RICHARD CURTIS, Employee/Appellant, v. HIRSHFIELD=S, INC., and KEMPER INS. COS., Employer-Insurer, and MERCY HOSP., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 15, 2006
WAGES - CALCULATION; TEMPORARY PARTIAL DISABILITY. Where the record does not contain sufficient documentation of the employee=s earnings at his second job at the time of his injury, nor does it contain documentation of his earnings during the period of time when the employee claims entitlement to temporary partial disability benefits, the compensation judge did not err by concluding that the employee failed to introduce evidence of his claimed wage loss and that the employee did not establish entitlement to temporary partial disability benefits during that period of time.
WAGES - MULTIPLE EMPLOYMENTS. Where the record does not contain sufficient documentation of the employee=s earnings at his second job at the time of his injury, there is insufficient information to support a finding on the employee=s wage rate, and therefore that finding is vacated.
Affirmed in part and vacated in part.
Determined by: Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Danny P. Kelly
Attorneys: Richard Curtis, Isanti, MN, pro se Appellant. David Klaiman and Brian J. Holly, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the denial of temporary partial disability benefits, and also appeals from the compensation judge=s determination of his weekly wage on his date of injury. We affirm in part and vacate in part.
Richard A. Curtis, the employee, began working for Hirshfield=s, Inc., the employer, in 1968. On November 13, 1995, while stocking materials, the employee backed up and tripped over a wooden pallet. He fell backwards, hitting the back of his head on a concrete support beam. The employee initially sought treatment from Group Health/HealthPartners, where his medical records reflect that the employee felt he was unconscious for a few minutes after hitting his head, and that he had experienced dizziness and headache, along with abnormal vision that he described as somewhat Asmoky with wavy lines.@ The employee later experienced aching in his upper and lower back, plus discomfort with forward flexion of his back. A CT scan taken on the date of injury was negative, and Dr. Richard Hovland diagnosed the employee as having a head injury/concussion with secondary visual problems and headache, and a strained back.
The employee had frequent low-grade headaches following this injury. The employee also experienced headaches following a motor vehicle accident in 1985, although he testified that he took no pain medication for headaches following that accident, that his headaches eventually dissipated after that accident, and that the headaches resulting from his 1995 work injury were different than those he earlier experienced. The employee also experienced some dysesthesia of both hands after his 1985 accident, but those symptoms also resolved after that accident. In May 1996, however, the employee reported that his dysesthesia symptoms had recurred after his 1995 work injury and had worsened in the past two months. Those symptoms manifested themselves by the employee=s frequent dropping of items without realizing that he had done so until he heard the items hit the floor. Due to those symptoms, Dr. Hovland referred the employee for a neurological consultation, and he underwent a cervical spine x-ray and EMG which detected right carpal tunnel syndrome. The neurologist diagnosed posttraumatic headaches and prescribed amitriptyline for his headaches.
At the time of his injury, the employee worked with his family-owned businesses, Family Cleaning Service, Inc., and Family Courier, in addition to his full-time employment with Hirshfield=s. At the time of his injury, Family Courier=s sole client was Hirshfield=s, and the employee served as the sole courier for Family Courier. He picked up pouches from Hirshfield=s main office, delivered them to branch offices, and also delivered items back to the main office. The employee worked as a courier six nights per week.
Following the employee=s injury, he continued working for Hirshfield=s on a full-time basis. Due to his headaches, he was prescribed medication, and because his medication affected his concentration and caused drowsiness, he eventually had to discontinue making deliveries. He therefore was unable to continue performing courier services for Family Courier. In 1999, the employee began working at a second job with the Department of Human Services, State of Minnesota, working evenings, caring for disabled adults. He initially worked some mornings and weekends, and by 2000, he began working night shifts, typically working an average of three nights per week.
At an August 1999 visit, the employee reported to Dr. Jeffrey Russum, HealthPartners, that his headaches had been well controlled by approximately seven months post-injury. In August 1999, however, within four days of discontinuing his amitriptyline, he noted reoccurring headaches identical to those he had experienced after his injury. Dr. Russum concluded that the headaches were related to the employee=s head trauma at the time of his work injury, and recommended that the employee continue taking amitriptyline at the same dosage, on an ongoing basis.
In October 2002, the employee consulted Dr. Anita Buckler at Midwest Internal Medicine, reporting that the amitriptyline earlier had controlled his headaches but tended to make him drowsy, that he worked at a job where it was crucial for him to be very alert, and that a change in his medication had resulted in a recurrence of his headaches. Dr. Buckler prescribed revised medication, Neurontin and Vioxx, but that change in medication was unsuccessful. Dr. Buckler=s chart note on October 24, 2002, reflected that the employee=s headaches Aat this time are out of control.@
In late January 2003, the employee remained off work for at least one week due to his headaches. On February 10, 2003, Dr. Susan Evans, Noran Neurologic Clinic, examined the employee at the referral of Dr. Buckler. The employee consulted with her and other medical personnel throughout 2003; his records reflect various modifications in medication throughout that year that were prescribed in an attempt to control his headaches and his related fatigue and side effects. By October 1, 2003, the employee reported that he was unable to work his evening job, advising Dr. Buckler that due to his chronic headaches and related fatigue he did not feel safe working, in part because he felt too fatigued to dispense medications to his clients.
On February 9, 2004, the employee again consulted Dr. Evans, reporting that his headaches had improved under the current medication, but that he felt fatigued throughout the day. He reported being worried that if he returned to his night job, he would fall asleep. Dr. Evans recommended continuing with the current drug regimen needed to control his headaches. In a letter dated February 10, 2004, Dr. Evans stated as follows:
Richard Curtis is a patient of mine that I follow for a headache disorder at Noran Neurological Clinic. At this point, I believe that Mr. Curtis cannot work his second job at night. I believe if he does work the second job at night, he will be at risk for making errors in his work environment because of his daily medications that he takes to keep his headache disorder under control. The medications cause fatigue and can lead to decreased concentration, especially at night. Mr. Curtis also has increased headaches when his sleep pattern is disrupted, as it is when he is working two jobs. Therefore, I feel that Mr. Curtis should be disabled from his night job.
On June 24, 2004, Dr. Joel Gedan examined the employee at the request of the employer and insurer. The employee reported to Dr. Gedan that he earlier had a good response from treatment with amitriptyline but that because it caused him to feel sedated he discontinued taking it to avoid its interference with his work activities. The employee advised Dr. Gedan that he had to give up his courier service and night shift work due to the sedation caused by amitriptyline. The employee reported that he currently had persistent headaches throughout the day but that he continued to work at Hirshfield=s, within restrictions, although if he awakened with a severe headache he did not report to work. Dr. Gedan diagnosed chronic daily headaches and concluded that the employee=s work injury in November 1995 was a substantial contributing factor to the employee=s need for medical treatment and prescription medication. Dr. Gedan advised that, based upon the employee=s description of how he felt with his current medication, he should continue that regimen of medication. He also suggested that the employee could try a small dose of Nortriptyline to replace the Amitriptyline and its sedating side effect. Dr. Gedan also concluded, however, that A[t]here would be no medical basis to place any restrictions on Mr. Curtis= activities.@
On May 2, 2003, the employee filed a claim petition, seeking payment of temporary partial disability benefits for various periods of time since November 13, 1995, based on his contention that he was disabled from performing his second job as a result of the medication necessitated by his injury-related headaches. The employee=s claim petition was addressed at hearing on July 30, 2004. Two issues were in dispute at the hearing: (1) whether the employee was entitled to payment of temporary partial disability benefits during the period of time from November 1, 2003, through February 5, 2004, because he was disabled from performing his second part-time job; and (2) whether the employee=s weekly wage on the date of his injury was limited to his earnings from Hirshfield=s, $587.23, or whether his wage also included his earnings from his separate, part-time work for Family Courier and Family Cleaning Service.
The parties stipulated that the employee earned a weekly wage of $587.23 on November 13, 1995, from his job with Hirshfield=s; the employee also claimed that he earned an additional $219.17 per week from his self-employment at the time of his injury. At the time of his injury, the employee worked full-time for Hirshfield=s, and performed services for his family businesses, Family Courier and Family Cleaning Service. As payment for his courier services, Family Courier reimbursed the employee for his mileage, based upon the mileage rate set by the U.S. Internal Revenue Service. The employee claims that Family Courier paid him $11,397.00 during calendar year 1995, and submitted business tax returns to document that mileage payment. The employer and insurer disputed that $219.17 was an accurate representation of the employee=s earnings from his second job.
The hearing record closed on August 13, 2004, following submission of the parties= proposed findings and order. Before the compensation judge issued his findings and order, counsel advised the judge that the matter had settled. By March 30, 2005, however, counsel for the employee advised the judge that the parties ultimately did not reach settlement and therefore a decision was necessary.
On April 11, 2005, the compensation judge issued his findings and order. He determined that the employee=s weekly wage at Hirshfield=s on November 13, 1995, was $587.23, but concluded that because the employee had not presented any evidence concerning wages from his second job with Family Courier, the judge could not determine what he earned from that second job. The judge adopted Dr. Gedan=s opinion that there was no medical basis for placing any restrictions on the employee=s activities. He also found that the employee did not introduce any evidence of his claimed wage loss from November 1, 2003, through February 5, 2004, and therefore denied his claim for temporary partial disability benefits. The employee appeals.
Notice of Appeal
The employer and insurer claim that the employee=s notice of appeal does not indicate the specific findings of fact being appealed. This court=s review is limited to Athe issues raised by the parties in the notice of appeal.@ Minn. Stat. ' 176.421, subd. 6; Ruether v. State of Minnesota, Mankato State University, 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990). Minn. R. Civ. App. P. 103.03 provides: A[A] notice of appeal is sufficient if it shows an intent to appeal and the order appealed from apprizes the parties of the issues to be litigated on appeal. A notice of appeal is not insufficient due to clerical errors or defects which could not have been misleading.@ See Pischke v. Kellen, 384 N.W.2d 201 (Minn. App. 1986). The employee=s notice of appeal states that the following issues were being raised: AFinding of being served with Notice of Closing File and Dr.=s decision@ and Athat the specific findings and orders appealed from are numbered in the decision as follows: 3 - 13 - 14 -15.@ The employer and insurer apparently argue that this sentence refers to an order and that the Aemployee is not seeking review of an Order handed down by Judge Kelly.@
The decision being appealed is a AFindings and Order.@ The only numbered sentences in the Findings and Order identified with the numbers 3, 13, 14, and 15 are findings which clearly delineate the compensation judge=s conclusions that there are no medical restrictions on the employee=s activities, that the employee did not present evidence of wage loss between November 1, 2003, through February 5, 2004, that the employee=s weekly wage at the time of injury was $587.23, and that the employee was not entitled to temporary partial disability benefits. It is obvious from the employee=s notice of appeal that he is appealing from the above determinations made by the compensation judge, and we conclude that the employee=s notice of appeal is certainly adequate to raise the issues presented in his brief.
Temporary Partial Disability Claim
The employee has appealed from the compensation judge=s findings that his weekly wage on November 13, 2003, was $587.23, and that he is not entitled to payment of temporary partial disability benefits from November 1, 2003, through February 5, 2004. The parties stipulated that the employee earned a weekly wage of $587.23 on the date of his injury, which reflects the employee=s earnings from his full-time job at Hirshfield=s; the compensation judge found that the employee=s wage was limited to that amount. The employee appeals, arguing that his weekly wage should also encompass his earnings from his second, part-time position with his family businesses, Family Courier and Family Cleaning Service. The employee claims that from this second job, he also earned $219.17 per week, which, when combined with his earnings from Hirshfield=s, totaled $806.40. Based on that assertion, the employee claims that he was entitled to payment of temporary partial disability benefits between November 1, 2003, and February 5, 2004, during the time when he was disabled from working at a second job.
Minn. Stat. ' 176.011, subd. 3, provides that the wage calculation for workers' compensation benefit purposes is to be determined on the basis of the wages the employee was receiving from the employment engaged in at the time of injury. Minn. Stat. ' 176.011, subd. 18, states in part, "If, at the time of injury, the employee was regularly employed by two or more employers, the employee's days of work for all such employments shall be included in the computation of weekly wage." The object of a wage determination is to arrive at a fair approximation of the employee=s probable future earning power which has been impaired or destroyed by the injury. Sawczuk v. Special School District 1, 34 W.C.D. 282, 312 N.W.2d 435 (Minn. 1981). See also, Bradley v. Vic=s Welding, 39 W.C.D. 921, 405 N.W.2d 243 (Minn. 1987); Beissel v. Marschall Line, Inc., 58 W.C.D. 470 (W.C.C.A. 1998).
To support his claimed earnings from his courier business, the employee submitted a 1995 tax return filed by his family-owned businesses. That tax return listed the company=s business expenses, including $11,397.00 paid by the company in mileage during 1995. The employee testified that this mileage was paid to him during 1995; the employee=s wife testified that the employee was the sole person who performed the courier services in 1995. Other than the business=s tax return, the record contains no other documentation of the wages or the amounts the employee earned from Family Courier during 1995.
There is no dispute that the employee worked at a second job at the time of his injury. Indeed, Hirshfield=s, the employer, was the sole client for the employee=s courier services. The compensation judge acknowledged that the employee performed driving services for Family Courier, and that Family Courier paid the employee $11,397.00 in 1995. The judge concluded, however, that the employee=s wage was limited to the amount stipulated to by the parties, $587.23. The judge found that, at most, the employee earned an annual income of $1,948.00 from Family Courier in 1995, after deduction of expenses and depreciation from the $11,397.00 paid to the employee; that the employee failed to introduce evidence of his mileage payments received during the 26 weeks prior to his injury; and that, based on the limited evidence in the record, the judge Awould be forced to speculate as to what sums should be included in the employee=s pre-injury average weekly wage.@
The compensation judge also found that the employee failed to introduce any evidence of his claimed wage loss for the period between November 1, 2003, and February 5, 2004. It was during this period, the employee claims, that he was unable to work at his second job with the State of Minnesota because of his injury-related headaches. The employer and insurer also argue that there is no evidence that the employee=s earnings during the disputed period of time were less than the amount he earned at the time of his injury.
In order for an employee to be entitled to temporary partial disability benefits, there must be an actual loss of earning capacity that is causally related to the disability. See Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 46-47, 245 N.W.2d 451, 454, 29 W.C.D. 86, 91 (1976). Our review of the record shows that there was inadequate information on which the compensation judge could determine whether the employee had sustained any loss of earnings, or loss of earning capacity, during the period in dispute. The employee testified that he had been granted a pay increase at Hirshfield=s in 1999, but he did not identify the amount of his pay raise. The employee submitted an itemization of his earnings paid by the State of Minnesota between January 11, 2002, and March 5, 2004, but neither party submitted an itemization of the employee=s earnings from Hirshfield=s between November 2003 and March 2004, the period for which he claimed entitlement to temporary partial disability benefits. As a result, the record does not show what the employee earned during that period of time.
The conclusions that the compensation judge made concerning the employee=s wage and claim for temporary partial disability are Afindings of fact,@ based on information submitted into evidence at the hearing. The compensation judge reviewed that evidence, in addition to the testimony presented at the hearing by the employee and his wife, and made conclusions about the issues argued at the hearing. 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 (2004). 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). Under our court=s standard for reviewing a case on appeal, findings of fact should not be disturbed "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).
In this case, the evidence presented at the hearing does not include sufficient information to support the employee=s claim that, because of his 1995 injury and his related headaches and need for medication, his wages were reduced between November 1, 2003, and February 5, 2004. The employee submitted only partial evidence of his earnings during that period of time. The compensation judge, therefore, did not err by concluding, in Finding No. 13, that the employee failed to introduce any evidence of his claimed wage loss from November 1, 2003, through February 5, 2004. Neither did the compensation judge err by concluding, in Finding No. 14, that the employee did not establish entitlement to temporary partial disability benefits during that period of time. Under our standard of review, therefore, we must affirm those findings and the compensation judge=s denial of temporary partial disability benefits from November 1, 2003, through February 5, 2004.
Although we affirm the compensation judge=s denial of temporary partial disability benefits, we vacate his finding of the employee=s wage on the date of injury. In order to support his claim for temporary partial disability - - that he had sustained an actual loss of earning capacity that was causally related to his disability - - it was incumbent on the employee to provide evidence both of the wages he earned on the date of his injury and the wages he earned during the period when he claimed benefits. As we noted above, the employee provided only partial evidence of his earnings between November 2003 and February 2004, so the compensation judge had no information on which to base an award of benefits for that period of time. The employee likewise presented only limited evidence of his wages at the time of his injury. The compensation judge, therefore, was provided with insufficient information or evidence on which to base a determination of the employee=s wage, just as he had insufficient information on which to base an award of benefits. The compensation judge=s finding that the employee earned $587.23 on the date of injury, therefore, is not supported by the record and would be speculative at this time. For that reason, and because a finding on the employee=s wage rate is not necessary given the compensation judge=s findings on the temporary partial disability claim, we vacate the finding that the employee=s weekly wage was limited to $587.23.
Based on our decision above, we need not address the compensation judge=s reference to the employee=s medical condition nor the issue of whether the employee=s activities were restricted as a substantial result of his work injury.
 This information was derived from the employee=s medical chart notes prepared after his 1995 injury; the record contains no medical records dating from before the November 13, 1995 work injury.
 Dysesthesia is defined as distortion of any sense, especially of that of touch. Dorland=s Illustrated Medical Dictionary, 553 (29th Ed., 2000).
 The business tax returns submitted into evidence list the business=s name as Family Cleaning Service, Inc. The employee=s wife testified that the Family Courier business was started approximately one or two years after the Family Cleaning Service, and that it was characterized as a subsidiary company of Family Cleaning Service.
 The employee arrived at the weekly wage of $219.17 for his work with Family Courier by dividing $11,387.00 by 52 weeks.
 In support of his claim, the employee submitted wage records from his job as a human services technician with the State of Minnesota (Ee. Ex. G). Those records document wages the employee earned between January 2002 and October 2003. The employee was issued biweekly paychecks between January 11, 2002, and October 31, 2003; he earned between $274.20 and $1,220.19 per two-week pay period, which calculates to an average wage of $381.92 per week.