The Employee, age 77, sustained a shoulder injury in August 2020 which was admitted. The Employer and Insurer had an IME in January 2021 after the Employee was referred for surgery. The IME found that the Employee did sustain an injury and recommended an injection and also found the rotator cuff tear to be unrelated to the work injury and instead a pre-existing condition.
Ultimately the Employee underwent a total shoulder replacement in March 2021. The Employee reached MMI in October 2021 and was given permanent restrictions.
The initial rehab plan included returning to work with the date of injury employer, however after having these permanent restrictions, the Employee indicated she was not intending on returning to work as a part time nurse. A job placement plan and agreement was completed in November 2021.
The Employee ended up accepting a job as a greeting card merchandiser working approximately 9 hours per week at a wage loss. She requested additional hours but was told she was given all available hours. The QRC found this to be suitable and consistent with the rehab plan. The Employer and insurer took no further action and did not object.
At the Employer and Insurer’s request a QRC then conducted a vocational evaluation. He identified a number of jobs within the restrictions and it was his opinion she could do more to remedy her loss of earnings and he did not find her current position to be economically suitable. The Employee then on her own continued a job search and pursued leads from this QRC but did not receive any job offers.
Later the Employee made claims for various benefits and at issue was whether her injury remained a substantial contributing factor to her ongoing disability. The Judge awarded her claim in entirety. The Employer and Insurer appealed.
The only issue on appeal was the award of ongoing TPD benefits. The Employer and Insurer asserted the ongoing wage loss was not related to her work injury and that they had rebutted the presumption that her actual earnings are not representative of her earning capacity.
The WCCA found the employer and insurer basically presented the same arguments that did not persuade the compensation judge at Hearing. At Hearing the judge relied upon record as a whole including the testimony of the QRC and the Employee. The WCCA finds it was reasonable to come to this conclusion given the unique facts of the case.
The WCCA also agrees the Employer and Insurer did not rebut the presumption of her earnings not being reflective of her earning capacity as she fully cooperated with rehab services, requested additional hours, and pursued additional job leads. This finding of the compensation judge was reasonable.