In Delaware, an employer seeking to terminate a claimant’s temporary total disability benefits has the initial burden to demonstrate the claimant is no longer physically unable to work at any capacity. The burden then shifts to the claimant to prove if they are a displaced worker. A worker can be prima facie or actually displaced. Prima facie displacement is based upon a variety of factors including physical impairment as well as the worker’s age, education, and work background. Actual displacement deals with a reasonable but unsuccessful job search, which is attributed to the work injury. To rebut a displaced worker finding, the employer must demonstrate job availability for the claimant in the open labor market.
The problem with cases involving undocumented workers is how an employer proves job availability for a claimant who cannot legally be employed. In Roos Foods v. Guardado, 152 A.3d 114, 122 (Del. 2016), the Supreme Court of Delaware considered an employer’s appeal of a decision of the Industrial Accident Board (“Board”) as affirmed by the Delaware Superior Court. The employer, Roos Foods, had filed a petition with the Board to terminate Ms. Guardado’s total disability benefits on the ground that the worker was no longer disabled and could return to work. The Board denied the petition, finding that Ms. Guardado was prima facie displaced based solely on her status as an undocumented worker and further finding that the employer had not demonstrated there was work available for Ms. Guardado within her capabilities. On appeal, the Delaware Superior Court affirmed the Board’s decision. The employer then appealed to the state’s Supreme Court.
The Supreme Court of Delaware found held that a claimant’s undocumented worker status does not automatically make them a displaced worker but should be considered in the context of actual displacement. The Court acknowledged the reality that there are undocumented workers in Delaware and indicated employers can use “reliable market evidence” to demonstrate such job availability. The Court remanded the matter to the Industrial Accident Board.
Upon remand, the employer retained Dr. Desmond Toohey, Assistant Professor of Economics at the University of Delaware, who prepared a report on jobs that exist for undocumented workers in Delaware. Dr. Toohey estimated there to be 28,000 undocumented workers in Delaware, 80% of which are employed. He identified the occupations and industries employing such workers and estimated the number of workers in these fields. Dr. Toohey then compared the jobs identified in the employer’s Labor Market Survey to the number of undocumented workers in the corresponding occupations and industries. He concluded there were thousands of undocumented workers employed in Delaware in the types of occupations and industries identified in the Labor Market Survey.
The Board still found the claimant to be a prima facie displaced worker based upon her education, experience, and work restrictions but opined that the employer’s Labor Market Survey rebutted her prima facie displacement. The Board held that Dr. Toohey’s testimony and report met the “reliable market evidence” standard. The employer’s Termination Petition was granted. The claimant appealed.
In an unreported decision, which was later affirmed by the Delaware Supreme Court, the Superior Court affirmed the Board’s decision (2018 WL 776422). The Court explained the burden on the employer is to demonstrate: first, the availability of jobs for the claimant; and second, such jobs are within the categories of occupations and industries employing undocumented workers in Delaware. The Court found the employer’s Labor Market Survey met the first element and Dr. Toohey’s testimony met the second.
This ruling provides some level of clarity as to what may be required of employers to meet the Delaware Supreme Court’s “reliable market evidence” standard and how to terminate total disability benefits for undocumented workers. Based upon the current case law, employers should strongly consider retaining an expert in labor and economics to provide evidence on the types of jobs and industries in which undocumented workers are employed in Delaware, as well as a medical opinion on work capabilities and a vocational specialist to generate a Labor Market Survey.
 Guardado v. Roos Foods, Inc. 2018 WL 776422 (Del. Super. 2018).
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