Katz v. Telcom Constr., et. al

Katz v. Telcom Constr., et. al, No. WC17-6059 (W.C.C.A. October 2, 2017).

Douglas Katz (“employee”) started work with Telcom Construction (“employer”) in November 2015, as a driver and machine operator.  His job duties included running machinery, digging trenches, and pulling cable on job sites.

During the first few days of May 2016, the employee helped a friend open a resort, which involved light cleaning and housekeeping.  On May 5, 2016, the employee was pulling cable over his right shoulder while at work when he felt a burning, tearing sensation in his neck and right shoulder.  The employee did not immediately report the injury as a work injury, but he did complain of pain in that area to a co-worker that day.  The employee worked until May 9, 2016 when he was examined at Summit Orthopedics and taken off of work.

When he was examined at Summit Orthopedics, the employee described his symptoms as beginning at work, but also as a non-workers’ compensation injury.  The employee called the employer to tell the employer he would be off of work.  He spoke with the administrative assistant and told her that he would not be at work due to an injury.  The administrative assistant described him as identifying the injury as occurring at home and that it was not a work injury.

On Monday, May 16, 2016, the employer completed an absence report for the employee; this report indicated that the employee was excused from work from May 9 through May 12.  The employee had restrictions arising from the May 5, 2016 work injury that the employer could not accommodate.  The employee inquired about light duty work in late May.  The employer did not tell the employee that he was terminated from employment or could not return to his job eventually.  The employee did not believe that he was capable of even light duty work through July 2016.  He began looking for work in July 2016, as he did not hear from the employer.  He did not keep job logs to document his job search.  In October 2016, he found employment part-time installing furnaces.  At that time, he was restricted to working no more than five hours per day and no lifting over 10 pounds, and later, 40 pounds.

On October 27, 2016, Dr. Randall Norgard performed an independent medical examination of the employee.  He diagnosed the employee with a cervical sprain/strain and a right upper trapezius strain arising out of the May 5, 2016 work incident.  According to Dr. Norgard, these both resolved.  He attributed any continuing restrictions to the employee’s preexisting cervical degenerative disease and degenerative joint disease.  He opined that the Employee was at MMI with no PPD and that the only reasonable continued care would be home stretching combined with anti-inflammatory medication.

The employee filed a claim petition seeking temporary total disability benefits from May 9, 2016 onward, payment of out-of-pocket medical expenses and a consultation for rehabilitation services.  Compensation Judge William Marshall heard this matter.

Among other things, the compensation judge found that the employee believed he was still employed until mid-July 2016, and conducted a reasonable job search from mid-July through October 2016.  Judge Marshall also found that his part time job was consistent with the employee’s medical limitations and no further job search was required.  The employer and insurer appealed.

On appeal, the employer and insurer argued that an adequate job search is a condition for receiving TTD benefits.  They argued that the employee did not sustain his burden to show an adequate job search was made.  The Workers’ Compensation Court of Appeals (“WCCA”) found that the record supported the employee’s belief that he remained employed with the date-of-injury employer until mid-July 2016 and that from mid-July 2016, onward, the employee was required to make a diligent job search.  The WCCA also found that the employee did make a reasonably diligent job search based on the testimony from the employee and his spouse concerning the specifics of his job search and the fact that he found employment within his restrictions.  This was consistent with the compensation judge’s opinion.  Further, the WCCA held that “the absence of job logs can support a conclusion that a job search was inadequate, but does not require that conclusion.”  Therefore, substantial evidence supported the compensation judge’s determination regarding the award of TTD benefits.  The WCCA affirmed the compensation judge’s determination.