The employee worked as a service technician for Centerpoint Energy. These assignments required crawling, bending, and twisting to access confined spaces to reach pipes and appliances, as well as lifting and moving of appliances. According to the job description from the employer, lifting 75 pounds on a regular basis was required. The employee was also mandated to work over 500 hours of overtime. 45% of his wages were overtime pay.
He started having low back pain in 2015 and treated at the chiropractor. The chiropractor fax restrictions to Centerpoint of 50 lbs. The employee was told if he couldn’t lift 75 lbs he couldn’t continue working for Centerpoint. A subsequent restriction form was faxed to Centerpoint allowing him to lift 75 lbs. The employee went to a new physician after recommendation in 2018 who opined the employee’s work had aggravated his underlying preexisting degenerative condition. The employee filed a claim petition in February of 2019.
At the hearing the judge found the employee sustained work related aggravation of his underlying lumbar spine degenerative disc disease which culminated on March 23, 2015. The judge found notice was timely, and that his average weekly wage was $2,264.89. The employer and insurer appeal the issues of wage and notice.
The parties agreed that the employee’s claimed Gillette culmination date was March 23, 2015. The issue was whether the employee provided notice within 180 days. The employee testified he told his supervisor on March 23, 2015 his job duties were not good for his back and to stop working overtime. He also provided a physician statement affirming the back issues were due to his work. The employer and insurer argued the employee should have known he had a reportable work injury. The court held that the employee reporting to the employer exactly what the chiropractor said was sufficient notice.
With respect to average weekly wage, both parties introduced exhibits regarding their calculation, neither party offered any testimony or other evidence to explain these calculations. The employer and insurer objected to the judge’s inclusion of sick pay however even if you exclude sick pay their wage calculation did not result in the wage alleged by the employer and insurer. The court further rejected their contention sick pay not be included, as payment for sick leave is compensation an employee has earned and receives when they’re unable to work for non-work related conditions.
Takeaway: It may be sufficient notice, especially for a Gillette injury, that the employee report what their physician told them. Second, if you’re going to dispute the wage, you likely need more than a demonstrative exhibit and should elicit testimony from existing witnesses or specifically call an employer witness.