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...