Permanent and Total Disability Award – The Importance of Light Duty Work
2007-10/24 Russell W. Wilson

A recent decision reached by the Wisconsin Court of Appeals has highlighted the serious risk of permanent and total disability of worker’s compensation awards to older workers and the importance of light duty work.  Thomas J. Gutoski, a high school graduate, spent his entire employment life working for one employer, Kohler Company.  Over the years he suffered several work-related injuries, coupled with degenerative arthritis in his neck, that led to permanent restrictions to sedentary or, at most, selective light duty work.  Mr. Gutoski had no job training or formal education beyond high school.  As so often is the case, Kohler ran out of light duty work available within Mr. Gutoski’s permanent physical restrictions and his qualifications.  Mr. Gutkoski filed a hearing application seeking permanent and total disability benefits.

Mr. Gutoski’s vocational expert opined that no work within Mr. Gutoski’s physical restrictions was available to him.  Kohler’s vocational expert responded by identifying ten categories of jobs generally available within Mr. Gutoski’s restrictions and 17 individual employers within a 25 to 35 mile radius whose employment included those job categories.  Kohler’s evidence was not enough, however, to satisfy its legal burden to prove the actual availability of work within Mr. Gutowski’s restrictions.  The Court of Appeals upheld Mr. Gutoski’s award of permanent and total disability benefits.  The employee is not required to disprove the existence of actual jobs that he or she can perform; rather, the employer is required to prove that such jobs actually exist.  If the employer cannot meet its burden of proof, the employee is entitled to permanent and total disability benefits.

Both LIRC and the Court of Appeals acknowledged that the employer’s burden to prove that specific jobs are available to a particular individual “is not easily met,” an understatement if ever there was one.  The Gutowski decision is not new or surprising, but it is an important reminder of the serious risk of permanent and total disability awards in older workers who possess few transferable job skills.  Employers must take such cases very seriously and pursue every possible avenue for return to work with the employer or job placement with other employers.

For further information, please contact Attorney Russell W. Wilson, who prepared this article, or any of the attorneys within the Employment, Labor & Benefits Practice Group of Ruder Ware: Ron Rutlin, Dean Dietrich, Jeffrey T. Jones, Mary Ellen Schill, Christopher Toner, and Sara Ackermann.  

© 2007 Ruder Ware, L.L.S.C. Accurate reproduction with acknowledgment granted. All rights reserved.
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