Noble v. St. Paul Arena Co., LLC and SFM, No. WC13-5656 (April 29, 2014)
The employer and insurer appealed from the compensation judge’s decision that the employee was entitled to temporary partial disability benefits and that the proposed surgery was reasonable and necessary.
The employee was a part-time worker for the St. Paul Arena Company earning $23 an hour. He also worked part-time at Macaroni Grill earning $10 an hour. His combined weekly wage from these jobs was $511.44.
While working at St. Paul Arena Company, he sustained a work-related low back injury and was taken off work. He had a right L4-5 epidural steroid injection and was released to return to work with restrictions. A few weeks later, the employer offered him a temporary part-time position as “gate security” for $10 an hour. The job description attached to the written offer indicated that the average length of each shift would be four hours but shorter shifts were available. The employee ultimately rejected the job offer because of the hours and lower pay.
The employee began seeing a specialist, who diagnosed bilateral nerve root impingement, recommended a lumbar decompression, and imposed additional work restrictions. Under the restrictions, the employee could work four hours a day for five days a week. The specialist also opined the work injury significantly contributed to the low back condition and the employee’s need for treatment.
Dr. David Carlson performed an IME and opined: (1) the employee had sustained a lumbar strain that had resolved, (2) the proposed surgery was not reasonable, necessary, or related to the work injury, and (3) imposed no work restrictions.
The compensation judge found the employee had been temporarily partially disabled and that the proposed decompression surgery was reasonable, necessary, and causally related to the work injury, and that the employee was entitled to ongoing rehabilitation benefits. The employer and insurer appealed.
The WCCA affirmed, holding that the rejection of the job offer did not bar the employee from receiving temporary partial disability benefits. Additionally, there was significant wage loss. At the time of the work injury, the employee was earning $23 an hour and the new job offer was for only $10 an hour. With his restrictions, the employee was only allowed to work 20 hours a week. Even if the employee accepted the temporary job offer with his restrictions there still would have been significant loss of earning capacity.
The employer and insurer did not argue on appeal the current restrictions were not causally related to the work injury. Instead they argued the current loss of earnings was not an accurate reflection of the employee’s earning capacity. Although, the offer may have been physically appropriate based on his restrictions, it was for temporary employment and the employer and insurer did not submit evidence the job was still available. There was no evidence of actual earnings showing actual earning capacity.
The judge also determined the proposed surgery was reasonable and necessary. The judge adopted the specialist’s medical opinion and denied the request for a neutral physician.