Upon appeal from the Superior Court, Reversed.
Frank J. Gentile, Jr., Wilmington, for claimant below, appellant.
Carl Schnee, Wilmington, for employer below, appellee.
WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.
Upon this appeal, we are called upon to define further the term 'total disability' as used in the Delaware Workmen's Compensation Law. Compare Hartnett v. Coleman, Del.,226 A.2d 910 (1967).
The claimant, Charles W. Ham, was an ordinary unskilled laborer and had been such all his adult life. He reached the eighth grade in school; he had no special occupational training or skills. Prior to his employment by the Chrysler Corporation, he worked at odd jobs including trucking, farming and mill work. For many years prior to the accident here involved, Ham worked for Chrysler as a general laborer, doing pick-and-shovel and janitorial work. In 1962, while working as a clean-up man in Chrysler's paint department, Ham suffered a fractured left hip compensable under the Delaware Workmen's Compensation Law. A compensation agreement was
entered into promptly, based upon temporary total disability. During the ensuing months, Ham remained unemployed. He could not perform the work of his last employment. Chrysler had a program of limited work for employees handicapped on the job, but no such employment was made available to the claimant.
In 1965 when Ham was about 57 years old, Chrysler petitioned the Industrial Accident Board to review the compensation agreement on the ground that Ham's total disability had terminated. After hearing, the Board ordered the temporary total disability terminated and directed the parties to enter into a supplemental agreement for scheduled compensation based upon 75% Loss of use of the left leg. The Board failed to award attorney's fees to the claimant. Ham appealed to the Superior Court and it affirmed upon the record before the Board. Thereupon, Ham brings this appeal.
The scope of our function is to determine whether there was sufficient evidence to support the findings and conclusions of the Board. Hartnett v. Coleman, supra. Accordingly, we have reviewed the evidence. The following, we think, is a fair summary of the medical testimony given by four physicians:
As the result of the hip fracture and treatment thereof, the claimant's left leg is approximately 2 inches shorter than the right. There has been atrophy of the entire left extremity, consisting of approximately 2 inches in the circumference of the thigh and about 1 inch in the circumference of the calf. Because of malalignment during union of the fracture, the claimant's foot is twisted into an abnormal position. During treatment for the hip fracture, Ham suffered a nerve palsy causing a foot drop; the drop has been corrected but the foot remains weak and numb.
Although the claimant's left leg will bear weight, loss of motion in the hip and malposition of the foot prevent normal weight bearing. The flexion in the claimant's hip is approximately 90 degrees. The claimant has difficulty in bending and reaching a full crouch. Prolonged standing causes back discomfort. He cannot lift or carry objects weighing more than 25 pounds. He cannot perform strenuous, manual, or heavy work. His work activities are limited to unnamed 'sedentary' or 'light'  or 'bench' work. Any work that the claimant could do regularly would be restricted to about 50% Standing time and would not require lifting, bending, or prolonged walking or climbing. As to the claimant's permanent loss of use of the leg and foot, the medical testimony varied between 60% And 80%. In addition to physical injuries, the claimant's emotional and mental outlook regarding his work-life has been impaired. Thus was the claimant's future work capability described in the medical testimony.
The claimant testified that he suffers pain if he remains in the same position any length of time; that his foot becomes numb; that he is unable to stand without pain and must use a cane or crutch to get around; that because of pain and the position of his foot, he must walk 'a bit sideways'.
In Hartnett v. Coleman, supra, we stated that the degree of compensable disability depends upon the degree of impairment of earning capacity. To be more specific, the determination of total disability requires a consideration and weighing of not only the medical and physical facts but also such factors as the employee's age, education, general background, occupational and general experience, emotional stability, the nature of the work performable under the physical impairment, and the availability of such work. The proper balancing of the medical and wage-loss factors is the essence of the problem. 2 Larson, Workmen's Compensation Law, § 57.10; Unora v. Glen Alden Coal Co.,377 Pa. 7, 104 A.2d 104 (1954). Otherwise stated, the finder of fact must take into consideration not only the medical testimony but also the facts and circumstances that may relate to the claimant as a 'unit of labor' in his handicapped condition. A workman may be totally disabled economically, and within the meaning of the Workmen's Compensation Law, although only partially disabled physically. In this connection, inability to secure work, if causally connected to the injury, is as important a factor as the inability to work. Lightner v. Cohn,76 N.J.Super. 461, 184 A.2d 878 (1962); 2 Larson, Workmen's Compensation Law, § 57.61.
In Hartnett, we approved the principle of the so-called 'odd lot' doctrine.  The term is used to refer to a worker who, while not completely incapacitated for work, is so handicapped by a compensable injury that he will no longer be employed regularly in any well known branch of the competitive labor market and will require a specially-created job if he is to be steadily employed. In lieu of the 'odd lot' or 'nondescript' terminology sometimes used in this connection, we choose to refer to such worker, hereinafter, as one 'displaced' from the regular labor market.
The origin of the doctrine and its related rule of evidence may be found in Cardiff Corp. v. Hall, 1 K.B. 1009 (1911):
'But, on the other hand I am also of the opinion that there are cases in which the onus of shewing that suitable work can in fact be obtained does fall upon the employer who claims that the incapacity of the workman is only partial. If the accident has left the workman so injured that he is incapable of becoming an ordinary workman of average capacity in any well-known branch of the labour market--if in other words the capacities for work left to him fit him only for special uses and do not, so to speak, make his powers of labour a merchantable article in some of the well-known lines of the labour market, I think it is incumbent on the employer to shew that such special employment can in fact be obtained by him. If I might be allowed to use such an undignified phrase I should say that if the accident leaves the workman's labour in the position of an 'odd lot' in the labour market, the employer must shew that a customer can be found who will take it.'
The doctrine and the rule have been widely adopted. E.g., Unora v. Glen Alden Coal Co., supra; Lightner v. Cohn, supra;
Page 262Transport Indemnity Co. v. Industrial Accident Commission,157 Cal.App.2d 542, 321 P.2d 21 (1958); Lunsford v. A. C. Lawrence Leather Co.,189 Tenn. 293, 225 S.W.2d 66 (1949); Richardson v. City of Tampa, Fla., 175 So.2d 43 (1965); In re Iles, 56 Wyo. 443,110 P.2d 826 (1941); Wheeler v. Northwestern Metal Co.,175 Neb. 841, 124 N.W.2d 377 (1963); General Motors Corp. v. Boggs,109 Ga.App. 839, 137 S.E.2d 569 (1964). A modern version of the rule has been stated by the Pennsylvania Supreme Court in the leading case of Unora v. Glen Alden Coal Co., supra:
'* * * Where the injured person can handle only a specially-created job, one light of effort and responsibility but laden with rest and comfort (employment plums that do not often dangle from the tree of everyday economics) the burden is on the defendant-employer to show that such a job is in fact within reach. If proof of that fact is not presented, the claimant then is entitled to a finding of total disability. * * *.'
Applying the rule, we hold that a 'displaced' claimant must be deemed totally disabled, within the meaning of the Workmen's Compensation Law, unless the employer is able to show the availability of regular employment within the claimant's capabilities. The rationale of the rule is fair and logical, we think, and in the spirit of the Workmen's Compensation Law. If the labor market offers regular employment to a claimant, so handicapped by a compensable injury as to disqualify him from obtaining regular work in any well known branch of the competitive labor market, the employer is in a better position to ascertain that fact than is the employee. Under such circumstances, the burden of proof fairly and properly rests with the employer.
Returning to the instant case: the uncontroverted evidence clearly shows that Ham's condition, at the time of the hearing before the Board, left him in the 'displaced' category. He ...