TRAVIS E. HEUER, Employee, v. SCHMIT TOWING, INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and FAIRVIEW HEALTH SERVS., CENTER FOR DIAGNOSTIC IMAGING/PMSI, TWIN CITIES FLOOR COVERING IND. H&W FUND, and TWIN CITIES ANETHESIA ASSOCS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 24, 2006
WAGES - MULTIPLE EMPLOYMENTS. Where the employee was regularly employed by two employers on the date of injury, wages from both employers were properly included in computing the employee=s weekly wage, despite uncertainty as to the employee=s future employment with one employer.
TEMPORARY BENEFITS - FULLY RECOVERED. Where there was no evidence of medical restrictions on employment and no evidence of residual disability from the work injury, it was error to award temporary partial and temporary total disability compensation.
Affirmed in part and reversed in part.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Nancy Olson
Attorneys: David C. Wulff, Law Offices of David C. Wulff, Roseville, MN, for the Respondent. Steven T. Scharfenberg, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination of the employee=s weekly wage on the date of injury and from the award of temporary total and temporary partial disability compensation from July 28, 2003, through September 13, 2003. We affirm in part and reverse in part.
Travis Heuer, the employee, sustained an injury to his right knee on April 20, 2003, while he was working as a truck driver for Schmit Towing. The employee=s current period of employment with Schmit Towing had begun in February 2003, and he testified at hearing that he usually worked approximately 40 hours per week. On the date of his injury, the employee was also employed as a carpet installer for Pro Floor. The employee had begun working for Pro Floor on April 13, 2003, and expected to work there on a full-time basis.
There is a dispute between the parties as to what would have happened to the employee=s job at Schmit Towing after April 20, 2003, had the employee not been injured. The employee testified that, based on his experience with Schmit Towing, he would have been able to work part-time four or five evenings per week plus weekends. A representative of the employer testified that the employee would not have been placed on the work schedule after the date-of- injury pay period and would have been, at best, an on-call employee.
After his injury, the employee sought chiropractic care for his right knee. His chiropractor, Dr. David Lushinsky, ordered an MRI of the right knee, which was done on May 7, 2003, and was read as showing a complex tear of the medial meniscus. Dr. Lushinsky referred the employee to an orthopedist and the employee saw Dr. Christopher Larson at Twin Cities Orthopedics.
Dr. Larson concurred in the diagnosis of a right knee complex medial meniscus tear and recommended surgery. On June 27, 2003, Dr. Larson performed a partial medial menisectomy. When the employee returned to Dr. Larson on July 7, 2003, the employee reported that he was doing well and had Ano significant complaints at this time.@ Dr. Larson recommended range of motion and strengthening exercises.
On July 24, 2003, Dr. Larson completed a workability report in which he released the employee to work with no restrictions as of July 28, 2003. There does not appear to have been an office visit associated with the completion of the form. On July 30, the employee returned to Dr. Larson, stating that he had an injury in bed while bending his knee. Examination showed significant effusion. Dr. Larson aspirated the knee but made no other treatment recommendation and did not address the question of employability. In a follow-up appointment on August 7, Dr. Larson indicated that the employee would be sent to physical therapy and seen for reevaluation in a month. The employee did not return to see Dr. Larson and there are no records of physical therapy after that date.
The record as to the employee=s work activity after his work injury is not completely clear. The employee worked reduced hours at Pro Floor until April 24, 2003, when Dr. Lushinsky took him off work completely. The employee was then released to return to work by Dr. Lushinsky on April 28, with a restriction of kneeling limited to four hours a day. It appears that the employee did not return to work at Pro Floor after that date until after his surgery. The employee worked at Schmit Towing between the time of his injury and his surgery. The employee testified that he did dispatching as well as his usual job, driving. He stated that he was able to handle the driving with his knee condition. His pay records from Schmit Towing indicate he worked 77 hours in the two week pay period ending June 27, 2003, the date of surgery.
The employee testified that he went back to work at Pro Floor after his surgery and his pay records indicate 3.5 hours of work in the pay period beginning on July 27. The employee stated that he had swelling in his knee and had to go see Dr. Larson and at that point Pro Floor let him go. The employee then began looking for work and he Atried to find something a little bit, a little bit more lighter duty than floor covering to make sure that I wouldn=t have to put any employer through that again with me.@ (T 48). The employee did not return to work at Schmit Towing after his surgery and there is no evidence in the record as to the reason for that. The employee returned to another driving job in September 2003.
Schmit Towing and its insurer, State Fund Mutual Insurance Company, denied primary liability for the April 20, 2003, injury. The employee filed a claim petition on April 29, 2004, which was heard by Compensation Judge Nancy Olson on May 4, 2005. Issues at the hearing were whether the employee sustained a work injury to his right knee on April 20, 2003, whether the employee was entitled to temporary partial and temporary total disability compensation from April 20, 2003 through September 13, 2003, and the employee=s weekly wage on the date of injury. In her Findings and Order of June 28, 2005, the compensation judge determined that the employee had sustained a work injury to his right knee as a result of his employment with Schmit Towing. She also determined that his weekly wage was $1,173.60 and awarded the claimed wage loss benefits. The employer and insurer appeal the compensation judge=s wage finding and the award of wage loss benefits.
At the hearing, the employee claimed a weekly wage of $1,183.23. The employer argued for a wage of $1,017.60, representing the earnings from Pro Floor for a 40 hour work week. It was the employer and insurer=s position at hearing that no earnings from Schmit Towing should be included in the wage calculation because the employee intended to work full-time at Pro Floor and after the date-of-injury pay period, the employee would not be a regular employee of Schmit Towing. The compensation judge found a weekly wage of $1,173.60, using the employee=s wage at Pro Floor but adding an additional $144 per week which she stated represented one weekday evening and one weekend day. The compensation judge found this accurately reflected the combination of full-time and part-time work the employee had at the time he was injured. The employer and insurer contend that the compensation judge erred.
The employer and insurer cite to the supreme court=s holding in Sawczuk v. Special School District #1, 312 N.W.2d 435, 34 W.C.D. 282 (Minn. 1981), that the object of 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. Minn. Stat. ' 176.011, subd. 18, provides in part, Aif, at the time of the injury, the employee was regularly employed by two or more employers, the employees days of work for all such employments shall be included in the computation of weekly wage.@ According to the employer and insurer, since the employee would not have been on the work schedule at Schmit Towing after the end of the pay period in which he was injured, he was not a Aregular employee@ of Schmit Towing and his earnings from that employer should not be included in his wage calculation. To do so would overstate the employee=s earning capacity and would be contrary to Sawczuk. We disagree.
The argument advanced by the employer and insurer is contrary to the statute and does not focus on the employee=s status on the date of injury. Instead, we are asked to speculate as to what might have happened had the employee not been injured. Accepting the employer and insurer=s argument would result in a conclusion that the employee had no earnings from a job he had been working for two months and the job he was performing when injured. We decline to reach that conclusion. Further, we note that the statute requires using past earnings to determine the wage on the date of injury. Minn. Stat. ' 176.011, subd. 18.
As of April 20, 2003, the employee was a regular employee of Pro Floor and a regular employee of Schmit Towing. The compensation judge did not err in including the earnings from both employers in arriving at the employee=s weekly wage on the date of injury. The compensation judge=s decision on this point is affirmed.
Wage Loss Benefits.
At the hearing, the parties stipulated that if the employee=s right knee problems were determined to be the result of a work injury, the employee would be entitled to temporary total disability compensation from June 29, 2003 through July 26, 2003. The compensation judge awarded temporary total and temporary partial disability compensation from April 20 through September 13, 2003. The employer and insurer have appealed the award of benefits after July 27, 2003.
The employer and insurer argue that the employee was released to return to work without restrictions as of July 28, 2003, and that work restrictions were never placed on the employee thereafter. The employer and insurer contend that an employee who has no work restrictions is not entitled to either to temporary total disability compensation or temporary partial disability compensation. As authority, the employer and insurer cite to Minn. Stat. ' 176.101, subd. 1(h).
Minn. Stat. ' 176.101, subd. 1(h) is one of a number of Acessation and recommencement conditions@ set out in the statute. Where, as here, primary liability was denied and no temporary total disability compensation was ever paid, benefits did not Acease.@ However, we need not consider the applicability of the statute to this case. Even in the absence of that statutory provision, the employer and insurer are correct in their argument that an employee who is able to return to unrestricted employment is not entitled to compensation for temporary total or temporary partial disability compensation. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987); Serra v. Hanna Mining Co., slip op. (W.C.C.A. April 12, 2005).
The question for this court is whether there is substantial evidence to support the compensation judge=s decision on this issue. We find no evidence which supports that decision. The employee=s treating doctor released the employee to work with no restrictions as of July 28, 2003, and at no time thereafter modified that release or imposed work restrictions. Although the employee consulted Dr. Larson for the swelling in his knee on July 30, Dr. Larson did not alter his release to work and the employee did not testify that this incident affected his employability in any way. The employee did not provide any evidence as to any restrictions he believed necessary in his employment or even any evidence of any ongoing symptoms with his knee. The job to which the employee returned appears to be the same as the job he performed at Schmit Towing before his injury. The employee did not testify that he limited his job search because of residuals from the work injury and stated that he looked for lighter work only so that he would not Aput any employer through that again.@ There is simply no evidence that the employee had any residuals from his work injury which affected his employability after July 28, 2003.
We reverse the compensation judge=s award of compensation for wage loss after July 28, 2003.