Wednesday, April 07, 2004

permanent and total loss of industrial use

The Court of Appeals also does not recognize that Hakala does not say its rule only applies to vision cases. Halaka said that an uncorrected test is to be used in that T&P case even though the inquiry was not “loss of industrial use”. It is no “exten[sion]”, therefore, of Halaka to say it applies to T&P loss of industrial use cases. A corrected test would be more – not less – applicable in a “permanent and total loss of industrial use” case where the inquiry is economic than in a strict physical impairment situation as in Hakala. Non-economic T&P cases demand a corrected test because “the concept of permanence . . . involv[es] . . . consideration of medical treatment options.” O’Connor, citing Larson. That “concept of permanence” plus an economic inquiry most assuredly requires evaluation with assistive devices.

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