Jodrey v. Hibbard Skilled Nursing Center
Maine Healthcare Association Workers' Compensentation Trust
April 11, 2018
CNA Modified Duty Earning Capacity
Summary from the Troubh Heisler Attorneys
Ms. Jodrey was a CNA who injured her back transferring a patient. She return to work light-duty with ongoing symptoms, but she then went out of work when her doctor suggested she find less strenuous work. Hibbard sent her “a letter inviting her return to work,” but Ms. Jodrey failed to respond, so Hibbard refused to pay incapacity benefits. Ms. Jodrey filed a petition which Judge Hirtle granted in part, awarding her 50% partial incapacity benefits based on a §312 IME finding that she had a full-time work capacity with restrictions.
Hibbard argued that the ALJ should have imputed a full-time minimum wage earning capacity, which would have nearly equaled Ms. Jodrey's pre-injury wage. Ms. Jodrey presented work search evidence and argued she was entitled to 100% partial incapacity. Judge Hirtle found that the work search was insufficient to prove the unavailability of work in local labor market, but he also refused to impute a full-time minimum wage earning capacity. Instead, Judge Hirtle applied a number of factors to find that Ms. Jodrey was able to earn 50% of her pre-injury wage.
In affirming Judge Hirtle's decision, the appellate panel held that ALJs are not required to follow a mathematical formula to determine earning capacity. It was not error for the ALJ to consider Ms. Jodrey's significant physical restrictions, education level, vocational history, and the fact that she could no longer work as a CNA in concluding that imputing a full-time wage would not reflect her ability to earn. The panel found competent evidence in the record to support those findings.