PAUL J. LARSON, Employee, v. MARK J. TRAUT WELLS, INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 29, 2004
TEMPORARY TOTAL DISABILITY; JOB SEARCH; WITHDRAWAL FROM THE LABOR MARKET. Where the compensation judge failed to make any findings with respect to the employer and insurer=s claims that the employee had failed to make a diligent job search and had withdrawn from the labor market, the judge=s award of temporary total disability benefits is vacated and the case remanded for further findings.
Vacated and remanded.
Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Ronald E. Erickson
Attorneys: Steven Scharfenberg, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Appellants. Joseph J. Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits from May 31 through December 5, 2003. We vacate and remand for further findings.
Paul J. Larson, the employee, sustained a crush injury to his left foot on November 1, 2002, while working for Mark J. Traut Wells, Inc., the employer, located in Waite Park, Minnesota. The employee=s duties consisted of traveling to different cities and removing and installing pumps for city water wells. The employee then earned a weekly wage of $629.28. The employer and its insurer admitted liability for the employee=s personal injury.
The employee=s injury was treated at Itasca Medical Center in Grand Rapids, Minnesota. Dr. Thomas Lorenz reported the employee sustained a nine-centimeter cut at the dorsum of the foot on the medial side, a twelve-centimeter laceration on the sole of the foot and a 1.5-centimeter laceration at the base of the fourth toe. The cuts did not extend to the bone. An x-ray of the left foot was normal except for a small chip or avulsion fracture of the distal fourth toe. Dr. Lorenz sutured the lacerations and prescribed antibiotics. On November 4, 2002, the employee saw Dr. Basil LeBlanc at the St. Cloud Medical Group for follow-up of his left foot injury. The doctor restricted the employee to a sit-down job for a maximum of four hours per day, and referred the employee for physical therapy. In November, Dr. LeBlanc prescribed a Cam walker. The sutures were removed from the employee=s left foot on December 2, 2002. Physical therapy was continued, and the employee=s hours were increased to eight hours per day at a sit-down job. On December 9, 2002, Dr. LeBlanc released the employee to work eight hours per day in alternate sitting and standing positions. On January 13, 2003, Dr. LeBlanc noted the wound on the bottom of the employee=s foot was finally healed. The doctor restricted the employee to 40 pounds of lifting with no trench-type work.
The employee saw Dr. Kevin Holton at St. Cloud Orthopedic Associates on February 25, 2003, on referral from Dr. LeBlanc. The doctor diagnosed a possible tendon rupture extensor hallucis longus and possible short extensor to the hallux on the left, with possible neuroma at the left forefoot. Dr. Holton ordered an MRI scan, continued the employee=s work restrictions and prescribed a new Cam walker. The scan showed tendinopathy of the flexor hallucis longus tendon with no rupture and the doctor then diagnosed post-traumatic tendinosis and neuritis of the left foot. On June 4, 2003, Dr. Holton diagnosed post-traumatic neuritis with possible entrapment of the medial plantar nerve on the left. The doctor injected the employee=s left foot with Depo-Medrol and Marcaine and released the employee to work on a regular basis wearing tennis shoes with fifteen minutes of rest per hour for the next two weeks and no restrictions thereafter.
Following his personal injury, the employee continued to work for the employer until May 30, 2003. On that date, the employee was given a week off without pay and did not thereafter return to work with the employer. On or about June 15, 2003, the employee moved from St. Cloud to Milan, Minnesota, a town of approximately 300 people in western Minnesota. The employee lived with his parents in Milan for two months, residing in Milan during the week and returning to St. Cloud on the weekends. While living with his parents, the employee testified he applied for work at Delde Foods, Vars and Westcon but did not obtain employment. The employee performed some work for his father who made the June and July payments on the employee=s car loan. From July through approximately October 20, 2003, the employee worked for Robbie Johnson in Sauk Rapids, Minnesota, and testified he was paid $180.00 to $200.00 a week, in cash. After this job ended, the employee again worked for his father for three or four days on weekends. The employee stated his father again made car payments for the employee. As of the date of the hearing, the employee was living in Sauk Rapids, Minnesota.
On June 24, 2003, the employee had returned to see Dr. Holton with continued complaints of pain along the distribution of the medial plantar nerve near the site of the laceration. The doctor offered the employee options for treatment including a repeat injection or a surgical decompression and exploration of the medial plantar nerve. Dr. Holton released the employee to return to work, limiting him to fifteen minutes of standing per hour. On August 7, 2003, Dr. Holton noted the employee had been compliant with his treatment and had no further recommendations other than a repeat steroid injection or surgery.
The employee was examined by Dr. John A. Steubs on October 6, 2003, at the request of the employer and insurer. The employee complained of ongoing pain and sensitivity in his foot which increased and caused swelling when he walked. The doctor opined the employee was suffering from either an entrapment neuropathy of the medial plantar nerve or a post-traumatic neuroma involving the same nerve or one of its branches which interfered with the employee=s ability to walk. Dr. Steubs related this condition to the employee=s personal injury. The doctor opined the employee was a candidate for a surgical decompression and exploration of the medial plantar nerve and opined the employee had not reached maximum medical improvement. The doctor agreed the restrictions assigned by Dr. Holton of fifteen minutes of standing per hour were reasonable.
The employee returned to see Dr. Holton on October 8, 2003, and told the doctor he wanted to proceed with the surgery. The employee testified at the hearing that the surgery was scheduled for December 16, 2003.
The employee filed a claim petition alleging entitlement to wage loss benefits. At the hearing, the employee=s claim was for temporary partial disability benefits from November 23, 2002, through October 20, 2003, and temporary total disability benefits from October 21, 2003, to the present and continuing. (T. 6.) In a Findings and Order filed December 19, 2003, the compensation judge denied the employee=s claim for temporary partial disability benefits through May 30, 2003. The compensation judge found the employee was temporarily and totally disabled from working at his regular occupation from May 31, 2003, through the date of hearing and found any earnings during that period were not significant or earned on any sustained basis. Accordingly, the compensation judge awarded temporary total disability benefits from May 31, 2003, through the date of hearing and continuing. The employer and insurer appeal the award of temporary total disability benefits.
The appellants contend the compensation judge=s decision is legally erroneous in two respects. First, they contend the compensation judge improperly awarded temporary total disability benefits during periods that the employee was working. Second, they contend the compensation judge failed to address their defenses that the employee removed himself from the labor market and failed to make a reasonable and diligent search for employment. In response, the employee argues that his physical condition, together with his training, experience and the work available in his community caused him to be unable to obtain anything but sporadic employment at an unsubstantial wage. Accordingly, the employee contends the award of temporary total disability benefits was appropriate.
A[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an unsubstantial income.@ Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). There is no statutory requirement that an employee affirmatively seek and be denied employment as a prerequisite to a finding of total disability. Where there is evidence that, because of the employee=s age, poor health and lack of training, the employee is completely unemployable and would never be able to locate a job, the employee need not present evidence of a job search. See, e.g., Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978) (and cases cited therein). As a general rule, however, an Ainjured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.@ Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). Unless Afactors such as age, physical condition, training, and experience indicate an employee is incapable of obtaining anything but sporadic work with insubstantial income, an employee under current law must prove total disability by showing unavailable yet suitable work after a diligent job search.@ Id.
In the Scott case, the employee introduced the testimony of an employment expert that because of Scott=s age, poor health and lack of training, he was completely unemployable and would never be able to locate a job. There is no such expert vocational testimony in this case. While the employee here had a significant injury, both Dr. Holton and Dr. Steubs agree the employee is capable of full-time work subject to a restriction of no standing for more than fifteen minutes each hour. The employee testified he was actively employed from July through October, 2003, and earned between $180.00 and $200.00 a week. This weekly income over a three month period is neither sporadic nor insubstantial. We conclude there is insufficient evidence upon which to base a finding that the employee is incapable of obtaining anything but sporadic work with insubstantial income during this period of time.
In the opening statement at the hearing, counsel for the employer and insurer outlined their defenses to the employee=s claim. The appellant first asserted the employee failed to make a reasonable and diligent search for employment. Under Redgate, any claimed entitlement to temporary total disability benefits must be conditioned upon proof of a reasonable and diligent job search. The compensation judge made no factual findings on whether the employee made a diligent job search. The appellants further asserted the employee had removed himself from the labor market during the period of time he resided with his parents. Under certain circumstances, an employee who relocates from a viable labor market to an area where few employment opportunities exist may forfeit entitlement to weekly benefits. Paine v. Beek=s Pizza, 323 N.W.2d 812, 35 W.C.D. 199 (Minn. 1982); compare Giles v. State, Dep=t of Transp., 59 W.C.D. 1 (W.C.C.A. 1999). Similarly, in certain cases, an employee may forfeit entitlement to wage loss benefits by voluntarily working for wages substantially less than the employee=s earning capacity. Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987). As with the issue of diligent job search, the compensation judge made no findings on the defense of withdrawal from the labor market.
The findings and order of the compensation judge are vacated and the case is remanded to the compensation judge. The compensation judge shall make such findings as are necessary to determine whether the employee is entitled to temporary partial and/or temporary total disability benefits during the periods claimed.
 The employee claimed temporary partial disability benefits this period.