RICHARD A. BAHR, Employee, v. NORTHWOOD PANELBOARD and HOME INS./RISK ENTER. MGMT., Employer-Insurer/Appellants, and ABBOTT NORTHWESTERN HOSP., MN DEP=T OF HUMAN SERVS., and BLUE CROSS/BLUE SHIELD OF MINN., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 8, 2003
TEMPORARY PARTIAL DISABILITY- EARNING CAPACITY. Where during a period of time the employee earned a wage less than his pre-injury wage, but where the record contained insufficient evidence to rebut the presumption of earning capacity created by the employee=s actual earnings, substantial evidence supports the compensation judge=s findings that the employer and insurer failed to rebut the presumption of earning capacity created by the employee=s actual earnings, that the employee=s earnings from May 30 through December 5, 2001, represented his decreased earning capacity, and that the employee was entitled to temporary partial disability benefits for that period of time.
MEDICAL TREATMENT AND EXPENSE - SURGERY. Substantial evidence, including expert opinion, supports the compensation judge=s determination that the fusion surgery performed on December 6, 2001, was reasonable and necessary.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s award of temporary partial benefits from May 30 to December 5, 2001, and from his finding that the fusion surgery on December 6, 2001, was reasonable and necessary to cure and relieve the effects of the employee=s January 31, 1984, low back injury. We affirm.
Richard Bahr, the employee, sustained an admitted injury to his low back on January 31, 1984, while employed by Northwood Panelboard, the employer. On that date, the employee earned a weekly wage of $433.32. He obtained chiropractic and medical treatment for his low back condition, and on November 26, 1985, underwent a partial hemilaminectomy, diskectomy and foraminotomy at the L4-5 vertebral level. That surgery was recommended, in part, to alleviate his left leg symptoms. Following surgery and a work-hardening program, the employee continued to work with the employer on a part-time, light-duty basis, until August 1987, when his work restrictions precluded him from performing his required job duties and his job was terminated by mutual agreement between the employer and the employee. Thereafter, the employee continued to work at short-term employment with various employers. In May 1989, the employee, employer and insurer entered into a settlement agreement; an award on stipulation was served and filed May 30, 1989. Under the terms that agreement, the employee=s claims were closed out entirely for a period of 12 years, until May 30, 2001, with the exception of claims for reasonable and necessary medical treatment that was causally related to the employee=s work injury.
The employee remained off work for a period of time and eventually returned to work for various employers, generally at a wage less than his pre-injury wage. Between 1994 and 2000, the employee worked for Nortech Systems in Bemidji, where he eventually was promoted to a lead person position, which involved both administrative and laborer work. In 2000, due to changes in the management structure at Nortech and contentions by a supervisor that the employee was incapable of performing his administrative position, the employee resigned from his lead position and transferred to a general floor position. As a result of this transfer, the employee=s salary was reduced from $8.25 to $7.00 per hour. He testified that this new position required a great deal of physical work, such as pulling long cables and performing tasks that required bending and twisting. In May 2000, the employee resigned from Nortech Systems for reasons unrelated to his injury.
Between May 30 and December 5, 2001, the period of time during which he claims entitlement to temporary partial disability benefits, the employee worked for both Turtle River Electric and Super 8 Motel-Bemidji. The employee initially earned $8.00 per hour at Turtle River, and, later, $9.00 per hour. Although that job was full-time on a seasonal basis, at certain times the employee was offered less than 40 hours per week. At his part-time position with Super 8, the employee earned $7.00 or $10.00 per hour, depending on which tasks he performed. According to the employee=s testimony and medical records, his ability to work during this time period was limited by his low back and leg pain and by the medical restrictions imposed by his physician.
The employee continued to experience ongoing low back pain and intermittent leg pain from 1989 through 2001. He received periodic chiropractic treatment from Dr. David Nelson. By February 2000, the employee began to experience increasing low back pain, right leg discomfort and right leg numbness. Dr. Nelson referred the employee for an MRI scan, which was taken on May 22, 2001, and which showed a moderate disc herniation at the L4-5 vertebral level, and degenerative disc disease and bulging at the L3-4 and L5-S1 levels. Based on those results, Dr. Nelson referred the employee to an orthopedic surgeon, Dr. Bryan Lynn, Institute for Low Back Care. At Dr. Lynn=s recommendation, the employee underwent a lumbar myelogram and CT scan on August 2, 2001, which showed advanced disc degeneration at the L4-5 and L5-S1 levels, those levels which were affected by the employee=s 1984 work injury.
The employee underwent surgery on December 6, 2001, and was not released to return to work until April 5, 2002, when Dr. Lynn released the employee for work within physical restrictions on his lifting, bending and twisting. Since that date, the employee has sought work, but has not yet obtained re-employment.
By claim petition, the employee alleged entitlement to temporary partial disability benefits between May 30 and December 5, 2001, temporary total disability benefits commencing December 6, 2001, payment for medical expenses related to surgery on December 6, 2001, and provision of rehabilitation assistance. A hearing was held before a compensation judge on April 23, 2002. At hearing, the employer and insurer stipulated that if surgery was found by the compensation judge to be reasonable, necessary and causally related to the employee=s 1984 injuryBa claim the employer and insurer disputed--they would then agree that the employee is entitled to payment of temporary total disability benefits from the date of surgery until April 5, 2002, the date on which his doctor released him to return to work.
In his findings and order served and filed on June 4, 2002, the compensation judge awarded the employee=s claims in their entirety. He found that the employee had demonstrated a loss of earning capacity substantially attributable to his 1984 injury, and therefore awarded temporary partial disability benefits between May 30 - December 5, 2001. The compensation judge also found that the employee=s 1984 low back injury substantially contributed to his symptoms which ultimately necessitated lumbar fusion surgery on December 6, 2001, and that the surgery was reasonable and necessary to cure and relieve the employee=s low back pain and right leg pain. The compensation found that the employee has engaged in a reasonable and diligent job search for appropriate employment from the time he was released to return to work, on April 5, 2002, to the date of hearing, April 23, 2002. Accordingly, the compensation judge awarded temporary total disability benefits during that period of time. The compensation judge also awarded rehabilitation assistance, concluding that the employee is likely to benefit from rehabilitation assistance, as he is precluded from returning to his pre-injury job as a result of his 1984 injury and remains subject to restrictions on his lifting, bending and twisting.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
1. Temporary Partial Disability Claim
The employer and insurer appeal from the compensation judge=s award of temporary partial disability benefits from May 30 through December 5, 2001, while the employee was working for Turtle River Electric and Super 8 Motel-Bemidji. The compensation judge found that the increased symptoms in the employee=s low back and leg, causally related to his 1984 injury, had affected his ability to work and that the presumption of an earning capacity created by his actual earnings was not rebutted. The compensation judge therefore concluded that the employee had established proof that
by 5/30/01 he was increasingly disabled by the effects of his 1/31/84 low back injury and that his actual earnings represented his earning capacity. The employee is entitled to temporary partial disability benefits during the period from 5/30/01 to 12/5/01.
(Memo, p. 8.) This court must evaluate whether these findings are supported by substantial evidence of record and are not clearly erroneous.
An employee is entitled to temporary partial disability benefits Awhile the employee is employed, earning less than the employee=s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee=s partially disabled condition is due to the injury.@ Minn. Stat. ' 176.101, subd. 2(b). In order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). See also Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).
When a disabled employee who is released to return to full-time work finds a full-time job, the earnings from such employment create a presumption of earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). In appropriate circumstances, this presumption can be rebutted with evidence indicating that the employee=s ability to earn is different than the post-injury wage. Patterson v. Denny=s Restaurant, 42 W.C.D. 868, 874 (W.C.C.A. 1989); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). In order to establish an earning capacity different from actual earnings, there must, however, be more presented than evidence of a hypothetical job paying a theoretical wage. Saad v. A.J. Spanjers Co., 42 W.C.D. 1184, 1194 (W.C.C.A. 1990); Patterson, 42 W.C.D. at 875. An employee=s wage in a post-injury job has little evidentiary value for purposes of determining earning capacity if that job is no longer available. See, e.g., Larson v. Gorman Foundry, 60 W.C.D. 257 (W.C.C.A. 2000); Millerbernd v. Spectrol, Inc., 47 W.C.D. 479 (W.C.C.A.).
The employer and insurer argue that any reduction in earnings the employee experienced in 2001 did not result from his 1984 work injury, but instead resulted from the employee=s limitation of his job search based on his misunderstanding of his work restrictions, his failure to request rehabilitation assistance, and his less-than-aggressive job search. Although the stipulation for settlement entered into in 1989 allowed for $3,000.00 to be set aside for rehabilitation services, the employee apparently did not seek release of this money for rehabilitation assistance, and the employer and insurer cite to that failure to request rehabilitation assistance as evidence that the employee did not actively search for employment that accurately reflected his earning capacity. The employer and insurer further argue that the employee=s administrative position that he held for six years with Nortech established an earning capacity very close to his pre-injury wage. Therefore, the employer and insurer argue that any temporary partial disability benefits owed to the employee between May 30, 2001, and December 5, 2001, should be based on a comparison between the employee=s average weekly wage at the time of his injury and the earning capacity he established while he worked in his lead position at Nortech.
The employee argues that the employer and insurer have not rebutted the presumption that his earnings at Turtle River and Super 8, between May 30 and December 5, 2001, represented his post-injury earning capacity. He argues that his position at Nortech did not establish a Anew earning capacity@ as contended by the employer and insurer. He testified that Nortech management questioned his ability to perform his administrative position, which led to his resignation from that position and his transfer to a lower-paying and more physically rigorous position. The employee argues that because it was questionable whether he was capable of performing the higher-paying administrative position, and because it also was questionable whether he could physically perform the last position he held with Nortech, his wages at Nortech cannot be considered in determining his earning capacity.
One factor which may be considered in rebutting a presumption of earning capacity is the availability of other specific job openings which would provide an employee with greater earnings. There was no specific vocational evidence presented here, however, that other higher-paying jobs were available to the employee throughout the time in 2001 when he worked for Turtle River Electric and Super 8. The vocational evidence in the record includes reports generated by Tom Lanes, the employee=s current QRC, and by L. David Russell and Tod Paulson, who both conducted vocational testing and evaluations of the employee. Mr. Russell, who evaluated the employee at the request of the employer and insurer, concluded that the employee did not have an Ainvoluntary reduction in his earning capacity as a result of his work injury of January 31, 1984,@ during the period he claimed temporary partial disability, May 30 through December 5, 2001, and that none of the medical records reviewed by him reported reduced functional abilities during that period of time. However, the hearing record contains no references to alternative jobs available to the employee in 2001. And, since the employee=s previous position as a lead man for Nortech is apparently no longer an actual Apossibility@ for him, it cannot be considered in determining the employee=s earning capacity. See Stute v. Tom Thumb Food Markets, slip op. (W.C.C.A. Sept. 9, 1999), citing Sellner v. Bituminuous Materials, slip op. (W.C.C.A. Nov. 19, 1991). The compensation judge found that the employer and insurer failed to rebut the presumption of earning capacity created by the employee=s actual earnings. We conclude that substantial evidence supports that finding and also the finding that the employee=s earnings from May 30 through December 5, 2001, are a fair representation of his decreased earning capacity, and, therefore, we must affirm.
The employer and insurer also appeal from the compensation judge=s finding that the employee=s January 31, 1984, low back injury substantially contributed to his low back and right leg pain that necessitated his lumbar fusion surgery in December 2001. The judge concluded that the fusion surgery was reasonable and necessary to cure and relieve the employee=s symptoms and therefore awarded payment for expenses related to the surgery.
The record contains conflicting medical opinions regarding the employee=s need for surgery and the causal relationship between that surgery and the employee=s 1984 work injury. The employee contends that the surgery was reasonable, necessary, and causally related to his work injury, based on the opinion of his treating surgeon, Dr. Bryan Lynn. Both Dr. Nelson and Dr. Lynn opined that the employee=s medical treatment since his 1984 work injury was reasonable, necessary and causally related to his work injury. In his report dated June 14, 2001, Dr. Nelson stated that he had provided chiropractic treatment to the employee, on an as-needed basis since 1985, when his symptoms were exacerbated. He concluded that the employee=s 1984 injury represented a substantial contributing factor to the employee=s current symptoms and the findings evidenced on the May 22, 2001, MRI scan. In his report dated April 10, 2002, Dr. Lynn opined that the employee=s degenerative disc disease at L4-5 and L5-S1 resulted from his work injury in 1984, and that his medical treatment to-date had been Anecessary and appropriate.@
The employer and insurer contend that the fusion surgery was not reasonable and necessary, relying on the opinion of Dr. Steven Barron. Following his examination of the employee on November 2, 2001, conducted at the employer and insurer=s request, Dr. Barron concluded that the employee=s need for additional surgery was not related to his 1984 work injury, but that, instead, a new event had occurred that necessitated his additional surgery.
The compensation judge found Dr. Lynn=s causation opinion more persuasive than the opinion of Dr. Barron. It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. "Where more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld." Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). We conclude that the compensation judge=s finding that the employee=s 1984 injury substantially contributed to the employee=s need for fusion surgery is supported by substantial evidence in the record, and must be affirmed.
In reaching his conclusions about the employee=s fusion surgery, the judge also relied on the employee=s testimony, which he expressly found to be credible, that the employee=s symptoms persisted since the 1984 injury and progressively worsened in 2000-2001, that his level of pain had decreased significantly following his that surgery, and that he had been able to increase his level of physical activity post-surgery. The employee=s testimony is consistent with his history as set forth in his medical records. Further, it is the responsibility of the trier of fact to assess the credibility of a witness, and a finding based on the credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. Tolzmann v. McCombs-Knutson Associates, 447 N.W. 2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 200, 225 (Minn. 1989)). In this case, both the medical evidence in the record and the employee=s testimony support the compensation judge=s determination that the fusion surgery in December 2001 was a reasonable and necessary procedure, causally related to the employee=s 1984 work injury. Accordingly, we affirm.
 In their notice of appeal, the employer and insurer also appealed from the compensation judge=s award of temporary total disability benefits, medical expenses and rehabilitation assistance. Those issues were not addressed in the employer and insurer=s brief, and therefore will not be addressed on appeal. AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@ Minn. R. 9800.0900, subp. 1.
 The employee testified that in the late 1980's, he requested the services of a qualified rehabilitation consultant (QRC), but when that request was denied, he did not formally request rehabilitation and did not use the $3,000 set aside for rehabilitation in the 1989 stipulation for settlement. The record contains no other information or records relating to this specific argument.