JIM D. DWYER, Employee, v. ARAMARK UNIF. SERVS., SELF-INSURED/SPECIALTY RISK SERVS., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 18, 2009
WAGES - MULTIPLE EMPLOYMENTS. Substantial evidence, including the employee’s testimony, commission records, and the testimony of the employee’s QRC, supported the compensation judge’s decision that the employee was regularly employed as a real estate agent at the time of his injury with the employer, for purposes of calculating his weekly wage.
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Where the employee’s work injury precluded him from returning to his pre-injury job, and where the employee’s QRC testified that the employee had a loss of earning capacity causally related to his injury, substantial evidence supported the compensation judge’s award of temporary partial disability benefits. The fact that the employee may have voluntarily resigned from his post-injury employment was not determinative, especially in light of the employee’s testimony that the employment aggravated his work-injury-related symptoms.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Paul D. Vallant
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Respondent. Katie H. Storms, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the judge’s findings that the employee’s earnings as a real estate agent should be included in his average weekly wage and that the employee’s termination of employment with the employer does not preclude him from receiving temporary partial disability benefits. We affirm.
The employee began working for Aramark Uniform Services [the employer], as a route sales representative, on January 15, 2008, earning an average weekly wage of $765.32 in that job. Prior to that time, the employee had been employed solely as a real estate agent.
The employee’s real estate commissions prior to 2005 averaged over $100,000 a year, but, in 2005, the real estate market collapsed, and the employee’s commissions began to decline significantly. At his wife’s urging that he get a job with a regular paycheck, the employee went to work with the employer in January of 2008. He continued to list and show real estate for RE/MAX from January 15, 2008, through March 10, 2008, estimating that he spent 10 - 20 hours a week on those endeavors.
The employee’s job as a route sales representative for the employer required him to bend and twist and lift weights of up to 100 pounds or more on a frequent basis. Although he had undergone two left inguinal hernia repairs and a lumbar spine fusion prior to beginning this job, the employee was physically able to perform the work.
On March 10, 2008, the employee sustained an admitted work-related injury in the nature of a recurrent left inguinal hernia and a right inguinal hernia. The employee underwent laparoscopic repair of the hernias on March 20, 2008, performed by Dr. Dawn Johnson. Dr. Johnson kept the employee off work until mid-April of 2008. It was Dr. Johnson’s opinion that the employee could not return to his pre-injury job, but she released him to light-duty work, restricting him to lifting no more than 25 pounds and limited bending.
The employee returned to work for the employer, at no wage loss, on April 21, 2008, “pucking orders.” This was a desk job but, after working one day, the employee complained that the work aggravated his symptoms at the incision sites, and the employer transferred him to a different job. The employee next worked straightening hangers but found that the required bending and reaching also aggravated his symptoms. On moving to an inventory position, he had the same problem.
The employee’s supervisor, Jimmy Vochoska, then told the employee to make sales calls by stopping at businesses near his previous routes, to find new customers. The job involved a lot of driving, the employee found the seat in his vehicle uncomfortable, and he had difficulty getting in and out of the vehicle, making his incisions uncomfortable. The employee received no training in this position, made no sales, and found the job degrading. When the employee complained about his difficulties with this job, Mr. Vochoska replied that, if the employee could not do the job he had been hired for, he should resign. The employee did resign from his employment with the employer on May 5, 2008, by letter indicating that he was resigning because, “I have concluded that I am not able to perform the duties of the Route Sales Representative.”
Following his termination, the employee immediately commenced a job search. He also continued to list, show, and sell real estate. His earnings in real estate commissions in 2008 totaled $39,768.72, an average of $764.78 a week.
The employee was examined by independent medical examiner Dr. Sean Flood on May 19, 2008. In his report of that date, Dr. Flood opined that the employee could not perform his pre-injury job as a route sales person. He also opined that the employee’s lifting restriction was reasonable and advised the employee against repetitive bending and twisting of the torso.
On June 4, 2008, the employee filed a claim petition seeking temporary total disability benefits continuing from May 5, 2008, and retraining.
On July 10, 2008, a rehabilitation plan was filed with the goal of returning the employee to work with a different employer. QRC Michael A. Anderson had determined that the employee was a qualified employee. The employee was provided with skills training and assistance with preparation of a resume and cover letters.
On January 6, 2009, the employee began working as a salesman for The Garbage Man Company, earning $12.50 per hour for a 40-hour work week. Also in January, he switched to Counselor Real Estate Company. On January 12, 2009, the employer filed a rehabilitation request, seeking to discontinue the rehabilitation plan, contending that the employee had voluntarily terminated his employment and was not in need of rehabilitation as he had a real estate license and “any loss of earning capacity is due to his own actions and not due to his claimed permanent injury.”
The claim petition and rehabilitation request came on for hearing, and, in findings and order filed on March 23, 2009, the compensation judge found, in relevant part, that the employee had been regularly employed both as a real estate agent and by the employer on March 10, 2008; that his earnings from real estate should be included in his average weekly wage; that the employee was entitled to temporary partial disability benefits continuing from May 5, 2008, despite his termination of employment with the employer; and that the employee continued to be qualified for rehabilitation benefits. 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. Average Weekly Wage
Minn. Stat. §176.011, subd. 18, provides that, “[i]f, at the time of the injury, the employee was regularly employed by two or more employers, the employee’s days of work for all such employments should be included in the computation of weekly wage.” The compensation judge found that the employee had been regularly employed by RE/MAX Realty and the employer on March 10, 2008.
The employer contends that the employee did not earn any real estate commissions in 2008 until after his date of injury and that, therefore, real estate commissions should not be included in calculating his average weekly wage as it creates “an unfair presumption of earning capacity.” We are not persuaded.
We concede that no real estate commissions were paid to the employee in 2008 prior to March 10, 2008; however, the employee testified that he continued to list and show houses and that he put in 10 to 20 hours per week on those activities. He further testified that he spent time at his RE/MAX office every day after his work with the employer. In addition, the employee testified that he did not receive a commission for the sale of a house until after the closing, and he received a real estate commission on March 17, 2008, only seven days after his injury. The employee further testified that he never stopped selling real estate after beginning that work in 1984. He was not paid a commission every month, even when real estate work was his only employment. Importantly, QRC Anderson testified that he considered the employee to be regularly employed as a real estate agent at the time of his work injury.
Determination of whether an employee was “regularly employed” is a question of fact and must be affirmed if supported by substantial evidence. See, e.g., Hormann v. Evangelical Lutheran Good Samaritan Ctr., slip op. (W.C.C.A. Oct. 20, 1998); Freeney v. Minnesota Arena Football, slip op. (W.C.C.A. Oct. 20, 1998); Brown v. Boxers Grill & Party Pub, slip op. (W.C.C.A. Mar. 31, 1998). Substantial evidence, in the form of the employee’s testimony and commission records, support the judge’s decision that the employee was regularly employed as a real estate agent at the time of his injury, and we therefore affirm that finding. While the employer objects to the inclusion of any earnings from real estate sales in the employee’s average weekly wage, they raise no objection, in their brief, to the judge’s method of calculating that wage. Accordingly, we affirm the judge’s finding as to average weekly wage.
2. Termination of Employment with Employer
The employer contends that the employee is not entitled to temporary partial disability benefits because he voluntarily terminated his employment with the employer. We are not persuaded.
The employer cites Mayer v. Hormal Foods Corp., slip. op. (W.C.C.A., Apr. 18, 2001) in support of its position. In Mayer, however, this court noted that the reason for the employee’s termination, standing alone, was not determinative of the employee’s entitlement to temporary partial disability benefits.
In the instant case, the record contains no evidence to contradict the employee’s testimony that his supervisor told him that he should resign if he could not perform his pre-injury job. In addition, the employee’s treating doctor and the independent medical examiner were in agreement that the employee could not perform his pre-injury job. The employee did what he was told by his supervisor to do. There is no evidence that the employee terminated his position with the employer for reasons unrelated to his work injury. The judge’s finding as to the reason for the employee’s termination is affirmed. More importantly, “[v]oluntary termination . . . [does] not preclude a claim for benefits upon proof of wage loss attributable to the disability.” Fielding v. Geo. A. Hormal & Co., 439 N.W.2d 12, 15, 41 W.C.D. 942, 945 (Minn. 1989).
3. Temporary Partial Disability
In order to be entitled to temporary partial disability benefits, an employee must establish
1) A work-related injury resulting in disability;
2) A loss of earning capacity causally related to the work-related disability;
3) That the employee is able to work subject to the disability; and
4) An actual loss of earning capacity.
Krotzer v. Browning-Ferris,, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990), Dorn v. A. J. Cromy Constr., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976).
The employer contends that the employee is not entitled to temporary partial disability benefits because he has no loss of earning capacity causally related to the disability. We are unpersuaded.
The employee acknowledged that his ability to sell real estate was not affected by his work injury. The employee’s ability to perform his pre-injury job with the employer, however, has been affected. Both his treating doctor and the independent medical examiner agree that the employee cannot return to that job. In addition, both doctors have recommended lifting, bending, and twisting restrictions that the employee did not have prior to the work injury.
QRC Anderson testified that the employee sustained an actual reduction in his earning capacity as a result of his work injury. He specifically pointed to current restrictions that prevent the employee from performing jobs that require “a fair amount of physical exertion.” Mr. Anderson testified “those type of jobs that require more physical exertion are the jobs that typically pay a little bit more” and that the employee’s restrictions reduce the number of jobs for which the employee would otherwise be qualified. Substantial evidence therefore supports the judge’s determination that the employee has sustained a reduction in earning capacity as a result of his work injury and is entitled to temporary partial disability benefits.
 The employee testified that, from January of 2000 to December of 2008, he worked as an independent contractor with RE/MAX, paying RE/MAX $259 per month “to say you work for RE/MAX” and also a monthly fee for an office. In return, he was entitled to keep 100% of any commissions that he generated.
 His real estate earnings in 2007 had dropped to $35,312.40.
 A May 1, 2008, office note of Dr. Johnson indicates that the employee was seen that day with “another suture that spit from the lower most incision. . . . He has had little stitch abscesses from his other two incisions and now the incision down in the suprapubic region is draining.”
 It would seem unlikely, if not impossible, that a house would sell and close in a seven-day period.
 The judge used a 52-week average rather than a 26-week average, resulting in an average weekly wage of $590.69 from real estate work.
 In fact, his earnings from real estate in 2008 were slightly higher than his earnings from real estate in 2007.
 While the employer appealed from the judge’s findings that rehabilitation services provided were reasonable and appropriate and that the employee continued to be a qualified employee for rehabilitation purposes, those issues were not briefed. Issues raised in the notice of appeal but not briefed are deemed waived and will not be decided by this court. Minn. R. 9800.0900, subp. 2.