JOSEPH A. MEATH, Employee, v. XCEL ENERGY and G.E. YOUNG & CO./CCMSI, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 1, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the employee=s 2001 personal injury was a substantial contributing factor to the employee=s disability and reduced earning capacity during the three months in question.
TEMPORARY PARTIAL DISABILITY; CALCULATION OF BENEFITS. The compensation judge properly held the employee was entitled to temporary partial disability benefits where the employee returned to work earning more than his weekly wage at the time of his second injury but less than the weekly wage at the time of his first injury, pursuant to Brink v. Metropolitan Waste Control Comm=n, 34 W.C.D. 745 (W.C.C.A. 1982). The case is remanded for determination of the percentage of contribution of each injury to the employee=s disability during the time period at issue, under the usual principles of equitable apportionment.
Affirmed in part and remanded in part.
Determined by: Johnson, C.J., Rykken, J., and Stofferahn, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: David K. Cody, The Cody Law Group, Roseville, MN, for the Respondent. Timothy S. Crom and Matthew P. Bandt, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s award of temporary partial disability benefits. We affirm in part and remand in part.
Joseph A. Meath, the employee, sustained an injury to his right shoulder on July 17, 2001, while working for Xcel Energy, the employer, with claims administered by G.E. Young & Company/CCMSI. On that date, the employee earned a weekly wage of $2,224.48. The employer and insurer admitted liability for the employee=s personal injury.
Prior to July 2001, the employee had sustained previous work-related injuries to his right shoulder for which the employer and insurer had also admitted liability. As a result of those prior injuries, the employee underwent a shoulder arthroscopy and partial acromioplasty in 1994 and again in 1996. Following the July 2001 injury, the employee underwent an open rotator cuff repair of the right shoulder in December 2001, performed by Dr. Matthew Eich.
At the time of the 2001 injury, the employee was working a 40-hour week plus overtime. Following this injury, the employee was paid intermittent wage loss benefits from December 2001 through December 2002, and then returned to work with no wage loss until September 14, 2003. Thereafter, the employee was restricted to working 40 hours a week only, and the insurer commenced payment of temporary partial disability benefits.
On July 15, 2004, the employee sustained an injury to his low back arising out of his employment. The employer and insurer admitted liability for this injury. The employee was then earning a weekly wage of $1,236.15, and was also receiving temporary partial disability benefits.
Shortly after the employee=s low back injury, on July 27, 2004, Dr. Eich performed a fourth surgery on the employee=s right shoulder consisting of an arthroscopic evaluation of the shoulder with a subacromial decompression and an open-distal clavicle resection.
Following the 2004 injury, the employee treated for his low back with Dr. Kevin Ronneberg who prescribed medication, physical therapy and epidural steroid injections. Dr. Ronneberg referred the employee to Dr. James Schwender who saw the employee in January 2005. In February 2005, Dr. Schwender performed a laminotomy, discectomy and decompression with foraminotomy at L5-S1. Dr. Schwender released the employee to return to work on a part-time basis in March 2005.
Dr. Robert B. Hartman examined the employee on behalf of the employer and insurer in April 2005, relative to the employee=s right shoulder injury. On examination, the doctor noted a loss of internal rotation of the shoulder, reduced forward elevation, and mild loss of strength in the rotator cuff and concluded the employee was still recovering from the subacromial decompression and distal clavicle resection. The doctor stated the employee would need restrictions on his activities through July 2005, including no repetitive or continuous use of the right arm above shoulder height, and limitations on lifting, pushing, pulling, and carrying with the right arm. Within these restrictions, Dr. Hartman opined the employee was capable of full-time employment and overtime. Finally, Dr. Hartman rated permanent disability secondary to the right shoulder surgeries.
In July 2005, the insurer filed a Notice of Intention to Discontinue Workers= Compensation Benefits (NOID) seeking to discontinue temporary partial disability benefits based upon Dr. Hartman=s opinion that the employee could work full time, including overtime. The employee did not object to the NOID and the insurer discontinued temporary partial disability benefits effective July 3, 2005. Between July 3 and October 4, 2005, the employee worked 40 hours a week but worked no overtime. During this period, the employee earned less than his 2001 weekly wage but more than his 2004 weekly wage. On October 11, 2005, the employee returned to working overtime and, thereafter, worked without wage loss.
The employee filed a claim petition seeking temporary partial disability benefits from July 3 through October 10, 2005. Following a hearing, the compensation judge found the employee was entitled to temporary partial disability benefits based upon his weekly wage for the July 17, 2001, personal injury. In support of the decision, the compensation judge cited Kirchner v. County of Anoka, 339 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983) and Brink v. Metropolitan Waste Control Comm=n, 34 W.C.D. 745 (W.C.C.A 1982). The employer and insurer appeal.
The compensation judge concluded the employee was entitled to temporary partial disability benefits from July 3 through October 10, 2005, and that the benefits should be based upon the weekly wage of $2,224.48 in effect for the July 2001 personal injury. The appellants contend the compensation judge=s reliance on Kirchner is misplaced because the employee=s restrictions against working overtime due to his shoulder injury were lifted prior to the period of temporary partial disability benefits awarded. Accordingly, the employer and insurer argue, the sole reason the employee could not work overtime from July to October 2005 was his low back injury. The appellants argue the judge=s decision is legally erroneous, and any liability for benefits should be based upon a weekly wage of $1,236.15, the wage in effect on the date of the second injury. During this three-month period, the employee earned more than the weekly wage applicable to the 2004 low back injury. Accordingly, the appellant=s argue, the award of temporary partial disability benefits from July to October 2005 must be reversed. We disagree.
Dr. Hartman, the independent medical examiner, examined the employee in April 2005. The employee then complained of aching in his arm and a chronic loss of range of motion in his shoulder. On examination, Dr. Hartman stated the employee=s complaints were supported by examination findings including a loss of internal rotation, reduced forward elevation, and a loss of strength in the rotator cuff. The doctor concluded the employee was still recovering from the subacromial decompression and clavicle resection performed by Dr. Eich. Dr. Hartman opined the employee sustained a 3% permanent disability as a result of that operation and opined the employee was entitled to a 6% permanent disability for the prior rotator cuff repair. The doctor agreed the employee was in need of restrictions on activities of daily living, work activities, and recreational activities through July 2005.
At the December 2006 hearing, the employee acknowledged he had no formal restrictions regarding his right shoulder after July 2005. However, the employee also testified he continued to have problems with his shoulder from a physical standpoint, that he had difficulty working with his right arm over his head, and that his shoulder got fatigued and sore. This testimony is consistent with the employee=s complaints to Dr. Hartman and consistent with the doctor=s examination findings. Moreover, there is no dispute the employee has significant permanent partial disability as a result of his shoulder injury.
The compensation judge found, in an unappealed finding, the employee continued to have right shoulder symptoms at the time of the hearing (finding 43), and concluded the July 2001 injury was a substantial contributing cause of the employee=s reduced earning capacity. Formal written restrictions are not a prerequisite to an award of temporary partial disability benefits, Pierce v. Minnesota Mining & Mfg., slip. op. (W.C.C.A. July 18, 2001); Flaten v. Kohl=s, slip op. (W.C.C.A. Mar. 19, 1998), and a compensation judge may properly base a finding of continuing disability based upon the employee=s testimony alone. Brening v. Roto Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (1975). While the record on this issue is somewhat limited, the compensation judge could reasonably conclude the employee=s shoulder injury had a continuing impact or effect on the employee=s disability and earning capacity during the three months in question.
Case law establishes two methods for calculating liability for temporary partial disability benefits in cases where the weekly wage for a second personal injury is less than the weekly wage for the previous personal injury. In Kirchner, the employee sustained a personal injury following which he returned to part-time work and was paid temporary partial disability benefits. The employee then sustained a second personal injury following which he was totally disabled. The court held the employee was entitled to payment of temporary total disability benefits from the second insurer based upon the employee=s wage at the time of the second injury. Since the employee was partially disabled and entitled to temporary partial disability benefits at the time of the second injury, the court held the insurer for the first injury liable for continuing payment of temporary partial disability benefits during the employee=s total disability. In LaFleur v. Interplastic Corp., slip op. (W.C.C.A. Apr. 4, 1991), this court extended the Kirchner method of calculating benefits to temporary partial disability cases in which an employee sustains successive work injuries, each of which results in a further diminution of earning capacity. This court has limited the application of Kirchner and LaFleur to this unique circumstance. See, e.g., Burgess v. Midland Coops., Inc., 48 W.C.D. 334 (W.C.C.A. 1992).
In this case, the employee sustained a loss of earning capacity after the 2001 personal injury, but the employee=s wages for the period in dispute - - July 3 to October 10, 2005 - - were greater than his earnings on the date of the 2004 injury. Under these circumstances, the principles of Brink rather than Kirchner and LaFleur control the method for calculating liability for temporary partial disability benefits. See, e.g., Geller v. Curran-Houston, Inc., 58 W. C.D. 66 (W.C.C.A. 1997); Burgess, id.
In Brink, the employee sustained three work injuries while employed by three different employers. Each injury contributed to the employee=s eventual temporary partial disability but the employee=s earnings for the benefit period at issue exceeded the employee=s weekly wage on the date of the first injury. This court rejected the first employer=s claim that it had no liability for temporary partial disability benefits because the employee=s earnings exceeded the weekly wage in effect for the first injury. Rather, the court held that liability for benefits should be based upon the percentage of contribution of each injury to the ultimate disability, under the usual principles of equitable apportionment.
In this case, the court ordered that temporary partial disability benefits for the three months in question be paid based on the employee=s 2001 weekly wage of $2,224.48. Pursuant to Brink, however, liability must be equitably apportioned between the injuries, and the proportionate share for each injury calculated using the Kaisershot formula. The compensation judge made no allocation of liability between the two injuries, and the matter is, accordingly, remanded for determination of the percentage of contribution of each injury to the employee=s disability during the period at issue. Additional evidence may be submitted at the compensation judge=s discretion.
 It makes no difference where in the order of injuries the lower wage injury is found, even if it is the injury immediately preceding the current higher wage. Burgess, id. Nor does it matter whether the employee=s temporary partial disability is the result of injuries to the same body part or the result of the combined effects of injuries to multiple body parts. Radika v. Hanna Mining, 56 W.C.D. 52 (W.C.C.A. 1997).
 Kaisershot v. Archer Daniels Midland Co., 23 W.C.D. 706 (W.C.C.A. 1966).