The employer and insurer appeal a holding that the employee was entitled to temporary total disability benefits dues to the employee’s inability to maintain substantial gainful employment.
The employee worked as a salesperson for a car dealership. In the normal course of business, he would have to meet customers either on the lot or in the showroom. The sales process typically requires walking the customer out to vehicles on the lot and accompanying the customer on test drives. On January 28, 2016, the employee fell on the lot and injured his left ankle. He had ankle surgery and eventually returned to work full-time in July 2016. The employee then had a second fall at work in February 2017, re-injuring his left ankle. On March 9, 2017, he was released to sedentary work and restricted to moving with crutches or a knee scooter.
On March 13, 2017, the employee was asked to return to work by the employer as a salesperson. The employee was concerned about his ability to meet customers prior to entering the building. It was estimated that such encounters constituted between 80% and 90% of his successful sales. The employee was also concerned about being precluded from both accompanying customers onto the lot and from test drives due to his medical restrictions. After both the employee and QRC contacted DOLI regarding the offer, the employee declined the offer as not being viable.
Shortly thereafter, the employee was observed mowing his lawn, without showing obvious signs of discomfort. However, subsequent medical appointments reported no improvement and he ended up undergoing a repeat left ankle surgery. In April 2017, the employer and insurer filed a NOID seeking to discontinue temporary total disability benefits, arguing the employee refused an offer of gainful employment. After approving the discontinuance, the matter went to formal hearing, where the compensation judge found for the employee.
The WCCA first addressed the issue of credibility, where it concluded that the issue of credibility is the responsibility of the compensation judge, so long as the inferences are reasonable. As for the main issue of gainful employment, the WCCA reiterated that the standard for discontinuance is whether “the employee refuses an offer of gainful employment that the employee can do in the employee’s physical condition.” It was further held that this determination is left to the compensation judge. In reviewing the matter, it was found that working within the employee’s medical restrictions precluded the employee from engaging in the traditional activities necessary for selling cars. To support this holding, it was discussed that the employee was only successful at selling cars after his post-surgery medical restrictions allowing him to return to the lot.