Willard v. USX-Minntac, 040999 MNWC,

Case DateApril 09, 1999
CourtMinnesota
JAMES J. WILLARD, JR., Employee,
v.
USX-MINNTAC, SELF-INSURED, Employer/Appellant.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 9, 1999
         HEADNOTES          WAGES - CALCULATION. Where the self-insured employer failed to provide the number of days the employee worked during the 24 weeks prior to his work injury, the compensation judge was reasonable in simply calculating his weekly wage by dividing his total wages by 24.          JOB OFFER - REFUSAL; TEMPORARY TOTAL DISABILITY. Where the employee's physician had continued the employee off work until his next exam, the compensation judge was supported by substantial evidence in concluding that a job offer made prior to that date was not physically suitable such that the employee should be denied temporary total disability benefits through that date.          Affirmed.           Determined by Wilson, J., Pederson, J., and Wheeler, C.J.           Compensation Judge: Karen C. Shimon           OPINION           STEVEN D. WHEELER, Judge          The self-insured employer appeals from the compensation judge's calculation of weekly wage and from an award of temporary total disability compensation, contesting the finding that the employee was medically unable to return to work before April 7, 1998, and thus did not refuse an offer of physically suitable work. We affirm.          BACKGROUND          The employee, James J. Willard, Jr., sustained an admitted work-related injury on October 20, 1996, while employed as a train operator for the self-insured employer, USX-Minntac. At the time the employee was 25 years of age and had worked for the employer since June 1991. His regular shift was 8.3 hours, on a rotating shift, working seven consecutive days followed by several days off. For some time prior to the date of injury, the employee had also been working voluntary overtime when available, usually two or three times per week, up to about 15 hours per week. He was paid time and a half for overtime hours and double time and a half for work on holidays. The employee's straight time rate of pay was apparently $17.29 which equated to a 40 hour weekly wage of $691.60. (Resp. Ex. 7.) (T. 14, 41-42, 51.)          The train operator job required the employee to drive a locomotive into the employer's taconite pit to be loaded and to haul the load of ore out to be dumped into a crusher. In the course of operating the locomotive, the employee was required to frequently climb down from the locomotive in order to throw switches which moved sections of rail to allow the locomotive to proceed along different sections of track. Some of the switches were electric, but many required the employee to manually reposition a three-foot-long steel lever which moved the rails by means of gears. In order to do this, the employee needed to bend at the knees, grab the lever, lift it up and pull it back over and down to the opposite direction. He testified that this action was very strenuous and required using all of the strength in his back, legs, and arms.          On October 20, 1996, after the employee had climbed down from the cab of his locomotive, he slipped on one of the many rocks which lay about in the pit. He fell, and felt a "pop" and pain in his back. (T. 14-25.) The employee was unable to get up. His foreman and some other workers assisted him out of the pit and he was taken by ambulance to the Virginia Medical Center in Virginia, Minnesota. He was diagnosed with possible disc herniations and was taken off work pending follow up with his physician, Dr. Mark D. Wagner. An MRI scan revealed bulging discs at L3-4 and L4-5 with ventral effacement of the dural sac. The employee subsequently treated with Dr. Wagner and with Dr. Jed Downs, a specialist in occupational medicine at the Duluth Clinic. In the fall of 1996 and during 1997, the employee was treated with injections, physical therapy, a brace, pain medications, anti-inflammatories, muscle relaxants, exercise, and chiropractic treatment. (T. 25-27; Exhs. H, I, J, K, 1, 6.)          About five weeks after the injury, the employee was released to return to work under restrictions. The employee was paid temporary total disability benefits from October 24 through November 30, 1996. He went back to the employer but because they had no work within his restrictions he was told to merely sit in the employer's rail annex during his work hours until mid-February 1997. During part of this time, the employee suffered a wage loss and was paid temporary partial disability benefits from December 22, 1996 through February 18, 1997, in the total amount of $2,852.26. He was released to work without restrictions effective February 20, 1997 and returned to operate a train, without wage loss, until mid-July 1997. The employee testified that the train operator work eventually became painful and aggravated his back. On July 18, 1997, the employee relinquished his union contract rights to the train operator position and accepted work for the employer as a maintenance laborer, which job allowed him to be more mobile...

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