NEIL ANDERSON, Applicant

GENERAL MOTORS CORPORATION, Employer

Pursuant to the timely petition for review filed by the applicant in the above-captioned matter, the commission has considered the petition and all relief requested. The commission has reviewed the applicable records and evidence and finds that the administrative law judge's findings and order are supported thereby. The commission therefore adopts the findings and order of the administrative law judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

ORDER

That the findings and order of the administrative law judge are hereby affirmed.

Dated and mailed November 29, 1993
ND § 5.20   § 5.21

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The applicant asserts that the administrative law judge erred in determining that the applicant was not entitled to compensation for loss of earning capacity as a result of his work-related back injury in December, 1991. The applicant states that he had no plan to retire until he suffered a back injury and that he was forced to retire due to his painful back condition. However, the issue is not whether the applicant had a reasonable cause to retire. The evidence indicated that the applicant applied for retirement shortly after his back surgery. The applicant subsequently retired prior to the end of his healing period and prior to the time that his treating physician assessed permanent restrictions and released him to return to work.

The employer testified that it had work available for him within his restrictions, but that the applicant never contacted the employer for employment. The employer's personnel administrator testified that if the applicant returned to light duty work in general manufacturing he would have received $ 15.89 per hour. The commission agrees with the administrative law judge that if the applicant had not decided to accept early retirement he could have returned to work for the employer with little or no wage loss. The employer had been able to accommodate the applicant's physical restrictions in the past. Given the fact that the applicant voluntarily removed himself from the labor market when he retired prior to the time that he had been released to return to work or had permanent restrictions assessed, and given the fact that the employer would have had work available for him within his restrictions if he had not retired, the administrative law judge appropriately found that the applicant was not entitled to a loss of earning capacity claim.

cc: 
Attorney Paul R. Riegel
Attorney Charles M. Soule

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