DAWNMARIE J ECCLESTON, Applicant
SAVE MORE FOOD MARKET, Employer
SOCIETY INSURANCE A MUTUAL CO, Insurer
An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.
The findings and order of the administrative law judge are affirmed. Jurisdiction is reserved for such further findings and orders as may be warranted.
Dated and mailed May 29, 2008
eccleda . wsd : 185 : 8 ND § 5.20
/s/ James T. Flynn, Chairperson
Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Respondents assert in their petition that Dr. Mullen's physical restrictions are too severe. However, Dr. Friedel offered no opinion regarding restrictions, and therefore the only medical evidence of record regarding restrictions comes from Dr. Mullen's opinion. Accordingly, it must be found that the applicant has a permanent lifting restriction of 15 pounds, with limited overhead reaching or lifting. She is a high school graduate with a work history that includes substantial reliance upon repetitive physical duties that her physical restrictions now severely limit.
From January 1, 2007 to June 26, 2007, the applicant worked full time for Walgreens and earned $9,571.84, or approximately $9.44 per hour based on a 40-hour week. The vocational experts project that she would have been earning between $9.00 per hour and $9.33 per hour during that same time period had she been able to remain employed with Save More Food Market, which means that currently she has found employment commensurate with her job at Save More. Nevertheless, assessment of loss of earning capacity is based upon a prediction of impaired earning capacity for the injured employee's working lifetime.(1) The applicant's job at Walgreens is not guaranteed for that working lifetime, and her physical restrictions preclude her from assuming any working manager's position that would include duties exceeding her physical restrictions. In fact, she relies upon coworkers at Walgreens to carry boxes for her to complete her stocking duties. The applicant's promotional opportunities are thus negatively affected. Additionally, the applicant continues to experience soreness in her low back that requires her to take over-the-counter medication daily. Her work life in all probability will be shortened due to this chronic pain.
Respondents appear to argue that the administrative law judge effectively dismissed consideration of the applicant's incentive pay at Walgreens when assessing loss of earning capacity. However, the administrative law judge merely noted that the incentive pay was seasonal, and not guaranteed to continue at the level the applicant received it in the first half of calendar year 2007. It is probable that the applicant will continue to receive some level of incentive pay as long as long as she is able to remain in her employment with Walgreens, and it is this pay that has kept her wage commensurate with her wage at Save More. However, given the uncertainties inherent in the continuance of any particular employment position and wage/incentive package, as well as the limiting effect the applicant's physical restrictions and residual pain are likely to have on her promotional opportunities and overall work life, the commission concurs with the administrative law judge and the applicant's vocational expert that 20 percent is an accurate assessment of loss of earning capacity.
cc:
Attorney John Jokela
Attorney David Piehler
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