Operator not required to rebut loss of earning capacity presumption
Grace v. Standard Furniture Manufacturing Co., Inc., No. 2090111 (Ala. Civ. App. 07/23/10).
Ruling: The Alabama Court of Civil Appeals affirmed the trial court's judgment that the return-to-work statute prohibited a worker from presenting evidence of vocational disability. It reversed the judgment assigning a physical impairment rating and remanded the case on the issue.
What it means: The return-to-work statute states that when an employee returns to work after reaching maximum medical improvement and earns the same or higher wages, loss of earning capacity is not considered in assessing the compensation due to the employee for any permanent disability.
Summary: A forklift operator for a furniture manufacturer injured his neck and shoulder when he was hit by a forklift. After surgery, the operator's surgeon assigned a 14 percent impairment rating and a 7 percent impairment rating when the operator's preexisting conditions were excluded. The surgeon placed him under permanent lifting restrictions that prevented him from returning to his position.
He was reassigned to an assembly line position, where he earned 15 cents more per hour than he had earned as a forklift operator. The Alabama Court of Civil Appeals affirmed the trial court's decision that the return-to-work statute applied and reversed the assignment of a physical impairment rating.
The manufacturer argued that since the operator returned to work at a higher rate of pay, the return-to-work statute applied, resulting in a presumption that the operator had not suffered a loss of earning capacity. The court stated that the manufacturer's argument was contrary to a change in Alabama law that in such cases, a worker's degree of physical impairment should be the measure for compensation rather than the loss of earning capacity.
The operator argued that the court should have considered the wage he was first paid when he returned to work. The court mentioned that the operator only presented evidence of his wage at the time of trial, so the trial court did not err in determining that he returned to work earning a wage more than the wage he earned before his injury.
The operator also argued that he performed his job duties before his accident despite his preexisting conditions, so the court erred in adopting the surgeon's 7 percent impairment rating. The court agreed and stated that the trial court improperly applied an apportioned disability rating.
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October 14, 2010
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