Wednesday, January 27, 2021


Marlene Stewart was a middle-aged employee at Subway when she had an accident. Prior to the accident, she stood most of the time, made sandwiches, and filled food containers. In other words, she had no trouble performing her job duties. After her accident, it is undisputed that Stewart became permanently and totally disabled. She did have substantial preexisting injuries, however, and had been receiving Social Security Disability benefits since 1997. Prior to her employment with Subway, Stewart had a history of arthritis, reflex sympathetic dystrophy, degenerative joint and bone disease, carpel tunnel syndrome, and many other issues. She had only worked 29 months out of the previous 11 years before her job with Subway.

The issue in her workers’ compensation case was whether Stewart was permanently and totally disabled prior to her most recent injury. The Second Injury Fund argued that she was permanently and totally disabled prior to her injury at Subway, and therefore, there was not liability to the SIF for her injuries. The commission found that Stewart only became permanently and totally disabled after her injury at Subway.

The Court agreed that an employee who is already permanently and totally disabled before his/her last workplace injury cannot create liability to the SIF for the most recent workplace injury. The Court, though, found that Stewart’s previous injuries did not leave her permanently and totally disabled, and therefore the SIF was liable to her for her most recent injury. The Court determined that Stewart had not received any special accommodations after previous injuries when she secured employment with Subway, where she sustained the most recent injury. Therefore, Stewart was able to compete in the open labor market and was not permanently and totally disabled until her last injury.

The true impact of Stewart, though, is the Court’s stated deference to the commission’s disability determinations. The Court found that it is the “special province” of the commission to determine if a claimant was permanently and totally disabled either before or after his/her most recent accident. The Examined five cases examining a similar issue and found that in only one instance had a court strayed from the commission’s decision on this issue. Therefore, it is safe to say that a commission’s determination of when a claimant is permanently and totally disable is extremely unlikely to be disturbed on appeal.