Unsuccessful job search doesn't prevent supplemental earnings

In Louisiana, a worker's earning capacity can include the earnings she would have received from an available position for which she applied but was not selected.

Case name: Leonards v. Summit Claims, et al., No. 12-255 (La. Ct. App. 10/03/12).

Ruling: The Louisiana Court of Appeal held that a worker was entitled to supplemental earnings benefits subject to a credit for the amount she would have earned at a job she was capable of doing, but was not hired for.

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What it means: In Louisiana, a worker's earning capacity can include the earnings she would have received from an available position for which she applied but was not selected.

Summary: A worker for a pharmacy was injured in the course and scope of her employment. She received temporary total disability benefits. Later, a vocational rehabilitation counselor asked her treating physician to review descriptions of three jobs to determine whether they met the worker's capabilities. The physician approved two jobs with ergonomic modifications. The third job was approved by the physician without modification. The worker applied for the three jobs but was hired by none. The pharmacy sought to modify the worker's benefits and receive a credit for the amount she would have earned at the third job. The worker's TTD benefits were converted into supplemental earnings benefits. The Louisiana Court of Appeal held that the pharmacy was entitled to a credit for the amount she could have earned at the third job.

The court explained that actual job placement is not an impediment to proving a worker's earning capacity. The worker argued that the third job was not actually available because she applied for the position but was not hired. The court rejected the assertion, stating that the non-selection of an employee for an available job does not present an impediment to proving her earning capacity.

A concurring judge agreed with the outcome of the case but was "bothered by the harsh result." The judge said that if a job is never offered to a worker after she made a diligent effort, the job should not be considered available to the worker. The judge explained that this "interpretation comports with common sense and the practical realities of today's job market."

Read more at the WorkersComp Forum homepage.

January 14, 2013

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