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WPI155.07.01Permanent Total Disability—Special Work

6A WAPRAC WPI 155.07.01Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 155.07.01 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
July 2019 Update
Washington State Supreme Court Committee on Jury Instructions
Part XI. Workers' Compensation
Chapter 155. Workers' Compensation
WPI 155.07.01 Permanent Total Disability—Special Work
If, as a result of an [industrial injury] [occupational disease], a worker is able to perform only odd jobs or special work not generally available, then the worker is totally disabled, unless the [Department] [employer] proves by a preponderance of the evidence that odd jobs or special work that he or she can perform is available to the worker [in the relevant labor market] on a reasonably continuous basis.
NOTE ON USE
Use bracketed material as applicable. Use this instruction, with WPI 155.07 (Permanent Total Disability) if there is an issue of whether the injury restricts the worker to odd jobs or to special work not generally available. When it would be helpful to the jury in resolving issues in the case, further instruction may be necessary clarifying the particular worker's relevant labor market. See the Comment below.
COMMENT
RCW 51.08.160.
This instruction is taken from Allen v. Dep't of Labor and Indus., 16 Wn.App. 692, 559 P.2d 572 (1977). It is error to refuse a “special work” instruction when the evidence warrants it. Wendt v. Dep't of Labor and Indus., 18 Wn.App. 674, 571 P.2d 229 (1977).
If the injury or disease leaves a worker in such a condition that the worker can no longer follow his or her previous occupation or any other similar occupation, and is fitted only to perform “odd jobs” or special work not generally available, “the burden is on the department [or insurer] to show that there is a type of work that [the worker] can in fact obtain.” Kuhnle v. Dep't of Labor and Indus., 12 Wn.2d 191, 198–99, 120 P.2d 1003, 1007 (1942). Also see Spring v. Dep't of Labor and Indus., 96 Wn.2d 914, 640 P.2d 1 (1982); Hiatt v. Dep't of Labor and Indus., 48 Wn.2d 843, 297 P.2d 244 (1956); Wendt v. Dep't of Labor and Indus., 18 Wn.App. 674, 571, P.2d 229 (1977). Such work must be shown to be reasonably continuous employment and not temporary in nature. Allen v. Dep't of Labor and Indus., 30 Wn.App. 693, 638 P.2d 104 (1981).
A fitness for odd jobs or special work negates a claim for total disability only when it is shown that such work is available to the worker in the worker's relevant labor market, a concept implicating geographic and other practical considerations.
In a case involving questions of the scope of a worker's relevant labor market, an additional instruction may need to be drafted to aid the jury. For the geographic component, reference may be made to WAC 296-19A-010(4) and pertinent decisions of the Board of Industrial Insurance Appeals. Other pertinent practical considerations could also be enumerated for the jury to explain what is sometimes referred to as the “competitive labor market” (i.e., the real world of employment as opposed to the purely theoretical description of jobs).
For a discussion of the difference between general work and special work, see Graham v. Weyerhaeuser Company, 71 Wn.App. 55, 856 P.2d 717 (1993), overruled on other grounds, Leeper v.Dep't of Labor & Indus., 123 Wn.2d 803, 872 P.2d 507 (1994). The court differentiated “special work” from “general work” by characterizing general work as work that is generally available in the labor market while special work is not generally available.
[Current as of November 2016.]
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