STUART R. FARNSWORTH, Employee/Appellant, v. NORTHWEST AIRLINES CORP., and KEMPER INS. CO./BROADSPIRE, Employer-Insurer, and HEALTHPARTNERS, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 6, 2007
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s conclusion that the employee is underemployed and his current earnings do not reflect his actual earning capacity, and the judge=s denial of temporary partial disability benefits.
Determined by: Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Gary M. Hall
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Appellant. Mary Hager, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s denial of his claim for temporary partial disability benefits. We affirm.
Stuart R. Farnsworth, the employee, began working for Northwest Airlines Corporation, the employer, in 1967. During his employment, the employee sustained numerous injuries including a whiplash injury in 1967, a right knee injury in 1969, a left knee and shoulder injury in 1971, and a neck injury in 1984. The employee was able to return to work without restrictions following each of these injuries. On December 22, 1986, the employee sustained a personal injury to both elbows. The employer and Kemper Insurance Company/Broadspire admitted liability for these injuries. The employee=s wage on that date was $593.60.
In December 1987, the employee underwent a functional capacity evaluation (FCE). He was given restrictions on sitting, standing, bending, squatting, kneeling, lifting, carrying, repetitive use of the hands, and reaching above shoulder level. These restrictions precluded the employee from returning to his regular job with the employer. The employee was then provided with a position in the employer=s flight times office where he worked until he was laid off in June 2005. The employee=s layoff was unrelated to his restrictions.
On August 10, 2005, William Villa, a qualified rehabilitation consultant, met with the employee for a rehabilitation consultation. Mr. Villa noted the employee was currently receiving severance pay which would end on August 19, 2005, and had applied for a retirement pension from Northwest Airlines. Mr. Villa further noted the employee had applied for numerous jobs and had recently interviewed for a job as a part-time cook at Camp Snoopy, where he was provisionally hired. The employee reported his work schedule would be 4.5 hours a day, two days a week at $8.60 an hour. Mr. Villa concluded the employee qualified for statutory rehabilitation services.
The employee began working at Camp Snoopy in August 2005. He worked two days a week, four to five hours per day, and was paid $8.00 an hour. The employee testified that while working at Camp Snoopy he continued to look for work elsewhere. He testified he applied at Home Depot, Holiday Inn, and stated AI=m always applying for full-time jobs but I get no response.@ (T. 27.) The employee testified he has also applied for jobs at Country Inn, Target, Cold Stone Creamy and Extended Stay Hotel without success. He stated he looked through the paper every week to find positions. At the hearing, the employee introduced no job logs or any written evidence of any job search.
By report dated February 8, 2006, Mr. Villa stated a signed rehabilitation plan had been filed with the Minnesota Department of Labor and Industry. The plan was for Mr. Villa to assist the employee in obtaining full-time work, if medically feasible. However, Mr. Villa stated he needed to determine the employee=s current functional capacities and recommended an updated FCE. By report dated May 30, 2006, Mr. Villa noted an FCE had not been obtained and he inquired of the insurer=s representative about the status of the file. Apparently, no rehabilitation assistance was ever provided to the employee.
David Berdahl, a rehabilitation consultant, met with the employee in June 2006 at the request of the insurer for a vocational evaluation. The employee told Mr. Berdahl he was then working two five-hour shifts at Camp Snoopy, but felt he was unable to work more hours. Mr. Berdahl opined, given the employee=s education and vocational background, he has a demonstrated ability to learn and perform work at the semi-skilled level. He stated the employee could work on a full-time basis in a security position, a light-delivery/driving position, as a shuttle driver, in customer service, as a hotel front desk clerk, and in some manufacturing environments. Mr. Berdahl opined that should the employee choose to pursue full-time employment, large numbers of jobs with multiple employers were available within his restrictions. Mr. Berdahl stated the job at Camp Snoopy was not representative of the employee=s earning capacity, and opined the employee had an earning capacity from $8.50 to $15.00 per hour on a full-time basis.
The employee=s claim for temporary partial disability benefits was heard before a compensation judge at the Office of Administrative Hearings. The compensation judge found the employee performed less than a diligent job search which constituted a partial withdrawal or retirement from the labor market. The compensation judge further found the employee was under-employed and found his earnings at Camp Snoopy did not reflect his actual earning capacity. Based on these findings, the compensation judge denied the employee=s claim for temporary partial disability benefits. The employee appeals.
The employee contends his earnings at Camp Snoopy should be presumed to be an accurate reflection of his earning capacity and argues that presumption was not rebutted by the employer and insurer. Further, the employee contends he has made a diligent search for employment, essentially without any rehabilitation assistance. While the employee concedes he may be underemployed, he asserts he is not purposely underemployed. For these reasons, the employee contends the compensation judge erred in denying temporary partial disability benefits.
To demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity causally related to the disability. Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). The issue in this case is whether the employee has proven his loss of earning capacity is causally related to his disability. An employee released to work on a full-time basis but employed only part-time may still be eligible for temporary partial disability benefits if the part-time position is all the employee is able to obtain because of the disability. See, Denardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 42 W.C.D. 626 (Minn. 1990). Thus, while a reasonable and diligent job search is not a legal prerequisite to an award of temporary partial disability benefits to an employee working part-time, it is evidence which a compensation judge may consider in determining whether the employee=s wage loss is causally related to the work injury. Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).
Generally, when an employee has a qualified rehabilitation consultant or when a rehabilitation plan is in effect, the focus is less on job search than on cooperation with rehabilitation. Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993). In this case, the employee had a QRC and apparently a rehabilitation plan was in effect, although the plan was not submitted into evidence. According to Mr. Villa=s reports, the focus of the rehabilitation plan was to be a search for full-time work. It does not appear from those reports, however, that Mr. Villa was actually involved in or assisted the employee in any job search. Nor is there any evidence regarding whether or not the employee cooperated with rehabilitation. In view of the employee=s limited involvement with his QRC, cooperation with rehabilitation is not the appropriate standard under which to review this case.
Generally, an employee=s actual earnings are presumed to be an accurate reflection of the employee=s ability to earn. Mathison v. Thermo Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976). This presumption may, however, be rebutted by evidence that the employee=s ability to earn is different than his post-injury wage. Wesley v. City of Detroit Lakes, 344 N.W.2d 614, 36 W.C.D. 518 (Minn. 1984). To establish an earning capacity different from actual earnings, however, there must be more presented than evidence of a hypothetical job paying a theoretical wage. Saad v. A.J. Spanjers Co., 42 W.C.D. 1184 (W.C.C.A. 1990).
The employee contends he is entitled to the presumption that his actual earnings at Camp Snoopy are representative of his earning capacity and argues the presumption was not rebutted. The employee testified he commenced looking for work immediately following his layoff by the employer and was offered only one position which he accepted. In addition, the employee testified he has continued to look for work without success since beginning the job at Camp Snoopy. Mr. Berdahl=s opinions, the employee contends, were based principally on hypothetical jobs paying theoretical wages. For these reasons, the employee asserts the compensation judge=s denial of temporary partial disability benefits should be reversed.
What the employee is able to earn in his partially disabled condition is a question of fact. Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). Although the employee has physical restrictions, there is no evidence he is unable to work on a full-time basis. The employee currently works only ten hours a week and earns approximately $80.00. Mr. Berdahl opined there are numerous full-time jobs in the employee=s labor market for which he is vocationally and physically qualified. Further, Mr. Berdahl performed a labor market survey in July 2006, in which he talked to employers regarding jobs in security, front desk, cashiering, assembly and customer service. This labor market survey identified specific jobs that are available in a variety of areas with entry-level salaries of approximately $8.00 an hour. While a job search is not a requirement for an award of temporary partial disability benefits, the compensation judge found the employee=s efforts were less than diligent. Although the employee testified he has searched for other employment, he introduced no job logs or other evidence that he has sought or applied for full-time employment. From this evidence, the compensation judge could reasonably conclude the employee is underemployed and that his present earnings do not reflect his actual earning capacity.
On appeal, it is this court=s function to determine whether Athe findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1(3). Findings of fact are to be affirmed if, in the context of the record as a whole, 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). AWhere evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). The compensation judge=s determination that the employee was underemployed is a reasonable conclusion to be drawn from the evidence. Accordingly, the compensation judge=s decision denying temporary partial disability benefits must be affirmed.