I decided to look for a Christmas related topic for this work comp blog entry.  The 2002 workers’ compensation case of Smith v. Carl A. Nelson & Company and Wausau Insurance Companies had a Christmas tie-in.  The Claimant was a construction worker with Carl A. Nelson & Company and generally performed concrete work.  The Claimant was laid off during the winters.  The Claimant underwent regular performance reviews and his productivity before his work injury had always been rated as “exceptional.”

In May of 1999 the Claimant suffered a low-back injury.  The Claimant received conservative treatment and did not undergo surgery.  However, he was off work for the remainder of the 1999 construction.  The Claimant was not able to return to work until May of 2000.  The Claimant testified that he had a difficult time performing his usual duties during the 2000 construction season and co-workers had to help him.

In late fall of 2000 the Claimant was placed on his usual winter lay off.  At the start of the lay off the Claimant was not worried about his job, but he testified he figured he was in trouble when he was not invited to the annual Christmas party.  The Claimant was not called back to work in the spring of 2001.

At the workers’ compensation trial the employer and insurance company argued that the Claimant’s injury was not serious, and he was not called back to work because he was a slow worker.

The Defendants also argued that the Claimant’s earlier positive work reviews had been a mistake, and the Claimant had always been a slow worker, and the employer finally decided to let him go.

The Work Comp Judge rejected the Defendants’ argument.  The Work Comp Judge found that the Claimant had always been a good worker before his injury, and that it was the Claimant’s injury that had reduced his performance.

The Work Comp Judge ruled that the Claimant had suffered a 50% loss of his earning capacity and was therefore entitled to 250 weeks of permanent partial disability benefits.