| IN RE: JENNIFER K. SOESBE | ) | DOCKET NO. 02 19030 |
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| CLAIM NO. Y-571961 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Jennifer K. Soesbe, by
- Rolland, O'Malley, Williams & Wyckoff, P.S., per
- Wayne L. Williams
- Employer, Northwest Country Place, Inc., by
- The Law Office of Erin J. Dickinson, per
- Erin J. Dickinson
The employer, Northwest Country Place, Inc., filed an appeal with the Board of Industrial Insurance Appeals on August 28, 2002, from an order of the Department of Labor and Industries dated August 8, 2002. In this order, the Department reconsidered and affirmed orders dated August 13, 2002, [sic] July 30, 2002, July 16, 2002, July 2, 2002, June 20, 2002, June 19, 2002, April 29, 2002, April 15, 2002, April 1, 2002, and March 14, 2002. The Department order is REVERSED AND REMANDED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the claimant to a Proposed Decision and Order issued on August 1, 2003, in which the industrial appeals judge reversed and remanded the order of the Department dated August 8, 2002.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed. The rulings are affirmed.
The issue in this appeal is whether Ms. Soesbe is entitled to time loss compensation. Ms. Soesbe sustained an industrial injury on her shift that began late in the evening on February 27, 2002, and ended early in the morning of February 28, 2002. She remained physically able to work from March 1, 2002 through June 2, 2002, albeit in a job less demanding than the job of injury. For the period of June 3, 2002 through July 26, 2002, her attending physician's uncontroverted declaration establishes that Ms. Soesbe was unable to perform any gainful employment with her employer of injury. [2]
On March 1, 2002, Ms. Soesbe reported to work for a modified job with her employer of injury, which had been approved by her physician. Before her shift ended, her employment had been terminated for disciplinary reasons wholly unrelated to the industrial injury.
A worker who cannot return to the job of injury is not entitled to temporary total disability when a physician certifies that an alternate job with the employer of injury is within the worker's capacity to perform and the employer has made the job available to the worker. If the alternate job becomes unavailable before the worker has recovered sufficiently to return to regular employment, or if in the physician's judgment, the worker should not continue in the job, entitlement to wage replacement resumes. RCW 51.32.090(4)(a).
In this claim, the Department paid time loss benefits from March 1, 2002 through July 26, 2002. The industrial appeals judge reversed the Department order and denied benefits for that period.
We grant review because we find the claimant was not entitled to time loss benefits so long as she was capable of performing the modified job with the employer of injury, but her entitlement to time loss resumed on the day her physician found her unable to work.
We have previously determined that when a job an injured worker has been certified to do ends for disciplinary reasons unrelated to the industrial injury and in accord with action that would be taken against other workers similarly situated, that job is "available" within the meaning of the statute. "In such circumstances, we will find that the employer has continued to make the work for which he or she has been shown qualified under RCW 51.32.090(4) available, but for the actions of the worker." In re Sean Murphy, Dckt. No. 95 5987 (February 14, 1997). See also In re Chad Thomas, BIIA Dec., 00 10091 (2001). An employer is not required to tolerate behavior from an injured worker that it would not tolerate from an employee who was not injured, nor does an employer exercise its right to have a satisfactory work force at the cost of replacing wages for an employee who would be earning the wage, but for his or her own behavior.
For the period of March 1, 2002 through June 2, 2002, Ms. Soesbe was not a totally temporarily disabled worker. She was not precluded from gainful employment and was not entitled to time loss compensation.
Ms. Soesbe's circumstances changed on June 3, 2002, when her physician determined that she could no longer perform gainful employment. This Board has never held that an injured worker who was terminated for cause is barred from receiving time loss compensation that they would otherwise be entitled to. We have merely held that a modified job does not come to an end within [3] the meaning of RCW 51.32.090(4) when an injured worker is terminated for cause. If a terminated worker becomes unable to perform any gainful employment or if she can work but has decreased earning power, she is entitled to receive the benefits indicated by the law. Ms. Soesbe was unable to work from June 3, 2002 through July 26, 2002, and she is entitled to time loss compensation benefits for that period.
The Department order dated August 8, 2002, is reversed. The claim is remanded to the Department with directions to deny the claimant time loss compensation for the period of March 1, 2002 through June 2, 2002, and pay time loss compensation for the period of June 3, 2002 through July 26, 2002.
FINDINGS OF FACT
1. On March 5, 2002, the claimant, Jennifer K. Soesbe, filed an application for benefits, alleging an injury to her mid and low back on February 28, 2002, during the course of her employment with Liberty Country Place, Inc. (Northwest Country Place, Inc). On March 15, 2002, the Department issued an order allowing the claim.
Between March 14, 2002 and July 30, 2002, the Department issued orders that paid the claimant time loss compensation for the period of March 1, 2002 through July 26, 2002.
On August 8, 2002, in response to the employer's timely protests of the time loss orders, the Department issued an order that affirmed orders dated August 13, 2002 [sic], July 30, 2002, July 2, 2002, June 20, 2002, June 19, 2002, April 29, 2002, April 15, 2002, April 1, 2002, and March 14, 2002, that paid the claimant time loss compensation from March 1, 2002 through July 26, 2002.
On August 28, 2002, the employer filed an appeal from the order dated August 8, 2002, with the Board of Industrial Insurance Appeals and on October 17, 2002, following timely Orders Extending Time to Act on Appeals, the Board issued an Order Granting Appeal and assigned Docket No. 02 19030.
2. On February 28, 2002, the claimant, Jennifer K. Soesbe, sustained an injury during the course of her employment with Northwest Country Place, Inc., a nursing home.
3. The claimant's ability to perform certain tasks necessary to accomplish her job of injury was impaired as a result of the industrial injury. The employer provided the claimant with a modified job that had been approved by her physician. [4]
4. On March 1, 2002, the claimant's employment was terminated by the employer for disciplinary reasons wholly unrelated to the industrial injury or the receipt of workers' compensation benefits. The employer would have taken the same action against any employee whose actions were similar to the claimant's actions.
5. From March 1, 2002 through June 2, 2002, the claimant was capable of performing the modified job that would have been available to her except for the disciplinary termination.
6. For the period of June 3, 2002 through July 26, 2002, the claimant was unable to perform any gainful employment.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- For the period of March 1, 2002 through June 2, 2002, the claimant was released by her physician to perform work other than her usual work that was available with her employer of injury, and she was, therefore, not entitled to receive total temporary disability benefits pursuant to RCW 51.32.090(4).
- For the period of June 3, 2002 through July 26, 2002, the claimant was precluded by the residuals of the industrial injury from performing reasonably continuous gainful employment, and she was a temporarily totally disabled worker, entitled to benefits, pursuant to RCW 51.32.090.
- The Department order dated August 8, 2002, is incorrect and is reversed. The claim is remanded to the Department with instructions to deny time loss compensation for the period of March 1, 2002 through June 2, 2002, and to pay time loss compensation for the period of June 3, 2002 through July 26, 2002.
It is so ORDERED.
Dated this 25th day of September, 2003.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
CALHOUN DICKINSON Member