GARY EKDAHL, Employee, v. INDEPENDENT SCH. DIST. #213, SELF-INSURED/BERKLEY RISK ADM’RS, Employer/Appellant, and CENTRAL MINN. NEUROSCIENCES, MEDICAL ADVANCED PAIN SPECIALISTS, BLUE CROSS BLUE SHIELD OF MINN., and U.S. DEP’T OF VETERANS AFFAIRS, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 25, 2008
EARNING CAPACITY - SUBSTANTIAL EVIDENCE; TEMPORARY PARTIAL DISABILITY - RETIREMENT; JOB SEARCH - COOPERATION. Substantial evidence supported the compensation judge’s decision that the employee had a loss of earning capacity related to his work injury, that the employee had not retired for reasons unrelated to his disability, and that, given the employee’s cooperation with rehabilitation assistance, his failure to look for other work did not render him ineligible for temporary partial disability benefits.
TEMPORARY PARTIAL DISABILITY - CALCULATION. Where the employee worked as a volleyball coach for discrete, ascertainable periods following his injury, the compensation judge erred in averaging his coaching income over the year for temporary partial disability benefits calculation purposes, and the judge also erred in using income from auctioneering, spread over the course of the year, when the employee worked as an auctioneer on only two unknown dates during the year.
Reversed and modified.
Determined by: Wilson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Penny Johnson
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent. Patrick W. Ostergren, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge’s award of temporary partial disability benefits. To the extent that the judge awarded benefits for periods during which the employee had no actual earnings, we reverse, and we modify the judge’s decision so as to award temporary partial disability benefits only for the periods during which the employee was working as a volleyball coach.
The employee first began working as an industrial arts teacher in 1974. In 1983, he was hired to work in this capacity by the Osakis School District, ISD #213 [the employer]. While employed by the employer, the employee taught a variety of industrial arts classes, including basic drafting, graphic arts, woodworking, and carpentry.
According to the employee, his industrial arts classes were primarily project-oriented, and he spent the bulk of his day on his feet, demonstrating techniques and the use of tools and assisting students with their assignments. Carpentry projects included the building of small structures, such as garages and storage sheds, and students also performed such assignments as erecting fences and laying sidewalks. The employee testified that his teaching job required bending, stooping, standing, walking, and lifting of tools and various building materials.
In addition to his teaching, the employee was self-employed in a snow removal business, as a bonded auctioneer, and as a manager of rental properties. Also, beginning in 1984 or 1985, he worked for the school district annually as a volleyball coach. The coaching job typically began in mid-August and ended sometime in November, apparently depending on the volleyball team’s qualification for tournaments.
The employee sustained several injuries to his low back in the course and scope of his job as an industrial arts teacher for the employer. The last such injury occurred on September 9, 2004, when the employee experienced low back and radiating leg symptoms while pulling on a machine auger that had become stuck in the mud. The employee subsequently underwent extensive conservative treatment, including a spine rehabilitation program, but his symptoms nevertheless worsened, and, on April 24, 2006, he underwent surgery consisting of an L4 decompression and bilateral L5-S1 foraminotomies.
The employee finished the 2006 school year performing activities such as grading and taking inventory, but he notified the employer that he would not be able to return to his job as an industrial arts teacher due to symptoms related to his low back injury. He did, however, continue to perform his other jobs, with some modification. He testified, for example, that he had to reduce his maintenance activities at the rental properties and that he performed fewer auctioneering and snowplowing jobs after his surgery than he had before. He also testified that, after he left his teaching job, the employer did not offer him the volleyball coaching job again, but he obtained a similar coaching position with another school district.
An MRI scan performed about six months after surgery revealed multi-level degenerative disc disease, with advanced narrowing at L4-5 and L5-S1, moderately severe central canal stenosis at L2-3, mild central canal stenosis at L3-4, and facet and interspace disease at L4-5. The employee continued to experience low back and leg symptoms despite his April 2006 surgery, and, over time, he developed right leg weakness and right foot drop.
In January of 2007, the employee began receiving rehabilitation assistance from QRC Ione Tollefson, who performed primarily medical management services. QRC Tollefson testified that she did not provide job placement services because she did not consider the employee medically stable. In fact, rehabilitation records indicate that, for the most part, the QRC was under the impression that the employee was not released to work. However, medical records indicate that physicians had released the employee to work, subject to restrictions, for much of the period at issue in these proceedings. In any event, in early 2008, Dr. Manuel Pinto recommended fusion surgery to treat the employee’s continuing complaints.
The matter came on for hearing on April 4, 2008, for consideration of the employee’s claim for temporary partial disability benefits from July 7, 2006, through the date of hearing. Issues included whether earnings from the employee’s non-teaching jobs should be included in his weekly wage and the extent of the employee’s earnings from those jobs, both before and after the injury. The employer contended, in part, that the employee was not entitled to temporary partial disability benefits because he was physically capable of working in his pre-injury teaching position but had retired for reasons unrelated to his injury. Evidence presented at hearing included the testimony of the employee, QRC Tollefson, the superintendent of schools for the Osakis school district, and the industrial arts teacher who replaced the employee; extensive medical records; rehabilitation records; and certain records relating to the employee’s earnings from his non-teaching jobs. Certain other records relevant to the employee’s non-teaching earnings were excluded from evidence because those records had not been provided to the employer in a timely manner.
In a decision issued on April 23, 2008, the compensation judge concluded that the employee’s date-of-injury weekly wage was $977.92, based solely on the employee’s earnings from teaching and coaching. Earnings from the employee’s property management and snow removal jobs were not included because those earnings were almost completely offset by expenses, and earnings from the employee’s auctioneering work were excluded for lack of documentation. The judge also concluded that the employee had not voluntarily retired or withdrawn from the labor market, that the employee was not physically capable of performing his pre-injury teaching job, that the employee had cooperated with rehabilitation efforts, and that the work injury substantially contributed to the employee’s temporary partial disability. While the judge denied the employee’s claim for temporary partial disability benefits during 2008, based on a lack of evidence as to earnings or gainful employment, the judge awarded temporary partial disability benefits for 2006, based on the employee’s volleyball coaching pay averaged on a weekly basis over the year, and for 2007, based on coaching and auctioneering income also averaged on a weekly basis over the year. Accordingly, the judge ordered the employer to pay temporary partial disability benefits based on earnings of $62.12 per week for 2006 and $99.01 for 2007. The employer appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the 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 (2008). Substantial evidence supports the findings if, in the context of the entire record, “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). 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, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of 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).
1. Retirement/Withdrawal from the Labor Market
In order to establish entitlement to temporary partial disability benefits, the employee must demonstrate that he has a work-related disability and an actual loss of earning capacity causally related to that disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). In the present case, it is essentially undisputed that the employee is subject to restrictions as a result of his work-related low back condition. The employer argues, however, that the employee remained capable of performing his pre-injury industrial arts teaching job, that he voluntarily retired for reasons unrelated to his work injury, and that he failed to “mitigate his losses” by searching for work or seeking accommodations from his employer. Accordingly, the employer maintains, the employee cannot show that he has a loss of earning capacity causally related to his disability. We are not persuaded.
With regard to the issue of retirement, we acknowledge that there is evidence to support the employer’s position. For example, the employee’s wife, who was also a teacher, retired at the same time that the employee left his teaching job with the employer, at which point the employee had satisfied the “Rule of 90” requirements, entitling him to full retirement benefits. We also note that, according to a February 2006 medical treatment note, the employee had “not [at that point] had a serious discussion . . . regarding surgery because he is in his last year of teaching and he wants to hold off until April or May 2006.” Arguably, as of February of 2006, prior to surgery, the employee could not yet have known what his physical abilities would be for the following school year, suggesting that he intended to leave teaching regardless of his condition.
However, there is also evidence to the contrary. Specifically, the employee testified that he resigned from his teaching job only because he did not feel capable of performing it any longer and that, should his condition improve after the recommended fusion surgery, he would consider applying for another teaching position. He also testified that he had qualified for full retirement benefits under the Rule of 90 a year prior to his resignation, raising as a reasonable inference that eligibility for full retirement benefits was not the impetus for his retirement. The compensation judge expressly accepted the employee’s testimony that he left his job because he simply could not perform it any longer. Credibility determinations are for the compensation judge, see Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and the employee’s testimony reasonably supports the compensation judge’s decision that the employee did not voluntarily retire from his teaching job for reasons unrelated to his disability.
Substantial evidence also supports the compensation judge’s conclusion that the employee was not physically capable of performing his pre-injury job as an industrial arts teacher. In addition to the employee’s own testimony to that effect, QRC Tollefson classified the job as “heavy” to “very heavy” and testified that the employee would not be able to perform that job in light of his low back condition. As the compensation judge explained in one of her findings on this issue,
The employee has multiple objective findings in his low back post-injury that explain the severity and persistence of his symptoms. Multiple doctors have documented his significant right calf atrophy and limp related to nerve damage in the spine. The prior surgery to treat the effects of the work injury relieved some shooting pain in his legs and he had some temporary improvement that allowed him to walk longer distances. He has unfortunately developed progressive leg weakness following the surgery and has not been able to return to his teaching job since the surgery. The work injury substantially contributed to his need for permanent work restrictions. The opinion of Dr. Wyard that he is able to perform the work of an industrial arts teacher is not accepted. While there may be some aspects of the former job the employee would be able to perform, overall, he does not have the balance and ability to lift, twist, squat, and bend to successfully perform the job. Even with lifting assistance and modification of the curriculum, the employee would not be physically capable of performing the industrial arts teaching job.
While there is evidence to the contrary, the record reasonably supports the compensation judge’s decision on this issue.
Finally, the compensation judge did not err in failing to deny the employee’s temporary partial disability claim on job search grounds. It is true that the employee made no attempt to find additional work to replace the income lost from his teaching job and that he was for the most part released to work during the period in question. However, the employee’s rehabilitation plan did not call for him to look for work, and QRC Tollefson testified that she did not consider the employee medically stable enough for job placement activities. When an employee has rehabilitation assistance, the issue is not so much whether the employee has made a diligent job search as whether the employee has cooperated with rehabilitation efforts. See Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993). In the present case, QRC Tollefson testified that the employee was fully cooperative, and there is no evidence to the contrary. Also, as the compensation judge noted, while job search and vocational placement efforts were not part of the employee’s rehabilitation plan, the employer never asked for modification of the plan. We therefore conclude, under these circumstances, that the employee’s failure to look for alternate work does not preclude an award of temporary partial disability benefits.
2. Temporary Partial Disability Benefit Award
As previously indicated, the compensation judge denied the employee’s claim for temporary partial disability benefits in 2008 through the hearing date because there was no evidence that he had any net earnings during that period. The judge’s decision to that effect is not disputed on appeal. The judge also concluded, however, that the employee was entitled to temporary partial disability benefits from July 7, 2006, through the end of that year, based on earnings from his volleyball coaching, $3,230.00, averaged over the year to result in weekly earnings of $62.12. Similarly, the judge combined the employee’s 2007 auctioneering income ($1,461.00 after expenses) and his volleyball coaching income ($3,687.67), averaged that income on a weekly basis over the year, and ordered payment of benefits based on the resulting figure, $99.01.
On appeal, the employer argues in part that the judge erred by ignoring “significant income” from the employee’s other self-employment ventures in considering the temporary partial disability issue. Because the employee had this “significant income” but failed to establish the amount of the income through competent evidence, the employer asserts, the judge’s award is clearly erroneous.
We disagree that the judge erred in her treatment of the employee’s post-injury “income” from his property management and snow plowing ventures. As the employer points out, some documentation concerning the employee’s earnings was excluded from evidence because it was not provided to the employer prior to hearing. However, based on the records that were submitted and the employee’s testimony, it was not unreasonable for the compensation judge to conclude that the employee had no appreciable “earnings” from the snow plowing and property management either prior to or after his work injury. Nevertheless, we agree that the compensation judge erred in her calculation and award of temporary partial disability benefits for 2006 and 2007.
Pursuant to Minn. Stat. § 176.101, subd. 2(b), temporary partial disability benefits are payable “only while the employee is employed [and] earning less than the employee’s weekly wage at the time of the injury.” (Emphasis added.) Eligibility for temporary partial disability benefits is dependent on gainful employment. That is, the employee must not only be working, but the employee must receive a wage or have some earnings as a result of his labor. See Hansford v. Berger Transfer, 46 W.C.D. 303, 314 (W.C.C.A. 1991).
In the present case, the employee’s volleyball job lasted from about mid-August to sometime in November for each year at issue, 2006 and 2007. Because he did not work at this job during the remainder of the year, there is no basis to spread those earnings over the full year for purposes of calculating temporary partial disability benefits. Similarly, the employee’s auctioneering income in 2007 was earned on only two isolated occasions, dates unknown, and the employee testified that he has typically engaged in only two auctions a year since his surgery. Again, we find no basis in fact or law to allow this income to be averaged over the entire year, when the employee was not engaged in any auction activities beyond those two specific unknown dates. In fact, because the employee’s auctioneering activity can only be classified as extremely sporadic, we conclude that the auctioneering income cannot be used as a basis for a temporary partial disability benefits award.
The employee was employed by a school district as a volleyball coach, in both 2006 and 2007, from sometime in August until sometime in November. His earnings from coaching are known and part of the record, and the precise dates of this employment are surely ascertainable. The fact that the employee may also have been working at other jobs throughout the year, from which he had no net earnings, provides no grounds for the compensation judge to calculate benefits as she did. We therefore hold that the employee is entitled to temporary partial disability benefits, based on his actual earnings from volleyball coaching, only during the periods in which the employee was actually engaged in that work. If the parties are unable to agree on the question of just when the employee was working as a coach, the matter will have to be resolved through further litigation. The judge’s award of temporary partial disability benefits for all periods other than the volleyball season is reversed.
 We recognize that there is an argument that benefits should simply be denied because the employee did not establish all the elements necessary for calculation. However, based on the employer’s position at a pretrial, the employee was apparently under the impression that certain agreements had been reached as to how to view the employee’s income. Given the way the matter was litigated, we deem it appropriate to allow for payment of benefits based on the employee’s coaching activities.