supr., C.A. No. 442, 2010, (October 21, 2011) (en Banc)

Claimant suffered a compensable work injury to his low back while working as a laborer, a freight loader, for Wal-Mart. Following surgery, which did not relieve his pain, Claimant's treating physician and the defense medical expert agreed that Claimant could perform only sedentary to light duty work, with no lifting greater than 20 pounds. Employer filed a petition to terminate Claimant's ongoing total disability benefits. The only issue before the Board was whether Claimant was a displaced worker.

Claimant presented evidence of a job search that he performed after Employer filed the petition to terminate. Claimant testified that he applied for 28 jobs, without success. Two potential employers responded to Claimant's applications with letters indicating that they could not hire him due to his physical disability. Claimant received no other responses to his job applications. Claimant agreed that some of the potential jobs required lifting greater than his 20 pound restriction.

To rebut Claimant's displaced worker claim, Employer presented a labor market survey and vocational testimony regarding nine jobs in the open labor market that were within Claimant's physical limitations and vocational capabilities. According to Employer's vocational expert, 12 of the 28 jobs for which Claimant had submitted applications were outside of his physical restrictions. Three of the remaining 16 jobs (all of which were identified in the labor market survey) had been filled by the time Claimant submitted his applications.

The Board found that Claimant had not met his burden of proving that he was a displaced worker because his job search was not adequate and he failed to demonstrate that he was denied employment because of his work injury. The Board based its conclusion on the fact that Claimant had not heard back from most of the potential employers; some of the jobs were not hiring; and other jobs were beyond his restrictions. In addition, the Board held that the labor market survey and vocational testimony refuted Claimant's displaced worker claim by identifying jobs within Claimant's physical restrictions that were available in the open labor market. Accordingly, the Board granted Employer's petition to terminate and awarded partial disability benefits based on the labor market survey. The Superior Court affirmed.

On appeal, the Supreme Court reversed holding that the only conclusion that was supported by substantial evidence was that Claimant was a displaced worker. The Supreme Court held that the Board was required to accept the undisputed evidence that Claimant had applied for 28 jobs, including 6 jobs from the labor market survey, and the only two responses he received indicated that he could not be hired due to his disability. The Court also held that Employer's failure to re-hire Claimant for a position within its many, large retail stores was strong evidence that he was a displaced worker. According to the Court, a small labor market survey indicating the possibility of available jobs, was not enough to overcome Employer's failure to re-hire Claimant, let alone Claimant's unsuccessful job search. It concluded that Employer had to demonstrate that appropriate jobs were actually available and that prospective employers would hire, not merely consider hiring, a person in Claimant's position to rebut the displaced worker claim.