dissenting.
[¶ 17] I do not agree with the majority opinion, which concludes that in order to successfully reapply for disability benefits an employee must first prove “he was earning wages from employment when the change in his medical condition occurred. ...” Not even the Workers Compensation Bureau has taken this position. In this case, the Hearing Officer concluded not only that Gronfur had not been working, but that he did not “actively seek employment within the determined activity and work restrictions ... contrary to [N.D.C.C.] § 65-05.1-04 and § 65-05-08(7).” The Bureau adopted the Hearing Officer’s findings of fact and conclusions of law. The Bureau specifically argues on appeal that their interpretation of “actual wage loss” is consistent with chapter 65-05.1 on rehabilitative services, which requires the employee to make a good faith work trial or work search. N.D.C.C. § 65-05.1-04(1) and (4). The Bureau also points to N.D.C.C. § 65-05-08(6):
It is the burden of the employee to show that the inability to obtain employ*344ment or to earn as much as the employee earned at the time of injury is due to physical limitation related to the injury, and that any wage loss claimed is the result of the compensable injury.
Therefore, “actual wage loss” can be established by showing an inability to obtain employment. The Bureau takes the position that this inability to obtain employment is proven by a job search and evidence of rejection for jobs based on the physical impairment caused by the work injury. I am at a loss as to why “an inability to obtain employment” cannot be proven by medical evidence that the employee is totally disabled from any work as a result of the work injury. Such is the case here from April 14, 2000, through October 5, 2000.
[¶ 18] Finally, there is nothing in the legislative history of Senate Bill 2206 (1991) that I can find to explain why the legislature amended N.D.C.C. § 65-05-08, adding the requirement of a finding of “actual wage loss” or what it means. Section 65-01-02(15), N.D.C.C., defines “disability” as “loss of earnings capacity and may be permanent total, temporary total, or partial.” As previously noted, to receive disability benefits, the employee must show a physical limitation related to the work injury that caused the employee to be unable to obtain employment or “to earn as much as the employee earned at the time of injury” and that the wage loss is the result of the injury. N.D.C.C. § 65-05-08(6). Under N.D.C.C. § 65-05-09(1), where the employee suffers disability but is able to return to employment for twelve consecutive months, temporary total or permanent total disability benefits are based on the wage in effect at the time the disability recurs or on the wage the employee received prior to the injury, whichever is highest. Partial disability benefits are based on the “difference between the injured employee’s average weekly wages before the injury and the employee’s wage earning capacity after the injury in the same or another employment.” N.D.C.C. § 65-05-10. The employee’s earning capacity for the purpose of calculating partial disability benefits “may be established by expert vocational evidence of a capacity to earn.” N.D.C.C. § 65-05-10(3). Whether claiming temporary total, permanent total, or partial disability benefits, the employee’s pre-injury wage is utilized. Gronfur proved his pre-injury wage. In its Order of October 8, 1997, the Bureau concluded Gronfur’s average weekly wage was $614.00 at the time of his injury. The Bureau concluded he was entitled to partial benefits due to his injury and that he had a retained earnings capacity of $340.70 per week.
[¶ 19] It does not seem logical to me that an employee who is medically incapable of working at all for a period of time due to a worsening of his work injury is not entitled to temporary total disability benefits. Although I cannot equate “loss of retained earnings capacity” with “actual wage loss,” I am of the opinion that “actual wage loss” can be proven by showing “an inability to obtain employment,” which in turn can be proven by medical evidence that the employee is totally disabled from performing any work.
[¶ 20] I, therefore, dissent and would reverse the denial of temporary total disability benefits from April 14, 2000, through October 5, 2000.
[¶ 21] WILLIAM A. NEUMANN, J„ concurs.