State ex rel. Wyoming Workers' Compensation Division v. Ohnstad ( 1990 )

CARDINE, Justice,

concurring.

While the majority opinion satisfactorily resolves this case, it leaves this area of law in a state of uncertainty. I would prefer some guideline for future cases for determining when “earning power” is substantially restored.

Ohnstad never worked full time at his counseling job. He earned substantially less than he would have at his pre-injury job. The majority states that fact is dis-positive. Why is it dispositive? Is it because he worked less than full time; because he worked just a few months; because he earned less than his pay at the time of injury? If so, at what point in his working while drawing temporary total disability can we say his “earning power” has been restored?

I agree with a policy that encouragés injured employees to return to work. Still, a need exists for ground rules to determine when the worker’s entitlement to temporary total disability payments ceases. This issue has been answered for too long on an ad hoc basis. Perhaps the court is reluctant to set guidelines or perhaps it is unable to determine what they ought to be. If that is the problem, then clearly this type of decision more appropriately should be left to the legislature.