Workers’ Compensation – Average Weekly Wage – Temporary Total Disability – Disability – Insufficient Proof

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Carroll v. Triangle Grading. (Lawyers Weekly No. 10-08-0998, 7 pp.) (Staci T. Meyer, Commissioner) On remand from the Court of Appeals. I.C. No. 501837.

Holding:  Because the plaintiff was employed with defendant-employer for a period of less than 52 weeks, the most fair and just method to determine the plaintiff’s average weekly wage is to divide the total earnings during the period of employment by the weeks and parts thereof.

Since the plaintiff did not make any effort to find suitable employment after he was released to return to work in sedentary or light-duty work, he failed to prove actual wage-earning disability during the periods of time that he was capable of light-duty employment. Therefore he was not entitled to temporary total disability benefits during those time periods.

The plaintiff also presented insufficient evidence that his need for Coumadin was related to his compensable work injury.

Facts

At the time of hearing the plaintiff was 38 years old and had a high school education. He began working for the defendant-employer in 2002. In 2004 he became a foreman. He supervised workers at job sites to make sure jobs were completed. Prior to working for defendant, the plaintiff worked as a boom truck driver and helped his wife manage a nightclub.

The plaintiff injured his back while working. Eventually he sought treatment at an emergency room and was taken out of work pending a doctor’s appointment.

The doctor who treated the plaintiff noted that he injured his back at work and diagnosed him as suffering from persistent back pain and possible radiculopathy. He recommended an MRI of the lumbar spine and conservative treatment measures. The plaintiff was assigned to light-duty work under restrictions that limited him to deskwork. Defendant did not have deskwork available.

Defendant began payment of compensation without prejudice, indicating an average weekly wage of $800. The MRI revealed mild stenosis from L3-S1. The doctor continued the plaintiff on light-duty restrictions.

Subsequently the doctor recommended that the plaintiff participate in a vocational-rehabilitation evaluation to assist with job placement, since defendant apparently had no light-duty work available.

Following continuing complaints of pain, the doctor performed a decompression at L4-5 with stabilization of the plaintiff’s spine and a soft fusion. The plaintiff was taken out of work for a period of time.

Prior to the decompression, the plaintiff suffered from blood clots for which he was prescribed Coumadin.

A few months after the decompression, the doctor urged the plaintiff to continue physical therapy and released him to return to work doing sedentary or light-duty work. The doctor also made note of a component of depression and anxiety secondary to the plaintiff’s workers’ compensation issue.

According to the doctor, the plaintiff was capable of sedentary or light-duty work during the periods of time from Jan. 11, 2005, through Feb. 6, 2006; June 29, 2006, through Sept. 19, 2006; and Oct. 31, 2006, through the present.

The plaintiff testified that the defendant did not have employment available for him within his restrictions. He did not perform any job search seeking employment on his own within his restrictions.

The only disputed medical issue before the commission was whether the plaintiff’s prescriptions for nicotine and Coumadin patches were related to the plaintiff’s work injury.

The doctor testified that stopping smoking would assist the healing process of the plaintiff’s spine through the exchange of blood and oxygen to the spine.

Analysis

Because the plaintiff was employed with the defendant-employer for a period of less than 52 weeks, the most fair and just method to determine his average weekly wage is to divide the total earnings during the period of employment by the weeks and parts thereof. Based upon the Form 22 filed by the employer, the plaintiff’s correct average weekly wage was $845 yielding a compensation rate of $563.

Disability is incapacity to earn the wages which the employee was receiving at the time of injury in the same or any other employment because of injury. To establish disability, the plaintiff must establish facts indicating that he “(1) was incapable of earning pre-injury wages in the same employment, (2) was incapable of earning pre-injury wages in any other employment, and (3) the incapacity to earn pre-injury wages in either the same or other employment was caused by [the] plaintiff’s injury.” Parker v. Wal-Mart Stores, Inc., 156 N.C. App. 209 (2003).

The plaintiff did not make any effort to find suitable employment after he was released to return to sedentary or light-duty work. He did not prove that he was incapable of working in any employment or that it would be futile to him to look for any employment.

The plaintiff failed to prove actual wage earning disability during the periods of time that he was capable of light-duty employment from Jan. 11, 2005, through Feb. 6, 2006; June 29, 2006,through Sept. 19, 2006; and Oct. 31, 2006, through the present. 

The plaintiff failed to prove that he was entitled to ongoing temporary total disability benefits as a result of his compensable injury.

The plaintiff is entitled to have defendant pay for the myelogram, CT scan, discogram, physical therapy, nicotine patches and treatment for depression as recommended by his doctor, which are reasonably necessary to effect a cure or provide relief for the plaintiff’s compensable injury.

The plaintiff has presented insufficient evidence that his need for Coumadin is related to his compensable work injury.