Nielsen v. Kelly Services
May 5, 2016
Shoulder Work Search Findings
Summary from the Troubh Heisler Attorneys
Nielsen injured her shoulder while cleaning offices and had surgery 14 months later. She filed a Petition for Award, which Judge Elwin granted ordering payment of total incapacity benefits for 3 months after surgery, but declining to order payment of 100% partial incapacity benefits for the periods before and after the surgery, because Nielsen failed to demonstrate entitlement to those benefits based on the quality of her work search. Judge Elwin also denied any fixed partial incapacity benefits before and after the surgery because she found, based on her restrictions and work history, that Nielsen was capable of earning at least as much as her pre-injury wage. Nielsen failed to request further findings of fact and conclusions of law, so the Appellate Division assumed that Judge Elwin made whatever factual determinations were needed to support her decision.
Nielsen argued that she had looked for work for 2 months and had 2 job interviews but became discouraged and stopped looking for work. The Appellate Division held that the record contained competent evidence supporting Judge Elwin’s decision denying 100% partial incapacity benefits. On the appeal, Nielsen represented herself, but she had an advocate during at least some of the proceedings.