Jensen v. SD Warren
August 11, 2017
CategoriesDurational Limit Permanent Impairment Durational Limit Permanent Impairment
Back Depression Permanent Impairment Rating Farris v. Georgia-Pacific
Summary from the Troubh Heisler Attorneys
S.D. Warren filed petitions seeking to determine PI and to terminate Jensen’s partial incapacity benefits due to the 520-week durational limit in §213. S.D. Warren introduced medical reports stating that Jensen had a partial work capacity and had 5% PI from his back injury. Jensen testified that he felt depressed about his disability, and he introduced office notes from his physician noting that he was depressed due to his lack of function, but he did not produce a medical opinion stating that his depression caused any additional PI.
Judge Stovall ruled that Jensen had carried his burden of producing evidence that raised a genuine issue that his PI may exceed the applicable threshold, as required by Farris v. Georgia-Pacific. Since S.D. Warren did not present evidence that Jensen had no work-related depression or that his PI including depression did not exceed the threshold, Judge Stovall denied S.D. Warren’s petitions.
On appeal the Appellate Division panel held that, to meet the burden of production, an employee must present some evidence that his PI is above the threshold; mere possibility or speculation of additional PI is not enough. In this case, Jensen had the burden of producing a medical PI rating for depression that would yield a combined impairment rating above the threshold. Since Jensen failed to produce a medical opinion putting his PI above the threshold, the panel reversed Judge Stovall’s decision and granted S.D. Warren’s petitions terminating Jensen’s partial incapacity benefits.