Sheila Hanson v. Kato Cable, et at. No. WC22-6477 (W.C.C.A. January 24, 2023).
The Employee appealed a workers’ compensation decision that the Employee withdrew from the labor market, and is therefore ineligible for temporary partial disability benefits.
Employee sustained an admitted Gillette left shoulder injury with Employer. Employee ultimately returned to work with the date of injury employer with permanent work restrictions.
Employee subsequently began to experience similar symptoms in her neck and right shoulder. By this time, the Employee was now contracted through a different employer, insured by a different insurer. This new insurer also admitted a Gillette injury to the neck and right shoulder, culminating on January 24, 2020.
The Employee continued working for Employer with restrictions, and with worsening symptoms. Due to her symptoms, Employee inquired about whether there were any remote jobs within the company, but no such positions were available. The Employee resigned, sold their home, and bought an RV, with the intention of traveling the county and working remotely, which was a dream the Employee had for years. Employee subsequently looked for work over the internet on a single occasion. The Employee began working for her spouse’s remote web designing company, earning $11 per hour, and working 25-30 hours per week.
Employee then began working with a QRC, who determined the Employee’s current job was suitable, and that no job search was needed. A vocational evaluation was performed on behalf of the second Employer and Insurer, who found the Employee withdrew from the labor market and failed to conduct a reasonable job search.
The matter went to hearing, where the compensation judge denied the claimed temporary partial disability benefits. On appeal, the WCCA discussed that choosing to work remotely is not necessarily a removal from the labor market. However, the requirement that an employee must search for work within her medical restriction and earning capacity in order to receive certain workers’ compensation benefits is applicable. Specifically, it is the Employee’s burden to establish a diminution in earning capacity is causally related to a work injury. Here, the Employee has not sought any additional work or demonstrated any effort to improve her work situation. The compensation judge was within his discretion to adopt the vocational opinion that the Employee has withdrawn from the labor market. The WCCA affirmed.
Takeaway: When an employee limits herself from full-time, to part-time work, and fails to conduct a diligent job search, a compensation judge may find that the employee voluntarily withdrew from the labor market.