Leal v. Knife River Corp., WC16-5959 (W.C.C.A. March 3, 2017)
The employee began working as a dump truck driver for Knife River Corporation on May 11, 2015. The employee’s work hours varied, but he often worked up to 20 hours of overtime per week. On August 18, 2015, he sustained an admitted work-related low back injury when he slipped while pulling a chain.
On November 14, 2015, the employee was laid off due to a seasonal work stoppage. In December, he was notified that he would receive a raise effective January 3, 2016. On January 6, 2016, the employee’s QRC was informed by the employer that the employee would be called back to work in the spring.
Dr. Mark Engasser performed an independent medical examination on March 17, 2016. Dr. Engasser diagnosed him with myoligamentous strain of the lumbosacral spine and multi-level degenerative disc disease at L3-S1 with disc herniation at L5-S1 and central disc protrusion at L4-5 without focal impingement but with compression of the left S1 nerve root. Dr. Engasser did not place the employee at MMI, indicating that the employee should continue with physical therapy and assigned work restrictions of lifting 50 pounds rarely and 40 pounds frequently.
The employee treated at Big Lake Spine & Sport (BLSS), Workmed Midwest, and Integrated Care Clinics (ICC). Dr. Phillip Bachman at Workmed Midwest, P.A. released him to work with no restrictions on October 16, 2016.
A hearing was held on April 12, 2016. The Minnesota Department of Employment and Economic Development (DEED) appeared by telephone; ICC, BLSS and Workmed Midwest did not appear at the hearing.
The compensation judge granted the employer and insurer’s motions to dismiss the intervention claims of ICC, BLSS, and Workmed Midwest based on their failure to appear; the employee asserted that he was making direct claims for payment for these intervenors which the compensation judge granted. The compensation judge also granted the employee’s claims for TPD and TTD.
Intervention Claims
The W.C.C.A. found that the employee could not make a direct claim for the expenses that are the subject of an intervenor’s claim if the employee has not established unequivocally that the employee’s attorney also represents the intervenors. See Xayamongkhon v. Indep. Sch. Dist. No. 625, No. WC15-5852 (W.C.C.A. April 19, 2016), summarily aff’d (Minn. Jan. 30, 2017). In this case, the employee’s attorney did not also represent the intervenors. The W.C.C.A. reversed the compensation judge’s decision and vacated the award of reimbursement to BLSS and Workmed Midwest.
Indemnity Benefits
The W.C.C.A. affirmed the compensation judge’s award of TTD benefits and corresponding award of unemployment compensation paid by DEED based on the employee’s work restrictions, the pay raise, the employee would be asked to return, and the employee’s rehabilitation goal of return to the date of injury employer. The W.C.C.A. found that termination from employment for reasons not causally related to the work injury does not necessarily preclude an award of TTD. Further, the court stated, “[w]here an employee has a reasonable expectation of returning to work with the employer, however, the employee may not be required to conduct a job search to be eligible for [TTD].”
The W.C.C.A. also affirmed the compensation judge’s award of TPD benefits based on the employee’s reduction in earnings after the work injury. The compensation judge noted that Dr. Bachman had restricted the employee’s hours and that the employee missed work for medical appointments. The employer and insurer offered no evidence of other causes for the employee’s reduced hours after the injury, failing to rebut the presumption that the employee’s actual earnings accurately reflect his reduced earning capacity.