odd-lot doctrine in Utah

2011Applicability of the Odd-Lot Doctrine ¶ 18 Olsen next argues that he is entitled, under the facts of this case, to permanent total disability benefits by virtue of the odd-lot doctrine, which classifies employees as totally and permanently disabled when they "cannot be rehabilitated and even though not in a state of abject helplessness can no longer perform the duties . . . required in [their] occupation[s]." Marshall v. Industrial Comm'n, 681 P.2d 208, 212 (Utah 1984) (alterations and omission in original) (internal quotation marks omitted).

1997In deciding there was medical causation and in applying the odd lot doctrine, the Hardman court relied on its earlier decision in Marshall v. Industrial Commission, 681 P.2d 208 (Utah 1984).

2017The burden Par describes is one applicable to claimants seeking permanent total disability benefits by virtue of the “odd-lot” doctrine, a doctrine that “allows the Commission to find permanent total.disability when a relatively small percentage of impairment caused by an industrial accident is combined with other factors to render the claimant unable to obtain employment.” Zupon v. Industrial Comm’n, 860 P.2d 960, 963 (Utah Ct. App. 1993) (citation and internal quotation marks omitted). ¶ 27 Par has not demonstrated that the odd-lot doctrine applies here.

2015Fogleman also argues that the odd-lot doctrine requires an evaluation of the Work Accident and non-Work Accident impairments. | "The odd lot doctrine allows [the Board] to find permanent total disability when a relatively small percentage of impairment caused by an industrial accident is combined with other factors to render the claimant unable to obtain employment." Zupon v. Industrial Comm'n, 860 P.2d 960, 963 (Utah Ct. App.1993).

1997Accord Zupon, 860 P.2d at 962 (holding Commission did not err in finding claimant’s arthritic condition, which was unrelated to industrial accident and was not caused by industrial injury, was cause of claimant’s inability to work); Zimmerman, 785 P.2d at 1131 (holding findings of Commission that industrial accident did not in any way aggravate preexisting condition and all residual problems were due to preexisting condition were supported by substantial evidence); Ortiz, 766 P.2d at 1095 (holding Commission properly denied claimant’s motion for permanent total disability where it adopted medi

1993Zimmerman, 785 P.2d at 1132 . “ ‘[Ujnless the claimant has suffered a compensable industrial injury, the [odd lot] doctrine is inapplicable no matter how compelling the other factors.’ ” Id. (quoting Ortiz v. Industrial Comm’n, 766 P.2d 1092,1094 (Utah App.1989)) (modifications in original).

1993ODD LOT DOCTRINE The odd lot doctrine “allows the Commission to find permanent total disability when a relatively small percentage of impairment caused by an industrial accident is combined with other factors to render the claimant unable to obtain , employment.” Zimmerman v. Industrial Comm’n, 785 P.2d 1127, 1131 (Utah App.1989).

1993To qualify as a recipient of benefits under the odd lot doctrine, an employee must first “prove that he or she can no longer perform the duties required in his or her occupation.” Zimmerman, 785 P.2d at 1131 .

1997For example, a low percentage of physical impairment is not per se less than total permanent disability.” Id. at 1326 ; see also Hoskings v. Industrial Comm’n, 918 P.2d 150, 154 (Utah Ct.App.) (“Under the ‘odd lot’ doctrine, the Commission may find permanent total disability when a relatively small percentage of impairment caused by an industrial accident is combined with other factors to render the claimant unable to obtain suitable employment.” (footnote omitted)), ce rt. denied, 925 P.2d 963 (Utah 1996); see generally 1C Arthur Larson & Lex K.

1996Hardman, 725 P.2d at 1326-27 .

2015See generally Mercado v. Labor Comm'n, 2014 UT App 268, ¶¶ 12-13 , 339 P.3d 158 (holding that the Board had a "suffi- , cient basis" for denying the employee's benefits under the odd-lot doctrine); Olsen, 2011 UT App 70 , ¶¶ 11, 18-25, 249 P.3d 586 (reviewing the odd-lot doctrine's applicability to an employee's claim for permanent total disability benefits). 10 , We use this phrase cautiously.

2015See generally Mercado v. Labor Comm'n, 2014 UT App 268, ¶¶ 12-13 , 339 P.3d 158 (holding that the Board had a "suffi- , cient basis" for denying the employee's benefits under the odd-lot doctrine); Olsen, 2011 UT App 70 , ¶¶ 11, 18-25, 249 P.3d 586 (reviewing the odd-lot doctrine's applicability to an employee's claim for permanent total disability benefits). 10 , We use this phrase cautiously.

2011See Smith v. Mity Lite, 939 P.2d 684, 688 (Utah Ct.App. 1997). ¶ 19 In attempting to demonstrate that he falls into the odd-lot category, it is the burden of the claimant to "present a prima facie case that no regular, dependable work is available to him . . . [by] presenting] evidence that he can no longer perform the duties required in his occupation and that he cannot be rehabilitated to perform some other type of employment." Peck v. Eimco Process Equip.

2011See id. at 578 . ¶ 25 Additionally, although Olsen presented at least some evidence that his injury kept him from continuing with his job at Utah Concrete, he presented no evidence indicating that he could not be rehabilitated to perform a different job.

2011This failure also obviated the need for the Commission to consider additional contextual factors such as Olsen's "age, education, training, and mental capacity" affecting his ability to continue working or to be rehabilitated, see Peck, 748 P.2d at 574 .

1997For example, a low percentage of physical impairment is not per se less than total permanent disability.” Id. at 1326 ; see also Hoskings v. Industrial Comm’n, 918 P.2d 150, 154 (Utah Ct.App.) (“Under the ‘odd lot’ doctrine, the Commission may find permanent total disability when a relatively small percentage of impairment caused by an industrial accident is combined with other factors to render the claimant unable to obtain suitable employment.” (footnote omitted)), ce rt. denied, 925 P.2d 963 (Utah 1996); see generally 1C Arthur Larson & Lex K.

1997The Workers’ Compensation Act provides, in pertinent part: “Each employee ... who is injured ... by accident arising *687 out of and in the course of his employment ... shall be paid compensation for loss sustained on account of the injury.” Utah Code Ann. § 35-1-45 (1988) (amended). 1 Accordingly, a claimant must satisfy two prerequisites to receive compensation for an injury: “First, the injury must be ‘by accident.’ Second, ... there [must] be a causal connection between the injury and the employment.” Allen v. Industrial Comm’n, 729 P.2d 15, 18 (Utah 1986).

1987See Norton, 728 P.2d at 1027 ; Hardman v. Salt Lake City Fleet Management, 725 P.2d at 1326 .

1986See, e.g., Halstead Industries v. Jones, 603 S.W.2d 456 (Ark.1980) (permanent total disability awarded with fifteen percent physical impairment); and Employers Mutual Liability Insurance Co. of Wisconsin v. Industrial Commission, 25 Ariz.App. 117 , 541 P.2d 580 (1975) (physical functional disability of fifteen percent).