WILLIAM T. O=DONOGHUE, Employee, v. ARAMARK and SPECIALTY RISK SERVS., INC., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 9, 2007
EARNING CAPACITY - SUBSTANTIAL EVIDENCE. Substantial evidence in the form of the employee=s testimony, medical opinion, and medical records, supported the compensation judge=s determination that the employee=s post-injury earnings were a fair representation of his lost earning capacity as a result of his work injury and disability.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Carl J. Sommerer, Sommerer & Schultz, Minneapolis, MN, for the Respondent. James R. Waldhauser, Cousineau & McGuire, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee=s work injury was a substantial contributing factor to his wage loss between November 8, 2005, and the date of hearing. We affirm.
William T. O=Donoghue, the employee, first became employed as a vendor at sporting events in 1982, when he began working part time for a company called Volume Services, later known as Center Plate. The job involved carrying trays of food and beverage products up and down stairs in the stands for sale during Vikings and Twins games at the Metrodome.
In 1990, the employee started an additional part time job as a vendor, working for Ogden Services selling snack products and souvenirs in the aisles of the newly constructed Target Center during sports and music events.
In about 1995, Ogden=s sales of non-food merchandise, particularly T-shirts and hats, were spun off into a separate company, Event Merchandise Incorporated (AEMI@). EMI hired the employee as one of its part-time vendors to sell merchandise during events at the Target Center. By 1997 or 1998 he was also hired for part-time warehouse work at EMI, assisting with unloading, moving and stocking merchandise and record-keeping. Such warehouse work was usually performed shortly before events. The employee continued to work part time for Center Plate as well as for Ogden Services, which later was acquired by the employer, Aramark.
In 2001 and 2003 the employee also had short term part-time jobs working as a vendor for the Rockettes during their dance season. He also worked sporadically on an on-call basis in 2002 and 2003 providing security at the Minnesota Vikings ALocker Room@ team store at the Metrodome. In 2003, the employee also began working part time at the Excel Center for Center Plate selling novelties at a merchandise stand.
The employee had initially also worked outside the event vending industry in a night stocking job for Target Stores and performing quality control duties on a manufacturing line. However, as the employee added more vending jobs, he eventually dropped the other employments and by 2003 was working solely in this industry. In 2003 and early 2004 the employee worked in six different positions, working principally for Aramark and EMI at the Target Center and for Center Plate at the Excel Center, augmented by the seasonal work for the Rockettes and by the occasional assignments working for the Vikings Locker Room store.
All the jobs except the warehouse job for EMI, which was non union, were subject to union Aseniority@ systems in which those employees who had shown the greatest availability for work during the preceding several months were given the first priority for the next call for work. The employee had reached a fairly high seniority ranking in all the employments and sometimes had to choose between calls by more than one of his employers, when different sporting or entertainment events occurred simultaneously at multiple venues. His work hours varied considerably, with some weeks having few or no events while in other weeks he might work 50 to 60 hours or more at different events and venues. Those jobs in which the employee sold directly to the public were primarily paid on commission.
On February 25, 2004, the employee sustained an admitted personal injury to his low back while working for Aramark when some retractable stairs collapsed causing him to fall backwards. As of the date of injury, the employee=s commission earnings at Aramark had been averaging $123.00 per week, and the parties agreed that his combined earnings from all of his part time jobs at the Metrodome, Target Center, and the Excel Center provided an average weekly wage of $837.76.
The next day, February 26, the employee began treating with Dr. Steven Sabers, a physical medicine and rehabilitation specialist at the Institute for Low Back and Neck Care. Dr. Sabers took him entirely off work until April 7, 2004. On April 8, 2004, the employee was released to work under light duty restrictions, limited to four hours per day with no lifting or climbing stairs. Because of these restrictions, he remained unable to return to any of his usual employments. However, the employer, Aramark, was initially able to provide the employee with some light duty work answering telephones in their warehouse. Later that month, Aramark provided the employee with a cart from which to sell beer in a hallway during Timberwolves games.
In June 2004, the employee=s restrictions were changed to permit moderate duty work on an eight-hour per day basis. This permitted the employee to resume working in his part-time job at EMI=s warehouse, with modifications, and also permitted him to resume his part-time job selling merchandise for Center Plate at a stand in the Excel Center. He has remained restricted to moderate work since that time. These limitations continue to preclude selling products directly in the audience seating areas due to the lifting, bending and stair-climbing involved. The employee estimated that the loss of the ability to sell directly in audience seating areas reduced his sales commissions in such jobs by 75 or 80 percent.
The employee testified that his seniority ratings all dropped markedly following his injury. As a result, he has not received as many opportunities to work as he had usually had prior to the injury. The employee was also called in less frequently in some employments because some of the work which would otherwise have been available was outside his lifting restrictions. The employee testified that his income also declined due to lower commissions in those vending jobs where he had previously been able to sell directly in the tiers of seating but now was only able to sell from a cart or stand in a hallway.
In August 2004, Dr. Sabers recommended that the employee undergo a three-level radiofrequency neurotomy. The employer and insurer disagreed with this recommendation. Because of the dispute over the employee=s medical treatment, the employee did not see his doctor from January 2005 to January 2006. During this period, the employee received chiropractic treatments at his own expense.
In December 2005, the parties reached agreement on a stipulation for settlement settling the employee=s claims for temporary partial disability compensation through November 7, 2005, in return for a lump sum payment. The stipulation also provided a lump sum payment in settlement of out of pocket medical expenses and authorized the disputed radiofrequency neurotomy. An award on stipulation was served and filed on February 1, 2006.
On or about January 3, 2006, the employee had a conversation with James Bastyr, EMI=s director of retail operations, who had been his supervisor at EMI for 14 years. The details of that conversation are in dispute.
In the employee=s version, the employee and Mr. Bastyr were working together at EMI=s warehouse area. Mr. Bastyr asked the employee why he had not gotten his cell phone repaired, so that he could be reached whenever Mr. Bastyr wanted to talk to him. The employee replied that he was juggling work and physical therapy and had not been able to get the phone repaired as the hours during which the repair business was open were limited. The employee then told Mr. Bastyr that he needed to take two weeks off from his job at the warehouse to resume medical treatment with Dr. Sabers and make arrangements for the newly approved neurotomy and to attend to various other matters, including the cell phone repairs. He told Mr. Bastyr that he had trained two coworkers to cover his job and they could take his keys and fill in for him while he sought medical attention. Mr. Bastyr became agitated and claimed not to understand how this would work, and the employee said, AIt=s real [sic] simple, you take the keys . . .@ and held out his keys, at which Mr. Bastyr Astormed out.@ Mr. Bastyr angrily returned about an hour later and told the employee to turn in his security badge and clean out his personal items from the workplace. The employee reiterated that he wasn=t resigning, but merely asking for some time off, but Mr. Bastyr said they would talk about it later when the employee returned from turning in his badge. When the employee returned, Mr. Bastyr had thrown his personal effects into some boxes. The employee again stated he hadn=t quit, but Mr. Bastyr wouldn=t listen to him and simply yelled at him for about 20 minutes.
Mr. Bastyr, on the other hand, testified that the conversation began when the employee complained that he was doing too much work for EMI. Mr. Bastyr responded by offering the employee the option of working fewer hours, performing only the warehouse work for Timberwolves games. According to Mr. Bastyr=s testimony, the employee simply responded that he Ahad a better way to solve his issue of time management,@ at which point he abruptly handed over his keys and walked off. In Mr. Bastyr=s version of the conversation, the employee never said that he needed to take some time off or that he intended to return to his normal warehouse job at EMI within a couple of weeks.
The next day, a memo was posted on the bulletin board stating that the employee had resigned. It is undisputed that the employee then left several voice messages for Mr. Bastyr again stating that he had not intended to resign, but merely was asking for some time off. However, on January 11, 2006, the employee was asked to report for a meeting at which time he was handed a termination form and told to sign it. The employee refused. Subsequently, the employee asked to return to his warehouse job on several occasions, but Mr. Bastyr did not offer him his job back.
In February 2006, the employee underwent the radiofrequency neurotomy surgery, and in March, May, and June 2006, he had epidural injections. These treatments have brought some diminution of pain, but the employee remains subject to permanent medical restrictions. An evaluation by an orthopedic surgeon has been recommended.
The employee has since looked for additional work as a taxi driver or retail sales clerk to supplement his income, but without success. He has not been provided with vocational rehabilitation assistance. He testified that he has continued to work in his various vending jobs to the fullest extent possible. However, through March 2007 he continued to have a significantly diminished income as compared to his pre injury wages.
On February 21, 2006, the employee filed a claim petition seeking temporary partial disability compensation from November 7, 2005 and continuing. The employer and insurer denied liability on the basis that the employee=s diminished earnings were solely due to factors unrelated to the work injury. This issue, along with several other matters not within the scope of this appeal, was heard by Compensation Judge Jennifer Patterson on March 21, 2007. Following the hearing, the compensation judge determined that the employer and insurer had failed to rebut the presumption that the employee=s wage loss during the period for which benefits were claimed was a fair representation of his diminished earning capacity due to the effects of his work injury. The employer and insurer appeal.
An employee is entitled to temporary partial disability benefits where there is 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, 245 N.W.2d 451, 29 W.C.D. 86 (1976). An injured 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); however, in appropriate circumstances, this presumption can be rebutted. See, e.g., Borchert v. American Spirits Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998). To rebut the presumption, the employer must show that the employee has an earning capacity different from that reflected in actual post injury earnings. This requires showing more than a theoretical possibility of a different position or wage. Patterson v. Denny=s Restaurant, 42 W.C.D. 868 (W.C.C.A. 1989).
The compensation judge determined that the employer and insurer had failed to rebut the presumption that the employee=s wage loss during the period for which benefits were claimed was a fair representation of his diminished earning capacity due to the effects of his work injury. Whether an employee=s reduction in earnings during a period of post-injury employment is due to the employee=s injury or to some non-work‑related cause is a question of fact for the compensation judge. Borchert, supra, 582 N.W.2d at 215, 58 W.C.D. at 318.
On appeal, the employer and insurer argue that Asubstantial evidence demonstrates that the employee=s post injury wage loss is not due to his disability but rather due to his personal choices along with economic and business factors.@ (Appellants= Brief at 16). In essence, they argue that the evidence in the case could have sustained a contrary result.
We note, however, that in reviewing cases on appeal, we are charged by statute to 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 (1992). As we have frequently stated, this standard does not permit us to reverse a finding of fact merely because the evidence might sustain a different result. Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). 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 Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Accordingly, we examine the appellants= arguments in the context of whether the construction of facts they urge is so compelling as to preclude another reasonable interpretation.
The appellants first argue that the employee=s restrictions only affect his ability to perform his job with Aramark, and that only his post-injury wage loss in this job should be considered relevant to the question of whether he has sustained a loss of earning capacity causally related to his injury and disability. They further contend that any loss of income in the Aramark job is due to factors unrelated to his injury, pointing to his testimony that, when assignments offered by Center Plate and Aramark conflicted, he would choose to work for Center Plate; and to his testimony that a factor in his reduced hours with Aramark had been a decline in the number of concerts held at the Target Center. They further argue that the employee=s earnings were affected by non-injury-related factors such as variations in the number and types of events being held in the various facilities his employers served.
While the availability of work for the employee during the period at issue fluctuated both seasonally, and in proportion to the number of bookings and level of attendance of events, this was also true prior to the work injury. There was limited evidence, mostly conjectural, to suggest that there was a decline in the extent of available work before and after the date of injury. The employee testified that he had accepted all the work made available to him post injury that he was able to do within his restrictions. He had also unsuccessfully sought other work to augment his income. We cannot say the compensation judge clearly erred in concluding that any periods of diminished bookings were consistent with the pre-injury variations in the employee=s occupation, and in giving them little weight in the question of whether the employee=s injury had caused a diminution of earning capacity during the period for which benefits were claimed.
Further, while it may be technically correct to say that the employee=s restrictions have not precluded his continued employment in any of his pre-injury jobs, this fact does not in itself indicate that his injury and restrictions do not affect his post-injury earnings in most of those jobs. As the appellants apparently concede, the employee=s restrictions preclude his pre-injury job with Aramark selling directly in the audience seating areas. Similarly, the employee testified that, although he was able to continue in his warehouse job at EMI because the job was modified to provide him assistance with tasks that were beyond his restrictions, his restrictions affected his income there by precluding the overtime work he had previously been able to do. His restrictions also affected his earnings at Center Plate in that he was no longer called for work involving some loading or unloading of trucks.
In addition, the employee testified that the restrictions which took the employee off work from February 26, 2004, through April 7, 2004, had a continuing effect on his seniority ranking in the union jobs, which were all of his jobs except for the warehouse work with EMI. He testified that this loss of seniority resulted in diminished earnings as he was less likely to receive job calls than he had been prior to his injury.
The appellants respond that the seniority loss was not caused by the restrictions in effect during the period of employment currently in dispute, and contend that, accordingly, wage loss due to lower seniority was, for this period at least, not causally related to the employee=s injury. They further argue that, as the seniority lists were recalculated every three months based on the number of events worked in the preceding quarter, the employee=s failure to fully regain his seniority ranking was due entirely to his own performance, and not to the effects of his work injury. We disagree. The compensation judge could infer from the employee=s description of the seniority system that it would take some time for an employee to regain seniority where the ability to do so was based on the number of events worked and where the employee=s lower seniority and restrictions were providing a reduced opportunity to work such events. The employee testified that he had only regained his prior level of seniority in one of his jobs, and that only shortly before the date of hearing. The employee=s testimony, accepted by the compensation judge, reasonably supports a finding that the loss of seniority was a continuing effect of the injury, even if that effect was initially set in motion by restrictions that were later superseded.
The appellants next argue that, even if the seniority loss was causally related to his injury, the employee=s burden of proof required that he provide specific evidence to show exactly how the loss in seniority caused a wage loss, for example, by comparing his earnings directly to those of workers who had the same seniority level he held prior to the injury. The appellants= argument is based on an incorrect premise. The employee, who continued to be subject to permanent work restrictions, was here entitled to rely upon the presumption that his post injury wage loss was causally related to his work injury. The appellants bore the burden of proof to show otherwise. In any event, the employee was entitled to rely on his own testimony as to the effects of his lost seniority, and absent evidence to contradict that testimony, the compensation judge did not commit error in relying on it.
The appellants= final argument is that substantial evidence in the record, specifically, the testimony of James Bastyr, could support the conclusion that the employee quit employment which was within his restrictions. Here, where contradictory accounts of the conversation between Mr. Bastyr and the employee were offered by the only two witnesses, the judge=s resolution of the issue necessarily rested primarily on a determination of the respective credibility of the witnesses. Findings based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
The appellants argue that the employee=s account of his request for time off is not credible because a Areasonable employee@ would not have asked for two weeks off during the Timberwolves season, and would either have provided a leave slip from his doctor for the time off, or asked merely for enough time off to make a single doctor=s visit. They further contend that Mr. Bastyr=s account should have been seen as more credible because he wrote down his version of the events a few days after the conversation. We conclude that these arguments simply go to the weight of the evidence, rather than its adequacy. We must therefore affirm the finding that the employee did not voluntarily quit his warehouse job with EMI.
We note, further, that the question as to what events gave rise to the employee=s termination from that job is largely moot, in any event. Even where an employee quits a job or is terminated for misconduct, his right to wage loss benefits continues once Ait has become demonstrable that the employee=s work‑related disability is the cause of the employee=s inability to find or hold new employment.@ Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989); Johnson v. State, Dep=t of Veterans Affairs, 400 N.W.2d 729, 731‑32, 39 W.C.D. 367 (Minn. 1987). That determination is to be made Aupon consideration of the totality of the circumstances including the usual work search >requirements.=@ Id. Here, the employee immediately attempted to replace his lost earnings from the EMI warehouse job by accepting additional work from his other jobs that previously conflicted with the hours of the EMI job, as available, and by searching for other supplemental employment. The judge found that the job search was reasonably diligent but unsuccessful due to the employee=s restrictions and lack of rehabilitation assistance. We cannot conclude that the compensation judge erred in finding that the employee had shown that his work-related disability was the cause of his inability to fully replace the earnings lost from the warehouse job with EMI.
We conclude that the judge=s findings bearing on the issue of post-injury earning capacity have substantial support in the record, and affirm.