Calogero v. City of New Orleans

• Decision Date: 23 December 1980
• Docket Number: No. 80-C-2336,80-C-2336
• Citation: 397 So.2d 1252
• Parties: Robert G. CALOGERO v. CITY OF NEW ORLEANS.
• Court: Louisiana Supreme Court

Page 1252

397 So.2d 1252

Robert G. CALOGERO v.CITY OF NEW ORLEANS.

No. 80-C-2336.

Supreme Court of Louisiana.

Dec. 23, 1980.

Salvadore Anzelmo, City Atty., Deborah C. Ziegler, Asst. City Atty., for defendant-applicant.

Charles A. Kronlage, Jr., Kronlage, Dittman & Caswell, New Orleans, for plaintiff-respondent.

PER CURIAM.

In Oster v. Wetzel, 390 So.2d 1318(La.1980)this court adopted the odd-lot doctrine under which the claimant is entitled to benefits for total disability when he establishes a prima facie case that, because of his physical impairment and of other factors such as his mental capacity, education, and training, he can perform no services other than those which are so limited in quality, dependability or quantity that a reasonably stable market for them does not exist, and when the employer does not successfully rebut the prima facie case with evidence that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to his residence.

The "odd lot" concept can be also applied in substantial pain cases where an injured worker, because of his injury, can function only with substantial pain or with the help of fellow workers, he may not be considered a particularly desirable employee.Thus, if the worker's pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he could be treated as an "odd lot" worker in the determination of his claim for total disability benefits.SeeDusang v. Henry C. Beck Builders, Inc., et al., 389 So.2d 367(La.1980).

The presence of substantial pain may logically cause an injured worker to fall into this odd-lot category, inasmuch as it directly affects "the probable dependability with which the injured worker can sell his services in a competitive labor...