Hotaling v. St. Johnsbury Trucking Co.

572 A.2d 1351, 153 Vt. 581, 1990 Vt. LEXIS 30
CourtSupreme Court of Vermont
DecidedFebruary 2, 1990
DocketNo. 88-511
StatusPublished
Cited by2 cases

This text of 572 A.2d 1351 (Hotaling v. St. Johnsbury Trucking Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hotaling v. St. Johnsbury Trucking Co., 572 A.2d 1351, 153 Vt. 581, 1990 Vt. LEXIS 30 (Vt. 1990).

Opinion

Gibson, J.

Employer appeals a decision of the Commissioner of Labor and Industry granting claimant temporary total disability payments under Vermont’s workers’ compensation program. We affirm.

[582]*582. The undisputed facts indicate that claimant, a dock worker, injured his right knee while employed by St. Johnsbury Trucking Company on April 3, 1987. St. Johnsbury filed an injury report on the day of the accident, and the parties entered into an agreement for temporary total disability compensation, which was approved by the Commissioner. Claimant attempted to return to work on May 5, 1987 wearing a knee brace, but by June 24,1987 was unable to continue. St. Johnsbury paid claimant temporary total disability benefits from April 20, 1987 through May 4, 1987 and from June 24 to September 29, 1987. Claimant underwent arthroscopic surgery in August, and on October 28, 1987 his doctor released him for “limited duty” work.

The Commissioner found that “[o]n more than one occasion claimant asked his employer about the possibility of returning to work in a ‘light duty’ capacity using a tow motor or other machine and avoiding heavy lifting.” St. Johnsbury declined, citing its policy not to accept an injured employee back to work until he has been given a “clean bill of health” and a total release for work from a physician.

In March of 1987, prior to the knee injury, claimant started a part-time trash-hauling business, which he continued after his injury. He had thirty-three customers in April and sixty-two in May. On one occasion, the insurance carrier’s investigator observed claimant working at the trash-hauling business without the use of crutches, a day when his hired helper was unavailable. St. Johnsbury asserts that when it entered into the agreement for temporary total disability compensation, it was not advised that claimant “was gainfully self-employed in a trash hauling business.” When the employer learned of claimant’s involvement in this business, it filed a notice of intention to discontinue compensation, and ended temporary total compensation payments on September 29, 1987.

The Commissioner found that “[tjhere is no evidence that claimant’s trash hauling business was an insured employer, nor is there any evidence that it was a self-insurer under the Workers’ Compensation Act.” She determined that claimant’s benefits should not be reduced to reflect only temporary partial [583]*583disability, that St. Johnsbury should have continued making temporary total disability payments up to November 6, 1987, the day claimant returned to work full-time, and that it should pay all medical bills related to treatment of claimant’s right knee. The present appeal followed, and the Commissioner has certified the following questions for review:

I. Should the income which the claimant received from a trash hauling business started prior to his injury and operated in addition to his work for St. Johnsbury Trucking Company be used to reduce his entitlement for temporary total disability benefits to temporary partial disability benefits because the claimant maintained his trash hauling business during the period he was unable to work for St. Johnsbury Trucking?
II. If the answer to the first question is yes, should all of the profits received from the trash hauling business be considered when reducing the claimant’s entitlement, or should only that portion of the income which can be determined to be wages be considered?
III. Since St. Johnsbury Trucking Company treated the claimant as temporarily totally disabled, refusing his requests for light duty work, is it equitably estopped from asserting that claimant is only temporarily partially disabled?
IV. Was it error for the Commissioner to not revoke and reopen an agreement for temporary total disability benefits, when the Commissioner determined that, even though the agreement did not reflect the claimant’s profits from his trash hauling business because he was not aware that he had to report them, the agreement nonetheless adequately reflected the claimant’s earning capacity?

St. Johnsbury contends that claimant was not totally disabled from work since he derived income from his trash-hauling business during the alleged disability period. In Sivret v. Knight, 118 Vt. 343, 109 A.2d 495 (1954), we set forth the applicable legal standard for determining total incapacity for work:

The term “incapacity for work” means loss of earning power as a workman in consequence of the injury, whether [584]*584the loss manifests itself in inability to perform such work as may be obtainable or inability to secure work.... The test is not whether the injured employee is totally incapacitated from performing the same kind of labor as he was performing at the time of his injury but whether he is capable of performing any kind of available work.

Id. at 346, 109 A.2d at 497-98.

Although the principal measure of a person’s earning capacity is the wages he or she is able to earn, earning capacity does not necessarily mean the actual earnings made by an individual after receiving an injury. Rather, the test is one of capacity to earn: whether the claimant is employable or able to sell his or her services on a regular basis in an open labor market under normal employment conditions. Compensation of Harris v. Saif Corp., 292 Or. 683, 695, 642 P.2d 1147, 1153 (1982) (en banc); 2 A. Larson, The Law of Workmen’s Compensation § 57.21(d) (1989). The fact that a claimant conducts a business subsequent to the onset of his or her disability is not necessarily evidence that he or she is “capable-of performing any kind of available work”; in fact, it is uniformly held that a finding of disability may stand even when there is evidence of post-injury earnings equaling or exceeding those received before the injury. See 2 A. Larson, supra, § 57.21(c); see also Compensation of Harris, 292 Or. at 694, 642 P.2d at 1153 (real estate investment earnings did not bear on employability and could not terminate disability award despite fact that such income might exceed wages earned by claimant at former job prior to his disabling injury); Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 442, 339 S.E.2d 570, 573 (1986) (claimant’s operation of struggling trucking business after injury precluded employment as truck driver and did not negate commission’s determination that benefits should continue).

The Commissioner may scrutinize the conduct of a sole proprietorship to determine if the profits are the functional equivalent of wages, see Lafleur v. Hartford Ins. Co., 449 So. 2d 725, 729 (La. Ct. App. 1984), but, in general, profits from a business are not the equivalent of wages, and are no substitute for wages for purposes of establishing an average wage. 2 A. Lar[585]*585son, supra, § 60.12(e). Evidence of the limits on claimant’s functioning and mobility in the present case supports the Commissioner’s decision to disregard the business in her determination of claimant’s average weekly wage.

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Bluebook (online)
572 A.2d 1351, 153 Vt. 581, 1990 Vt. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hotaling-v-st-johnsbury-trucking-co-vt-1990.