This is an interesting case because the W.C.C.A. affirmed the compensation judge’ decision to deny the employees claim for temporary partial disability benefits after two low back injuries on 9/10/2008 and 11/16/2009, both of which were admitted injuries. The employee worked as an EMT and a full-time training coordinator at the time of both injuries with a substantial weekly wage. The reason for fairly high average weekly wage was that the employee worked significant overtime before both injuries.
Subsequently, the employee’s job as an EMT was terminated because the County decided to contract with an outside service for those services.
Ultimately, the employee’s claims for TPD benefits were denied because the employee failed to conduct a diligent job search, even though she remained employed after both injuries and after leaving the County. She obtained a job for North Memorial Health Care System in August 2010, and worked full-time, but had a claim for ongoing wage loss of about $200.00 per pay period.
This was a substantial evidence case in which the compensation judge found that the employee’s actual earnings were not an accurate reflection of her earning capacity and in essence, the presumption was rebutted by the employer and insurer, based on the failure to conduct a diligent job search. The compensation judge found that because the employee had worked significant overtime prior to both injury dates, but then after leaving the County job, she had not continued to work overtime once she obtained other employment.
Here, the compensation judge requires that the employee look for or attempt to work overtime if her date of injury weekly wage included significant overtime. However, had the employee shown that she continued look for work, work as much overtime as was available in her new position, or that she diligently followed the rehabilitation plan, the employee likely would have prevailed on her claim for temporary partial disability benefits.