Delay v. Burns International Security, 2010 ACO #13
This matter was appealed to the WCAC by the defendants for a determination of the appropriate calculation of medical and wage loss benefits. The primary issue on appeal was whether the defendants were entitled to an offset or reduction in rate based on wages that the claimant could earn (as testified to by a vocational rehabilitation consultant) consistent with the Supreme Court order of Lofton v. AutoZone, Inc. The commissioners were unwilling to overturn the magistrate’s determination that a reduction was not allowed.

Key Point: The Lofton order does not overturn established Supreme Court case law regarding the calculation of wage-loss benefits. Specifically, the WCAC will not allow an offset based on wages a claimant could earn but is not yet earning.