Expert Testimony Required for Employee to Establish Disability
Paul Fields worked as a mechanic for H and E Equipment Services, LLC for over 11 years. Mr. Fields alleged an at-work injury to his back on May 24, 2012 when removing a 43-pound battery from a car. His doctor indicated this injury aggravated Mr. Fields’ pre-existing low back problems and concluded that he would be unable to return to work as a mechanic as a result of this injury. After the hearing, Deputy Commissioner Harris found that Mr. Fields had established ongoing disability since May 24, 2012 and awarded him temporary total disability (TTD) benefits and the Full Commission agreed.
The Court of Appeals, in Fields v. H and E Equipment Services, LLC, reversed the Full Commission and found that Mr. Fields had failed to meet his burden of proving disability. Specifically, the Court found that Mr. Fields had failed to produce competent evidence that it was futile for him to seek any other employment under the Russell test, and as such, Mr. Fields had failed to establish disability under Hilliard.
Under Hilliard, an employee must prove disability by establishing three things:
(1) that he or she was incapable after the injury of earning the same wages earned before the injury in the same employment;
(2) that he or she was incapable after the injury of earning the same wages he or she earned before the injury in any other employment; and
(3) that his or her incapacity to earn was caused by the injury.
In order to establish (1) and (2) above, the employee must show one of the following (known as the Russell test):
(1) medical evidence that he or she is mentally or physically incapable of working in any capacity;
(2) evidence that he or she is capable of some work, but has not been able to find any;
(3) evidence that he or she is capable of some work, but that it would be futile to attempt to find any based on age, experience, or lack of education; or
(4) evidence that he or she has obtained employment at a lower wage than the previous employment. The employee need only produce evidence of one of these factors in order to satisfy (1) and (2) under Hillard.
Mr. Fields did not produce any evidence to support (1), (2), or (4) under Russell. This left (3) which required evidence that it would be futile for him to attempt to find work because of age, experience, or lack of education. Mr. Fields did not meet his burden because he offered no testimony from a vocational expert that his pre-existing condition made it futile for him to seek employment. He also offered no labor market evidence, nor did his doctors indicate that his medical condition would preclude him from working; just that he could not return to his pre-injury job. As such, Mr. Fields could not satisfy the first two prongs of Hilliard and could not establish disability so as to entitle him to TTD and medical benefits.
Risk Handling Hints: This case establishes that employees must have expert testimony or at least some other objective evidence of an inability to return to work in order to establish futility under the third prongs of Russell. The employee’s testimony alone will not be enough. Although not specifically outlined in the holding, employees will also want to have expert medical testimony to establish incapacity to work under the first prong of Russell. If the employee does produce an expert or other evidence of disability, defendants will want to retain an expert of their own to contradict employee’s evidence where possible.