BEATRICE L. FREEMAN, Employee, v. SMEAD MFG., SELF-INSURED/GALLAGHER BASSETT SERVS., INC., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 23, 2008
TEMPORARY PARTIAL DISABILITY - RETIREMENT; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBDS. 1(t) and 8. Subdivisions 1(t) and 8 providing for cessation of temporary total disability if the employee withdraws from the labor market or upon retirement, have no application to a claim for temporary partial disability benefits, nor is there any statute or case law authority that bars receipt of temporary partial benefits due solely to an employee’s retirement.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; EARNING CAPACITY. There was ample evidence to support the compensation judge’s award of temporary partial disability benefits where the employee was working and received wages for her work as a daycare provider, where the employer offered no evidence to rebut the presumption that an employee’s actual earnings are an accurate measure of her earning capacity, where the employee clearly had ongoing restrictions as a result of her admitted work injury, and where the employee cooperated with rehabilitation services.
Determined by: Johnson, C.J., Rykken, J., and Pederson, J.
Compensation Judge: Kathleen Behounek
Attorneys: Steven J. Drummond, Drummond Law Office, Alexandria, MN, for the Respondent. Kelly M. Brewbaker, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self insured employer appeals from the compensation judge’s award of temporary partial disability benefits based on the employee’s earnings between November 30, 2006, and September 30, 2007. We affirm.
Beatrice L. Freeman, the employee, sustained a personal injury to her right hand and wrist on March 15, 2005, while employed for Smead Manufacturing, the self-insured employer. The employee’s weekly wage on the date of injury was $526.80. The self-insured employer accepted liability for the employee’s personal injury and commenced payment of benefits.
In February 2005, the employee, who was then 70 years of age, applied for retirement benefits from the employer. Her planned retirement date was April 1, 2005. The employee was unable to return to work with the employer following her March 15, 2005, injury and the employer commenced payment of wage loss benefits. The employee retired on April 1, 2005, and wage loss benefits were then discontinued.
Dr. David P. Falconer, one of the employee’s treating physicians, opined the employee needed limitations on the use of her right arm, including restrictions against high force grasping and lifting greater than 10 to 15 pounds on an infrequent basis or five pounds on a frequent repetitive basis. Dr. Jeffrey Husband, who performed an independent medical evaluation for the employer, opined the employee should avoid repetitive forceful gripping, lifting over 10 pounds with the right upper extremity, and fine manipulation with the right hand. The doctor stated these restrictions were permanent. Dr. Husband rated the employee with an 18.1% whole body disability for loss of motion of the right, index, middle, ring, and small fingers of the right hand. There is no dispute the employee has restrictions and permanent disability secondary to her personal injury.
Ms. Natalie Leske, a qualified rehabilitation consultant, provided medical case management to the employee from May 2005 through September 2005. In September 2005, Dr. Falconer released the employee from further care and Ms. Leske closed her file. On July 13, 2006, Ms. Leske met with the employee for a rehabilitation consultation. A rehabilitation plan was signed in August 2006 that provided for medical case management services with the goal of returning the employee to work with a different employer. Ms. Leske testified one of the provisions of the rehabilitation plan was vocational testing to develop job goals, but the testing was delayed until July 2007. In September 2007, the parties entered into a Job Placement Plan and Agreement which called for a full-time job search. The parties stipulated the employee cooperated with her rehabilitation consultant and the rehabilitation plan.
In June 2006, the employee’s son George had moved into her home with his three minor children. Mr. Gibson qualified for payment of daycare services from Dakota County. The employee provided home daycare for her grandchildren between November 30, 2006, and September 30, 2007. The employee was paid by Dakota County at an hourly rate that depended upon the number of children in her care and their ages. The employee was paid for four hours of daycare each day during the school year and full-time hours during the summer of 2007. The employee did not look for other employment during the time she provided daycare for her grandchildren.
The employee filed a claim petition seeking payment of temporary partial disability benefits based upon her earnings from Dakota County. Following a hearing, the compensation judge found the employee was neither retired nor withdrawn from the labor market between November 30, 2006, and September 30, 2007. The compensation judge found the employee sustained a reduction in her earning capacity due to her personal injury, found the employee was entitled to the presumption that her earnings with Dakota County were an accurate reflection of her earning capacity, and found that the self-insured employer failed to rebut that presumption. Accordingly, the compensation judge awarded temporary partial disability benefits. The self-insured employer appeals.
The compensation judge found the employee was neither retired nor withdrawn from the labor market between November 30, 2006, and September 30, 2007. The self-insured employer contends this finding is unsupported by substantial evidence. The appellant asserts the employee voluntarily retired from the employer, a decision made prior to her March 15, 2005, work injury. In addition to a retirement pension from the employer, the employee applied for and received Social Security retirement benefits. The appellant contends the evidence compels a conclusion that the employee retired and withdrew from the labor market, and the award of temporary partial disability benefits is, accordingly, legally erroneous. We disagree.
There is no dispute the employee retired from Smead Manufacturing and is receiving Social Security retirement benefits. Admittedly, the employee may not have had any intention of returning to work until her son moved in with her and needed daycare for his children. The employee’s intention to return or not return to work is not, however, determinative of her claim for temporary partial disability benefits. Minn. Stat. § 176.101, subd. 1(t), provides that temporary total disability shall cease if the employee withdraws from the labor market. Minn. Stat. § 176.101, subd. 8, provides that temporary total disability benefits cease at retirement. The statute further provides that an employee who receives retirement benefits under the Social Security Act is presumed retired. In this case, the employee claimed temporary partial, not temporary total, disability benefits. Neither statute is, therefore, applicable. We find no authority for the argument that retirement bars receipt of temporary partial benefits.
“Temporary partial compensation may be paid only while 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, subp. 2(b). To establish entitlement to temporary partial disability benefits, an injured employee must establish the employee has a work-related injury resulting in disability, has a loss of earning capacity causally related to the work injury, is able to work subject to the disability, and has experienced an actual loss of earning capacity. Dorn v. A. J. Chromy Constr. Co., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976).
From November 30, 2006, through September 30, 2007, the employee was working providing daycare services and received wages from Dakota County. As a general rule, an employee’s actual earnings are presumed to be an accurate reflection of the employee’s ability to earn or earning capacity. Roberts v. Motor Cargo, Inc., 104 N.W.2d 546, 21 W.C.D. 214 (Minn. 1960). The employer has the burden of producing sufficient evidence to rebut the presumption. Mitchell v. White Castle Sys., Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980). The employee is entitled to the presumption that her earnings from Dakota County are an accurate measure of her earning capacity. The appellant offered no evidence to rebut the presumption. Accordingly, the employee was employed at a wage loss from November 30, 2006, to September 30, 2007, and her earnings from this employment accurately reflect her earning capacity.
The appellant next argues the employee’s diminished earnings were not a result of her work injury. Rather the employer contends the employee’s loss of earnings was a result of her personal choice to provide daycare services. We do not agree. In essence, the employer argues the employee was underemployed while providing daycare services. But the appellant offered no evidence of any higher paying jobs reasonably available to the employee within her physical restrictions. Absent such evidence, there is no factual basis from which to conclude the employee was underemployed.
Finally, the appellant asserts the employee failed to conduct a diligent job search at any time following her retirement with the employer. Accordingly, the appellant asserts the compensation judge’s award of benefits is erroneous. Again, we cannot agree.
A reasonable and diligent job search is not a legal prerequisite to an award of temporary partial disability benefits. Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995). During the period of time in question, the rehabilitation plan provided only for medical case management services. Generally, when an employee is subject to a rehabilitation plan, the employee’s eligibility for temporary benefits depends more on the employee’s cooperation with the plan than on job search. Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993). It was not until September 2007 that the parties entered into a Job Placement Plan and Agreement that called for a full-time job search. The parties stipulated the employee cooperated with her rehabilitation consultant and the rehabilitation plan.
The evidence in this case fully supports the compensation judge’s findings and order. The award of temporary partial disability benefits is, therefore, affirmed.
 In certain cases an employee may not be entitled to temporary partial disability benefits if the employee’s employment is sporadic or results in an insubstantial income. See Hubbell v. Northwoods Panelboard, 45 W.C.D. 515 (W.C.C.A. 1991); Trafton v. Marriott Corp., 52 W.C.D. 572 (W.C.C.A. 1995). The appellant does not, however, argue the employee’s earnings were insubstantial and our review of the employee’s earnings record does not compel this conclusion.