The appeal in this workmen’s compensation case involves the burden of proof imposed upon the employer who seeks termination of total disability compensation of the employee.
The Industrial Accident Board terminated the employee’s total disability status, ruling that, in view of the medical testimony that the employee had recovered sufficiently to return to his regular work, the “problem in this case preventing the claimant’s employment is a lack of proper motivation.” The record shows that the employer made an offer of proof of the “availability of regular employment within the claimant’s capabilities” [Ham v. Chrysler Corporation, Del.Supr.,
*736
Upon appeal, the Superior Court held that the employee was a “displaced” worker, within the
Ham
definition; that the employer had failed to sustain the burden of proving the availability of regular employment, imposed by
Ham
upon an employer seeking to terminate a “displaced” employee’s total disability compensation; and, thereupon, the Superior Court reversed the Industrial Accident Board. See Opinion below at Del.Supr.,
We agree with the Superior Court’s conclusion that the record in this case establishes the employee’s status as that of a “displaced” worker within the test and definition of the Ham case: When injured, the employee was working at his regular job of a steel fabricator and erector. His work regularly required him to work high above ground level. The accident here involved was a fall from a structure about 18 feet high, resulting in injuries to left arm and leg. The employee was ultimately found to have a 25% permanent loss of use of the left leg, based primarily upon lack of flexion. Such regular employment and such permanent loss of use notwithstanding, the medical testimony was to the effect that the employee could do the various physical acts required by his work as a steel erector and fabricator, “if he is motivated enough to go out and work.”
The employee testified that after release by the doctor, he made numerous attempts to obtain employment—all without success: He stated that because of his condition, he could not work as a steel fabricator and erector. A roofing company, for which he had previously worked, refused to employ him because of the accident and because he had leg surgery. An application at another roofing company was also unsuccessful, presumably for the same reason. The employee applied for “anything that was available” at the local General Motors plant but was told that, in view of the accident history, there was nothing “light enough there for him to do” that they “just didn’t want to take the chance” on him because of his injury. He also applied for work unsuccessfully at the local Chrysler plant and at various building contractors. He attributed his failure to obtain work with building contractors to lack of training and experience and to the attitude that he was a “bad risk” because of the leg injury. The employee has also applied for work, without success, at the iron worker’s union and the electrician’s union, seeking an apprentice status because of lack of experience and training in those trades. He has been spending his time helping his wife with her household chores.
None of the employee’s testimony, regarding unsuccessful efforts to obtain employment, was rebutted.
We think it clear from the uncon-troverted evidence that the employee’s compensable injury left him in the “displaced” worker category. As stated in
Ham,
“inability to secure work, if causally connected to the injury, is as important a factor as the inability to work” in determining the “displaced” worker status (
We are thus in agreement with the Superior Court’s conclusion that this employee falls within the “displaced” worker
*737
category and that the employer had the
Ham
burden of proof. We are in disagreement, however, with the Superior Court’s refusal to remand the case to the Board with instructions to afford to the employer the opportunity to sustain that burden of proof, as the employer had attempted to do by the tender of proof which was rejected by the Board. This Court has consistently afforded the employer that opportunity upon remand. Ham v. Chrysler Corporation, Del.Supr.,
Accordingly, the Superior Court’s reversal of the Industrial Accident Board is affirmed, but with instructions to remand the cause to the Board for the purpose of affording to the employer the opportunity to sustain its Ham burden of proof.
For the sake of clarity, we take the occasion to state that the burden-of-proof rule of the
Ham
case is intended to apply only in “displaced” worker cases. It is not intended to apply in every case in which the employer seeks to terminate total disability compensation, as is indicated in the opinion of the Court below. See
In this class of case, we apply the “general-purpose principle on burden of proof”, approved at 2 Larson, Workmen’s Compensation Law § 57.61, pp. 88.16-88.19: If the evidence of degree of obvious physical impairment, coupled with other factors such as the injured employee’s mental capacity, education, training, or age, places the employee
prima facie
in the “odd-lot” category, as defined in
Hartnett
and
Ham,
the burden is on the employer, seeking to terminate total disability compensation, to show the availability to the employee
*
of regular employment within the employee’s capabilities. This was the situation in
Ham
and in Bigelow v. Sears, Roebuck & Company, Del.Supr.,
Notes
See Abex Corporation v. Brinkley, Del.Super.,