HJALMER W. LAMMINEN, JR., Employee/Appellant, v. POTLATCH CORP., SELF-INSURED/COMPCOST, INC., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 8, 2007
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Where the employee was working full time, at a wage loss and with significant restrictions related to his injury, and where there was no evidence of higher-paying work available to the employee, no evidence that the employee refused higher-paying work, and no evidence that the employee failed to cooperate with rehabilitation efforts during the period in question, substantial evidence did not support the compensation judge=s denial of temporary partial disability benefits.
Determined by Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Eric W. Beyer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant. James R. Waldhauser and Susan M. Thill, Cousineau McGuire, Minneapolis, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the judge=s denial of temporary partial disability benefits. We reverse.
The employee began work for Potlatch [the employer] in September of 1973. He originally worked as a laborer and four or five years later was trained as an electrician. He did not obtain any certifications as an electrician at that time.
The employee sustained a work-related injury to his neck on October 15, 1991. As a result of that work injury, he has restrictions against overhead work, prolonged bending, lifting, and sitting, and heavy lifting over 40-50 pounds. The employee continued to work for the employer as a maintenance electrician until he was laid off in 2002. He was not hired by the company that acquired the employer, and rehabilitation was assigned.
The employee first worked with QRC Dee Koskela, who initiated a job search. The employee obtained a job with JD Byrider as a lot attendant in approximately October of 2003. When that business closed, rehabilitation efforts focused on finding the employee other employment. Wende Morrell became the employee=s QRC in 2004. In May of 2004, the parties entered into a stipulation for settlement wherein it was agreed that the employee would undertake the testing procedures to obtain a Masters of Electrician license. After three tries, the employee passed the test in the summer of 2004, and the employee=s placement specialist set a goal of finding the employee work as an electrician Afor an industry.@ In October of 2004, the employee obtained a job with the Salvation Army doing general maintenance and janitorial work. It began as part-time work but became full time after a few months. While the job was part time he continued to work with the QRC and placement specialist Dan Tracey to find other work.
QRC Morrell identified Atwo or three job opportunities@ utilizing a masters of electrician license, at M.E. Global, WLSSD, and Minnesota Power. In her deposition, taken on January 29, 2007, she testified that the employee Awas not particularly interested in these@ and that she did not believe that he had applied for those jobs.
The employee testified that the job with M.E. Global required welding, which he was not qualified to do, and that he could not handle working around fumes. He testified that he did contact human resources with that company to discuss the job requirements, and did submit an application, but he was never offered a job. The employee testified that he also inquired about work at WLSSD. It was his understanding that that job involved instrumentation, which requires a separate licensure that he did not have. He also testified that he nevertheless applied for the job but was not offered work with that employer. With regard to the Minnesota Power opportunity, the employee testified that this was a lineman job that was outside of his restrictions.
The employee worked for the Salvation Army until the fall of 2005, when he was laid off. The employer paid temporary partial disability benefits throughout that employment. The employee obtained work again on approximately October 23, 2005, with Dominium Management Services, as a caretaker. This was full-time work starting at $8 per hour, with a raise to $9 per hour in January of 2006. On January 18, 2006, a Notice of Rehabilitation Plan Closure was filed by the QRC, indicating, A[p]lan completed (employee returned to suitable gainful employment).@ The employee ceased working for Dominium on February 26, 2006, because the job was too physically demanding.
The employee was out of work between February 26, 2006, and July 3, 2006. During that time, an acquaintance at his church suggested that the employee check with the local electricians= union and take steps to get on the union list. The employee got on the list in May of 2006 and secured work as an electrician on July 3, 2006, with API Electric Company, earning $29 per hour. The employee had a wage loss through July 9, 2006, but earned more than his pre-injury wage the next week. However, this was only a two-week job. The employee held a few more two-week jobs between July 16, 2006, and November 26, 2006.
The employee filed a claim petition on December 14, 2005, seeking temporary partial disability benefits continuing from October 24, 2005, and requesting the services of a QRC. The employer answered on December 20, 2005, contending that the employee was not working up to his earning capacity potential Aby reasons of personal choice.@ The matter proceeded to hearing on January 30, 2007, at which time the employee was claiming benefits for a closed-ended period of temporary partial disability from October 23, 2005, to February 25, 2006. The primary issue at hearing was whether the employee=s actual earnings during that period were representative of his earning capacity.
In findings and order filed on February 14, 2007, the compensation judge denied the employee=s claims for temporary partial disability benefits, finding that the employee=s actual earning capacity during that time exceeded his pre-injury wage. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, Aunless 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 Prod., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
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). 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 that is causally related to the disability. Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 47, 245 N.W. 2d 451, 454, 29 W.C.D. 86, 91 (1976).
An employee=s actual post-injury earnings are presumed to be an accurate measure of the employee=s ability to earn. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960), citing 2 Larson, Workmen=s Compensation Law ' 57.21. 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). In order to establish an earning capacity different from actual earnings, an employer must do more than present 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.
It is undisputed that the employee has physical restrictions as a result of his work injury. Those restrictions include avoiding overhead work, prolonged bending and lifting, prolonged sitting, and heavy lifting over 40-50 pounds. The employee also needs to be able to move around and change positions as necessary.
For the period in question (October 23, 2005, to February 26, 2006), the employee was employed by Dominium Management Services as a caretaker for several properties, working full-time, earning first $8 and then $9 per hour. This was work that the employee was initially able to do in his disabled condition but that eventually became too physically demanding, causing the employee to leave the job on February 26, 2006. At hearing on the claim petition, the employer contended that the employee by his own choice failed to seek employment as a master electrician and that, because of that choice, his actual earnings were not indicative of his ability to earn. Counsel for the employer stated, Aadmittedly there has been - - there was not a job offer made in the field that the employee was licensed in at the time rehab was on this case.@ In his decision, however, the compensation judge found that the QRC had presented the employee with three potential job opportunities utilizing his license as a master electrician and that Athe employee did not pursue any of those three options.@ Substantial evidence does not support that finding.
The employee testified that he had applied for two out of three of the purported jobs. At oral argument, counsel for the employer did not dispute that the employee had applied for those two jobs. With regard to the third purported job, with Minnesota Power, the QRC testified, AI=m not sure we even knew what the position was.@ She went on to testify, AIt was listed and he pursued it.@ The employee testified that the potential opening with Minnesota Power was for a job as a lineman, a job inconsistent with his physical restrictions. The QRC agreed that the employee would not be physically capable of performing a lineman=s job. There is in fact no evidence of any actual job offer, that was refused by the employee, that would allow the judge to find the employee=s earning capacity to be other than his actual earnings.
In denying the employee=s claim, the compensation judge appeared to rely heavily on the fact that, when the employee did finally join the local electricians= union in May of 2006, he found work that paid more than his average weekly wage at the time of injury. The judge=s actual finding in this respect was that Abetween July 3, 2006 and late November 2006 the employee held rather consistent work as an electrician working on various jobs@ and that Aat all times subsequent [to July 9, 2006] the employee=s earnings as an electrician have far surpassed the earnings which he had been making as a custodian at the Salvation Army and at Dominium and has surpassed his date-of-injury wage.@ However, the record does not support the judge=s conclusion that the employee Aheld rather consistent work,@ in that the employee worked only nine out of the twenty weeks in that period.
More importantly, there is no evidence that the employee would have obtained a physically suitable electrician job had he joined the union earlier. The period of claimed temporary partial disability is from October 23, 2005, to February 25, 2006. Other than evidence concerning the three potential job opportunities discussed above, no evidence was submitted as to job opportunities for master electricians during that period. In fact, the QRC testified that most electrician jobs available through a local union would be in the construction industry, which would require Aa lot of modifications@ to allow the employee to be successful as a construction electrician. The QRC also testified that she had never had an electrician on her case load.
Finally, for the period from October 23, 2005, through January 18, 2006, the employee was receiving rehabilitation services. In such circumstances, the issue becomes whether the employee cooperated with rehabilitation. See, e.g., Schreiner v. Alexander Constr., 48 W.C.D. 469 (W.C.C.A. 1993); Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989). The judge did not make a finding either way. However, in his memorandum, he stated,
The Court is not saying the employee intentionally Asabotaged@ his rehabilitation. The Court is not saying the employee made a conscious decision not to pursue the higher paying electrician jobs. However it was because the employee Awas difficult to move from square one,@ it was because the employee made it very clear to his QRC that he did not want to pursue the electrician trade, feeling more comfortable and even more spiritually satisfied working for the Salvation Army, that he effectively closed any avenues of pursuing employment as an electrician.
The QRC testified that there were no problems with the employee submitting job logs during the period of time she worked with him, and she described the employee as Apretty accurate and on the ball,@ indicating that he communicated well with the placement specialist. The record simply will not support the conclusion that the employee failed to cooperate with rehabilitation.
The rehabilitation plan was closed with the agreement of all parties because the Aemployee returned to suitable gainful employment.@ The QRC testified that, when the plan was closed in January of 2006, Ait was felt at that point that it was the best we could do. He was employed full time and it was- it was- it felt like the best thing to do for him.@ Any concerns by the employer that the employee was under-employed could have been addressed by amending the rehabilitation plan.
There was certainly evidence that the employee was difficult to work with, that he did initially indicate that he was not interested in working as an electrician through the union, and that he was Adifficult to move from square one.@ The fact remains, however, that there was no evidence of electrician jobs available to the employee during the period in question, no evidence that the employee refused any electrician jobs, and no evidence that the employee failed to cooperate with rehabilitation efforts. Under these circumstances, and given the fact that the employee was working full time at a wage loss, with significant restrictions from his work injury, the judge=s finding that the employee did not have a loss of earning capacity cannot be affirmed. That finding is, therefore, reversed, and the employee is awarded temporary partial disability benefits as claimed.
 Both the employee=s and the employer=s briefs on appeal indicate that the temporary partial claim was through only February 25, 2006, but the hearing transcript and the temporary partial disability schedule submitted at trial outline a claim through July 9, 2006. The record indicates, however, that the employee stopped working for Dominium on February 25, 2006, and he was not eligible for temporary partial disability benefits while unemployed.