April Moon v. Northern Lights EMMC– Where the employer failed to raise a subsequent non-work injury issue at hearing level and employee retained only very limited work capacity, the ALJ did not err in granting the employer’s petitions for review but awarding total incapacity benefits. In Moon (Dec. No. 25-02), the parties entered a Consent Decree finding the employee sustained two injuries resulting in a L4-5 disc injury, requiring surgery. This was based on a 312 IME report from Dr. Bradford. The Consent Decree placed the employee on varying rates. Subsequently, the employee was found to have a L5-S1 disc herniation. The employer filed petitions for review requesting the employee be placed at fixed partial based on an imputed earning capacity.
Dr. Bradford conducted a follow-up 312 IME where he concluded the L5-S1 disc herniation was related to the prior injuries and surgeries, but later changed his opinion at deposition. The employee was provided trial part time work capacity. On the strength of a labor market survey the employer argued for a fixed partial payment scheme. It did not raise the argument that the L5-S1 disc herniation was a subsequent non-work injury and under sec. 201(5) increased the employee’s earning incapacity. The ALJ awarded full incapacity benefits.
The Appellate Division upheld the ALJ’s decision because the sec. 201(5) issue was not raised at hearing level, including closing arguments. It further found that trivial occasional earnings and limited “trial work” capacity is sufficient to sustain an award of total incapacity.
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