Schmidt v. Crow Wing County, WC 18-6145 (WCCA August 15, 2018)
Employee appeals the compensation judge’s denial of temporary total disability post-cervical fusion surgery.
Employee had evidence of non-work related pre-existing cervical spine injury in 1985, and had subsequent cervical spine and neck symptoms and treatment over the subsequent approximate 30 years. In January, 2014 he slipped and fell down stair steps in his home.
In April, 2014, employee experienced a cracking in his neck while using a pry bar at his work on a Crow Wing County road crew. The employer accepted liability and paid initial wage loss and 3% PPD benefits. Employee was found to be at MMI, and released with light duty restrictions in February, 2015. Employer returned the Employee to light duty work for approximately seven months, but in September, 2015 could no longer provide him permanent employment within his restrictions and terminated his employment. – Employee applied for PERA disability benefits which were approved retroactive to September, 2015.
Employee testified that he did not perform any job search after September, 2015. He did not request and was not provided any rehabilitation assistance. Subsequently in 2017 employee, using private insurance, underwent a C4-7 anterior cervical fusion. Employee’s treating surgeon released him to work with 20 pound lifting restriction eight weeks after the surgery. Employee told his treating surgeon that he did not need to have lifting restriction because he was “retired”. Employee then claimed TTD benefits beginning in September, 2015, as well as the medical expense for the surgery and PPD to the extent of 15% of the whole body. — The Employer’s IME opined that the 2014 injury was a temporary aggravation of the pre-existing 1985 injury. Employer also had a vocational expert testify that jobs existed within the relevant labor market within Employee’s physical restrictions imposed by the treating doctor.
The compensation judge found that the April, 2014 injury was a substantial contributing cause of his 2017 cervical fusion surgery, and award the 15% PPD claimed as well as medical expenses. However, the compensation judge denied TTD benefits beginning in 2015 due to the employee’s admitted failure to conduct a reasonable and diligent search for work.
Employee appealed the denial of TTD benefits, claiming that a job search would have been futile, and further that the lack of vocational rehabilitation services limited his ability to conduct a job search if he was so inclined.—Employee alternatively argued that he was medically unable to work, and the TTD should be reinstated based upon Minn. Stat. 176.101, Subd. 1(e) (2).
The WCCA affirmed the denial of TTD benefits, concluding that the employee failed in his burden of showing he made a reasonable and diligent effort to find work within his restrictions. The lack of vocational job search assistance was an element of evaluating the reasonableness and diligence of a job search, but does not relieve the employee from making a job search.
The WCCA also specifically denied TTD based on the “medically unable to work” argument of
Minn. Stat. 176.101, Subd. 1(e) (2). The Court concluded that the medically unable to work grounds for a TTD claim is only applicable when the employee is “actively employed” at the time the employee becomes medically unable to work. Since employee was not actively employed at the time of his 2017 fusion surgery when he became medically unable to work (for at least eight weeks), reinstatement of TTD benefits under Minn. Stat. 176.101, Subd. 1(e) (2) was not applicable.
The denial of TTD benefits was therefore affirmed for the period both before the 2017 fusion for failure to perform a reasonable and diligent job search within physical restrictions, and after the 2017 fusion surgery both for lack of job search and for not fitting the factual requirement of leaving active employment to apply Minn. Stat. 176.101, Subd. 1(e)(2).