 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Grubelnik v. Four-Four6/22/2001
Worker appeals from an adverse summary judgment awarding him reduced temporary total disability benefits pending maximum medical improvement status. The reduction was based on wages Worker received while working for an employer who was not his employer at the time of the injury. We reverse.
BACKGROUND
Employer is Four-Four, Inc. Its insurer is Mountain States Mutual Casualty Company (Insurer). Robert C. Grubelnik (Worker) appeals the Workers' Compensation Judge's (WCJ) summary judgment in favor of Employer. Neither party attacks the facts upon which the WCJ entered summary judgment.
Worker was a welder with Employer. He was injured and paid temporary total disability benefits from the date of the injury until about January 30, 1999.
Worker's health care provider released him to return to work on January 27, 1999. This was before Worker reached maximum medical improvement (MMI). On January 29, 1999, Worker informed Employer's safetyman, apparently during a safety meeting, that he was allowed to return to light duty work. According to Worker's affidavit, at the same time he informed the safetyman that he had a job offer at another employer, Williams Field Services (Williams), as an inspector. Also on January 29, 1999, Worker began work at Williams as an inspector. The safetyman did not offer Worker a job of any kind on or after January 29.
Worker never knew anyone at Employer to work light duty capacity during the nine years he was employed there. Employer concedes that it could not put Worker back to work because the work available at Employer did not fall within Worker's work restrictions:
Obviously, Worker had already accepted the job at Williams before talking to [the safetyman] and had no intention of returning to work at Four-Four because he knew that there was no work available with Four-Four that was within his restrictions. It would be unfair to penalize an employer who could not put a worker back to work because the type of work that the employer performs does not fall within a worker's work restrictions.
Employer never informed Worker about re-employment procedures.
After this pre-MMI release to return to work, Worker neither sought employment with Employer nor asked for his job back. Worker reached MMI on April 13, 2000.
The WCJ found that Worker did not inform Employer that his healthcare provider had released him to return to work. Yet the WCJ believed that Employer "was aware of Worker's return to the work force," and assumed that Insurer was also aware. Employer does not contest this belief and assumption in its brief on appeal and appears to concede Worker's contact with Employer's safetyman.
Worker's computation of full temporary total disability benefits for the period covering Worker's release to work date until MMI was $23,471.89. Worker states the WCJ credited this amount for "wages due from others" and ordered only $6,827.30 to Worker for the period of January 27, 1999 to MMI. Worker seeks reversal on the ground that Employer failed to comply with the requirement in NMSA 1978, ยง 52-1-25.1 (1990) that Employer offer Worker employment before his temporary total disability benefits could be reduced. Worker seeks an order that $16,644.59 be restored to him. The WCJ ordered Worker was entitled to "$8,085.36 for lost wages during the return to work prior to MMI."
DISCUSSION
Standard of Review
The WCJ framed the issue: "Whether an Employer who has not offered re-employment to an injured worker is required to pay TTD benefits at the full compensation rate even though the worker has returned to wo
Page 1 2 3 4 5 New Mexico Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|