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Nanovich v. Department of Labor and Industries3/15/2002
Jack Nanovich was injured on the job on February 6, 1987. He applied for Department of Labor and Industries (L&I; benefits about a week later. Seven years later, L&I;closed the claim and requested reimbursement for an overpayment of time loss compensation .
Nanovich appealed.
An industrial appeals judge heard the case and ruled for L&I; The Board of Industrial Insurance Appeals (Board) affirmed the administrative law judge's decision. He next appealed to Pierce County Superior Court where a jury found Nanovich's permanent dorso-lumbar impairment should have been classified as a Category 2 (mild low back impairment) rather than a Category 1 (no objective findings). But the jury affirmed the Board's decision that Nanovich owed $1,723.61 in time loss compensation overpayment, that Nanovich's injury was not sufficiently debilitating to cause his loss of earning power and that Nanovich's injury did not make him unemployable at any kind of work.
Nanovich now appeals only the jury's employability and earning power verdicts claiming they are not supported by substantial evidence. We hold that Nanovich, not L&I; had the burden to produce evidence of loss of earning power and unemployabilty as a result of his injury and that he failed to meet this burden. We affirm.
FACTS
Jack Nanovich (Nanovich) was injured while working on a construction job site on February 6, 1987, when a beam or log he was carrying came down on his head and neck.
Nanovich went to Dr. Daniel Shelton the next day complaining of bruising on his right shoulder, swelling and tenderness on the right side of his head, and pain and soreness in his lower back. The doctor sent him to physical therapy and to Dr. Gary Hunter for an additional examination. Dr. Shelton testified that there was nothing in the medical reports from these providers that was 'inconsistent with the injury or symptoms he described.' Report of Proceedings (5/3/95) at 37. Nanovich filed a claim on February 12, 1987, with L&I;
He received time loss compensation and retraining in the field of real estate sales. Prior to the injury, he had obtained real estate sales licenses in both Hawaii and Washington, but had never practiced. After retraining, Nanovich worked for real estate sales firms in 1989, 1990, 1991, and 1992. He worked 55 hours per week but never earned more than $9,700 a year. He also worked as a property manager for a couple of years and performed odd jobs as a handyman. Nanovich never made nearly the earnings he made while working in construction and he left real estate sales in 1992 because he could not make an adequate living.
L&I;closed Nanovich's claim in 1994, when it issued a Corrects and Supersedes Order and Notice Dated 5/11/89. The order directed Nanovich to reimburse L&I;$1,723.61 for overpayment on his time loss compensation claim from November 9, 1988, to March 5, 1989.
Nanovich appealed. An industrial appeals judge found that Nanovich had a Category 1 lumbosacral permanent partial disability under WAC 296-20- 280 (no objective clinical findings are present; subjective complaints and/or sensory losses may be present or absent), but also found that the injury did not keep him from working on a reasonably continuous basis from March 6, 1989, to May 18, 1994, and that he was not entitled to any additional benefits for temporary total disability. The industrial appeals judge affirmed the order and closed the claim.
Nanovich unsuccessfully appealed the judge's decision to the Board. He then appealed to Pierce County Superior Court.
Nanovich's case was tried to a jury on April 11-13, 2000.
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