Trujillo v. Pride Constr., Inc., et. al., No. WC17-6081 (W.C.C.A. December 4, 2017).
On April 16, 2014, Employee slipped and sustained an admitted right shoulder injury. Both the treating physician and shoulder specialist agreed that Employee’s shoulder was “fragile” and that he needed significant work restrictions. Employer was not able to accommodate Employee’s work restrictions.
On the date of injury, the Employee was 53 years old, lived in a town of about 800 people, had only a 10th grade education, and had a rather labor intensive vocational background. Further, Employee did not have a cell phone or access to a computer at his home. The Employee eventually found work as a custodian and maintenance worker within his restrictions, paying $11.00 per hour. However, hours varied, ranging from approximately 14 hours per week during the summer months, to only 4 to 7 hours a week after Labor Day.
As part of the Employee’s rehabilitation plan, Employee was to take classes and obtain his GED. However, Employee testified that he had difficulty getting to classes because of distance and lack of gas money. Employee failed to get his GED.
The Employer and Insurer filed a NOID, seeking to discontinue TPD benefits, alleging Employee’s employment was so sporadic and insubstantial in earnings that it did not rise to the level of gainful employment. The NOID was denied and the Employer and Insurer filed a petition to discontinue benefits on the same basis.
At hearing, the vocational expert testified that she did not believe Employee engaged in a diligent job search and that he was not compliant with the job placement plan. She further testified the Employee should return to GED classes. The QRC, on the other hand, testified the Employee had been compliant with the job placement plan and that he followed through on leads provided to him. She further believed his current job was a fair measure of his earning capacity. Compensation Judge Stacy Bouman heard the case and found for the Employee, taking particular note that the Employee had not refused any hours offered.
The Employer and Insurer appealed the Findings and Order, arguing Employee’s earning were sporadic because the employee failed to search for better employment; and that he failed to cooperate with rehabilitation, citing to the lack of job logs and failure to obtain a GED.
The WCCA noted that the court has held that when an employee works at a job which is sporadic and provides insubstantial income, the employment does not reflect a reduced earning capacity and the employee is not entitled to TPD. Nonetheless, the WCCA affirmed the compensation judge, reasoning there is no criteria or definition of sporadic and insubstantial income. The court further reasoned that this is a question of fact for the compensation judge, who’s opinion here was well supported by substantial evidence. Lastly, the court held that a diligent job search is not a legal prerequisite for an award of TPD, although it is relevant on the issue of whether alternative employment might be available which would lessen the ongoing wage loss of the Employee. No evidence was offered on this last issue.