CHARLENE KECK, Employee, v. INDEPENDENT SCH. DIST. 877 and AMERICAN COMP. INS./RTW, INC., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 23, 2008
WAGES - CALCULATION; WAGES - IRREGULAR. Substantial evidence supports the compensation judge’s finding that the employee was paid a shift differential payment during the school year in addition to a base rate of $17.06. Substantial evidence further supports the finding that the employee’s wage was not irregular or difficult to determine. However, this court modifies the wage determination to correct an arithmetic error in the wage calculation.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee’s testimony, QRC testimony, rehabilitation records and job logs, supports the compensation judge’s finding that the employee was eligible for temporary partial disability benefits from April 30 to September 25, 2007.
Affirmed as modified.
Determined by: Stofferahn, J., Wilson, J., and Rykken, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: James T. Hansing, Minneapolis, MN, for the Respondent. Devin J. Murphy, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination of the employee’s weekly wage, and from the award of temporary partial disability benefits between April 30, 2007 and September 25, 2007. We affirm, modifying the weekly wage determination to correct the wage calculation.
Charlene Keck, the employee, began working as a custodian for the employer, Independent School District 877, located in Buffalo, Minnesota, in 1990. After about two years as a part-time worker, she went to full time, working an eight-hour, five-day week at the employer’s high school. At the time of her work injury, the employee was assigned to the high school as a full-time custodian. Her job duties included vacuuming, mopping, dumping garbage, cleaning bathrooms, and replacing light bulbs. During the school year, the employee’s work was performed after the children were dismissed from school. When on this schedule, she received a night-pay differential. In the summer months, when school was not in session, she worked day hours and did not receive the shift differential.
The employee sustained an admitted work injury to her right knee when she twisted it while vacuuming at the employer’s middle school on April 6, 2006. The employee did not seek medical treatment until May 4, 2006, when she was seen at the Buffalo Clinic. She was initially diagnosed with a right knee sprain and a dysfunction of the sacroiliac joint. She was returned to work without restrictions and referred for physical therapy. When next seen at the clinic on June 19, 2006, the employee had failed to improve. The employee was referred for an MRI scan of her right knee.
The scan was performed on June 21, 2006, and revealed a focal radial tear in the medial meniscus, with intra substance degeneration of the posterior horn and body of the medial meniscus, as well as edema and fluid within the proximal anterior cruciate ligament consistent with a partial tear. There was also chondromalacia of the medial patellar facet.
The employee lost her job with the employer in July 2006, for reasons unrelated to the work injury.
The employee began treating with Dr. Brian T. O’Neill in July or August 2006. She subsequently underwent a right knee arthroscopy with partial medial meniscectomy and debridement of the medial femoral condyle on November 2, 2006. On November 14, the employee was released to return to sedentary work with light duty restrictions.
Some time between 2002 and 2004, the employee had bilateral carpal tunnel surgery as the result of an earlier work injury with the employer. In about 2004 or 2005, she also underwent surgery to repair rotator cuff tears in both shoulders as the result of an earlier work injury with the employer. At times during 2006, the employee treated with Dr. Gary Wyard for her shoulder conditions and received physical therapy. On December 1, 2006, Dr. Wyard noted that the employee should observe a ten-pound lifting restriction and limit reaching over shoulder level as a result of her preexisting shoulder condition.
Following a rehabilitation consultation on December 20, 2006, the employee started receiving job placement services from a QRC, Gregory Irle. Mr. Irle prepared a job placement plan and agreement which the employee signed on January 17, 2007. The plan called for a full-time job search with immediate follow up on job leads provided by Mr. Irle, submission of job logs, and four to five daily job search contacts by the employee.
On February 13, 2007, Dr. O’Neill concluded that the employee had reached maximum medical improvement from her right knee condition. He advised that she observe restrictions consisting of minimal use of stairs and that she sit at work as needed. During February the employee also underwent some additional physical therapy. After February, the record does not show additional treatment for the knee condition through the date of hearing.
Some time in March 2007, the employee had a job interview with Arctic Fox for a custodian/production position, which was within the restrictions set forth solely for her knee problems. She was offered the job but had to decline the offer because the production part of the job required heavy lifting of 70 pounds, which exceeded the restrictions for her pre-existing shoulder conditions.
The employer and insurer filed a Notice of Intent to Discontinue temporary total disability compensation effective April 6, 2007. The basis alleged for the discontinuance was that the Arctic Fox job offered to the employee was within the restrictions given for the 2006 work injury, and that the employee had refused the job for reasons unrelated to that injury.
In early April 2007, the employee worked one day at AmericInn as a housekeeper but was unable to continue in this job as the work was too heavy. On April 30, 2007, the employee began a part-time job as a housekeeper for ServiceMaster, working about 17 hours per week at $9.00 per hour. The employee testified that she was told that additional hours might eventually become available in this job, but she did continue some job search activities and continued to be assisted by QRC Irle.
The employee was examined by Dr. Randall Norgard on behalf of the employer and insurer on May 5, 2007. Dr. Norgard noted that the employee had mild to moderate patellofemoral crepitation. A patellar compression test was positive. Dr. Norgard agreed that the employee had sustained a work-related right medial meniscus tear, and had sustained a 2 percent permanent partial disability, with maximum medical improvement having been reached on February 13, 2007. He considered her lumbar and sacroiliac symptoms to be the result of a 1997 work injury. He opined that no further treatment was needed as a result of the 2006 work injury and that the employee could work without restrictions.
On May 31, 2007, a compensation judge denied the employer and insurer’s request for discontinuance based on the employee’s refusal of the Arctic Fox job offer, but ordered discontinuance of temporary total disability benefits effective April 30, 2007, based on the employee’s return to work at ServiceMaster. On July 17, 2007, the employee filed an objection to discontinuance and a claim petition alleging a consequential injury to the low back and entitlement to temporary partial disability compensation from and after April 30, 2007.
A vocational assessment was conducted by Michael Kahnke, a certified disability case manager, in September 2007, on behalf of the employer and insurer. Mr. Kahnke noted that the employee had not followed up on all job leads sent to her by her QRC, had failed to fully document her job search efforts, and had not fully met the guidelines of her job placement plan. He also conducted a labor market survey which showed several jobs to be available within the employee’s restrictions that paid more than $9.00 per hour. Mr. Kahnke opined that the employee had not performed a reasonably diligent job search and had failed to fully utilize her QRC’s services. In his opinion, the employee could potentially make $15.00 per hour working as a property manager.
A hearing was held before a compensation judge on October 26, 2007, to consider the employee’s claim petition and objection to discontinuance. In addition to other matters not appealed to this court, the issues at the hearing included the calculation of the employee’s wage as of the date of injury, and her claim for temporary partial disability compensation from and after April 30, 2007. At the beginning of the hearing, the parties stipulated to a 2 percent permanent partial disability from the knee injury, and further stipulated that “The employee earned an hourly wage of $17.06 in her job with the employer during the months of September to May.”
Following the hearing, the judge found that the employee’s weekly wage was $701.66 on the date of injury. The judge found that the employee had cooperated with vocational rehabilitation after April 30, 2007, but that the preponderance of the evidence indicated that the effects of her knee injury were not a substantial contributing cause of any wage loss after September 25, 2007, the date on which the employee met with Mr. Kahnke for vocational assessment. The employer and insurer appeal from the weekly wage calculation and from the award of temporary partial disability from April 30, 2007, to September 25, 2007.
1. Wage Calculation.
The compensation judge found that the employee’s weekly wage on the date of injury was $701.66, noting in his memorandum that he had accepted the figure as set forth in the employee’s post-hearing memorandum. Specifically, the employee’s memorandum argued that the employee’s wage was properly calculated by multiplying eight hours times the base wage of $17.06 per hour, multiplying the result by five to obtain a weekly wage, and then adding an amount representing the weekly portion of the employee’s night shift differential.
The employer and insurer argue that the compensation judge’s finding must be reversed on the basis that the parties were not granted an equal opportunity to be heard on the issue. They point to the compensation judge’s statements, at the close of the hearing, when noting that he would accept brief post-hearing memoranda, not to exceed five pages. In discussing the memoranda, he noted that “I don’t think I need anything on wage, I think I understand the issue on wage.” Based on this statement, the appellants decided not to address the wage issue in their memorandum. They contend that, under these circumstances, it was unfair for the compensation judge to consider the wage arguments made by the employee’s post hearing memorandum.
We disagree. The judge’s comments noting he understood the wage issue were merely advisory with respect to the parties’ use of their limited page space. The suggestion that the wage issue appeared clear did not preclude either party from addressing that issue in the memorandum. The weekly wage of the employee was identified by the compensation judge as one of the issues for determination and the appellants presented an opening argument at the hearing in which they set out their legal position on the wage issue. The appellants had opportunity at the hearing to present their evidence and to rebut the evidence offered by the employee. The employee’s post-hearing memorandum did not offer additional evidence, and the judge considered only the legal argument and calculation method suggested by the employee. The question for this court is whether the weekly wage found by the compensation judge is supported by substantial evidence and is in accord with the applicable law.
Under the statute, an employee’s weekly wage “is arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.” Minn. Stat. § 176.011, subd. 18. In situations where the employee’s daily wage was irregular or difficult to determine an average wage is determined by dividing the total earnings during the 26 weeks preceding the injury by the number of days in which the employee actually worked, and the resulting daily wage is multiplied by the average number of days worked per week during the same 26 weeks. Minn. Stat. § 176.011, subds 11, 18. The goal of the wage determination is to arrive at a fair approximation of the employee’s probable future earning power which has been impaired because of the injury. Bradley v. Vic’s Welding, 405 N.W.2d 243, 39 W.C.D. 921 (Minn. 1987).
The employee testified that her work schedule was always that of an eight-hour day in a 5-day, 40-hour week. The employer and insurer dispute that the employee was scheduled to work on this basis. Instead, they contend that in actual practice the employee’s pay and hours deviated from the intended schedule to such an extent that the employee’s daily wage was irregular or difficult to determine, and thus should have been calculated by the 26-week averaging method.
In support of this contention, the employer and insurer first argue that the fact that the employee was paid differently depending on whether school was in session rendered her daily wage inherently irregular. However, this pay differential was itself regular, being payable for about nine months each year and then ceasing for the summer months. Since the shift differential pay was itself regular, we do not accept the contention that its seasonal variation renders the employee’s daily wage irregular or difficult to determine.
The appellants next point to wage summaries prepared by the employer which appear to show that the employee occasionally worked less than eight hours in a day or less than five days in a week. However, the employee testified that most of the hours variations shown reflected dates on which she took time off from work for medical problems or illnesses, and we note that the wage summaries submitted show corresponding sick leave, holiday pay, vacation pay, and personal leave pay for most of those dates on which the employee’s work hours deviated from the regular schedule during several months preceding the injury. No witness other than the employee testified on this issue.
We conclude that substantial evidence supports the compensation judge’s apparent conclusion that the employee’s wage was not irregular or difficult to determine. Accordingly, we affirm the use of a calculation based on a simple multiplication of the hourly pay rate by 40 (five days x eight hours/day).
The parties stipulated that the employee was paid at the rate of $17.06 per hour during the school year. The employee also testified that she was paid $17.06 per hour, and further testified specifically that an additional $80 per month was paid as shift differential pay during the school year. The compensation judge accepted this testimony and adopted a calculation using these figures.
The appellants assert that the $17.06 hourly rate to which the parties had stipulated already included the shift differential pay, so that the compensation judge’s calculation included the shift differential twice. They argue that the stipulation as to the wage rate, as well as the wage records submitted, clearly contradicted the employee’s testimony, and that the compensation judge erred in using the $17.06 as a base rate to which the shift differential was added.
We note, however, that the language of the wage stipulation as to the handling of the shift differential as recited in the transcript and findings is ambiguous. While the reference to the school year certainly can be read to suggest that this wage rate may have included the shift differential, the stipulation does not explicitly so state, and could also be read as a statement of the employee’s hourly base rate.
As to the employer and insurer’s wage exhibit, we note, first, that it does not consist of original payroll records, but instead appears to be a wage summary prepared for litigation. The only sheet which appears likely to have been prepared directly from original pay information is an insurance form entitled “26 Week Wage History,” which bears the printed notation “for claim use” and was apparently faxed to the insurer. While that form does state that “[t]his a correct statement of Employee’s earnings as actually taken from our Payroll . . . ,” the signature is that of an unidentified person for whom no job title is given. That page provides a summary of the numbers of hours and days the employee worked in each of the 26 weeks preceding the injury, along with a statement of the amounts paid to the employee on a bimonthly basis. The payments shown do not all seem to directly correspond in any obvious way with the hours listed, and a wage rate cannot be clearly and conclusively calculated from the figures.
We conclude that the compensation judge did not clearly err in adopting the employee’s testimony over the wage rate calculation presented by the employer and insurer.
Although we affirm the method of calculation and the wage rate used by the compensation judge, we conclude that the weekly wage finding must be modified to correct an obvious arithmetic error. Accordingly, we modify the weekly wage finding by substituting a weekly wage of $700.86 (see footnote 1, supra).
2. Temporary Partial Disability.
The compensation judge awarded temporary partial disability from April 30, 2007, the date the employee started working part time for ServiceMaster, to September 25, 2007, the date of the vocational assessment done by Michael Kahnke. Mr. Kahnke’s labor market survey showed several jobs available within the employee’s restrictions that paid more than $9.00 per hour. Mr. Kahnke opined that the employee’s earnings from the job at ServiceMaster were not an accurate reflection of her earning capacity and that she had no reduction in her earning capacity. The compensation judge accepted Mr. Kahnke’s opinion as of the date of the assessment. The employer and insurer appeal from the judge’s award of temporary partial disability.
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. See 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). Where a disabled employee is released to work on a full-time basis but works only at a part-time job, the employee may still be eligible for temporary partial disability benefits if any wage loss is causally related to the personal injury. Nolan v. Sidal Realty, 53 W.C.D. 388, 394 (W.C.C.A. 1995); Giles v. State, Dep’t of Transp., 59 W.C.D. 1 (W.C.C.A. 1999).
The appellants first argue that the employee failed to show that her injury resulted in disability, noting that their medical expert, Dr. Norgard, opined that the employee could work without any restrictions related to the work injury, although she had restrictions associated with her shoulder problems. However, the employee’s physician, Dr. O’Neill, imposed work restrictions due to the employee’s knee condition which provide support for the compensation judge’s award of benefits during this period. The appellants characterize the restrictions imposed by Dr. O’Neill as “nonspecific and open to interpretation by the employee,” and contend that a restriction, for example that the employee be able to “sit as needed,” is too vague to be considered legitimate. We do not agree. Restrictions of this kind are common, and simply reflect the fact that job duties vary, and an employee’s level of pain is often the best indication of when a change in position or activity may be required.
The appellants next argue that the employee failed to show any loss of earning capacity where she was only working part time despite her release to full time work. Whether wage loss during part-time employment is a result of the personal injury is generally a question of fact. Nolan, supra, 53 W.C.D. at 394. In deciding this issue, a compensation judge may consider any relevant evidence on the issue. Stauty v. Luigino’s, Inc., 52 W.C.D. 119 (W.C.C.A. 1994); see, e.g., Denardo v. Divine Redeemer Mem’l Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 631-32 (Minn. 1990) (where a part-time position was all that the employee was able to obtain because of her disability, that part-time wage was the most reliable evidence of the employee’s earning capacity).
Here, the employee had failed to find full-time work, and when offered the part-time ServiceMaster job, accepted that work rather than remain unemployed. The employee testified that, when she took that job, she was told that there was a good likelihood that additional hours would become available. In fact, she was eventually given more hours, although not as many or as quickly as she had been led to expect. She then continued to search for full time work unsuccessfully through the date of hearing. The appellants point out that the employee’s job search failed to fully comply with the requirements of her job placement plan. However, the requirements of the plan were not reduced to reflect her employment status after she began the job at ServiceMaster and both vocational experts conceded a reduction would have been appropriate. In addition, her QRC testified that he believed that she had cooperated with rehabilitation services. The diligence of the employee’s job search is only one factor for the compensation judge to consider and is not an absolute prerequisite to receipt of temporary partial disability benefits. Nolan, supra, 53 W.C.D. at 394. The most relevant factor where rehabilitation services are provided is the employee’s cooperation with rehabilitation. See Schreiner v. Alexander Constr., 48 W.C.D. 469 (W.C.C.A. 1993). We conclude that substantial evidence supports the award of temporary partial disability compensation.
The appellants argue that it was inconsistent for the compensation judge to award temporary partial disability benefits through September 25, 2007, despite expressly accepting Mr. Kahnke’s opinion that the employee had no reduction in her earning capacity due to the work injury. They contend that the same factors on which Mr. Kahnke based his opinion would have been present both before and after that date, and argue that this court must therefore reverse the award of benefits for the period before September 25, 2007. Mr. Kahnke’s opinion was based on a labor market survey which showed various jobs available within the employee’s restrictions at a rate of pay at or above her pre-injury wage. The survey was done in September 2007, and did not demonstrate that the jobs would have been available to the employee during most of the period for which benefits were awarded.
The employer and insurer point to the jobs offered to the employee with Hedberg Aggregates and Arctic Fox, which were available to the employee shortly before she began work with ServiceMaster. They contend that those job offers are further evidence that the employee had no loss of earning capacity as a result of the work injury during the period for which temporary partial disability benefits were awarded. The employee, however, was unable to perform these jobs due to the medical restrictions applicable to her shoulder condition. The appellants argue that this is immaterial in that the jobs could have been done within the restrictions solely applicable to the work-related knee injury. At the time of her knee injury, the employee had had earlier work injuries to her low back, her wrists and her shoulders but was able to continue to work as a custodian. The fact that a potential job was inappropriate because of her shoulder injury does not mean that she no longer had a loss of earning capacity from her knee injury. Similarly, if a potential job was inappropriate because of the extent of the employee’s education or training, the employer and insurer could not claim that the employee’s loss of earning capacity from the knee injury was somehow eliminated. An injured employee is not a collection of body parts but is a whole person and the employer takes the employee as she is. The employee’s rejection of a job which was physically inappropriate does not preclude her from an award of temporary partial disability.
 In her post-hearing memorandum, the employee calculated the wage as follows:
$17.06 per hour x 8 hours = $136.48 daily wage
$136.48 x 5 days = $682.40
Shift differential $80.00 per month ÷ 4.33 (representing average number of
weeks in a month) = $18.46
$682.40 basic weekly wage + $18.46 = $701.66 [sic].
We note that the employee’s total is arithmetically inaccurate, as the total based on this calculation would not be $701.66, but $700.86.