ROBERT J. HYKE, Employee, v. CEMSTONE PRODS. CO. and ZURICH/RISK ENTER. MGMT., LTD., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 12, 2009
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s finding that the employee’s loss of earning capacity was causally related to his work injury and was not due to economic conditions only.
TEMPORARY PARTIAL DISABILITY - CALCULATION. There is no statutory basis for subtracting additional commuting costs from the employee’s wages as part of the temporary partial disability benefit calculation.
REHABILITATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s change of job placement vendor where his previous assistance was ineffective.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for the Respondent. Leslie M. Altman and Joshua T. Brinkman, Littler Mendelson, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge’s award of temporary partial disability benefits, arguing that the employee’s loss of earning capacity was not related to his work injury. The employee cross-appeals the denial of his claim for underpayment of temporary partial disability benefits and the change of job placement vendor. We affirm.
On August 10, 2006, Robert Hyke, the employee, sustained a work-related neck injury while working as a cement truck driver for Cemstone Products Company, the employer, which was insured for workers’ compensation liability by Zurich North America Insurance Company, the insurer. The employer had facilities at multiple locations, and the employee worked out of the Carlton, Minnesota, location. The employee’s position included driving, washing trucks, climbing ladders on the trucks to carry supplies, attaching and detaching chutes, pouring concrete, pushing concrete down chutes, and scraping the chutes to clean them.
On August 10, 2006, the employee noted left shoulder and left scapula symptoms after operating a jack hammer on a floor at the Cemstone plant for three to four hours. Within a few days, and after riding his motorcycle, he also noted neck pain. On August 14, 2006, he consulted Dr. Randy Rice, his family physician at Gateway Family Health Clinic, who diagnosed upper back pain with radiation, and placed the employee on light-duty restrictions which precluded the employee from returning to his pre-injury position.
At the time of his injury the employee was paid $16.70 per hour, and earned a weekly wage of $734.82. The employer and insurer admitted liability and began paying temporary total disability benefits and medical expenses; they ultimately paid temporary total disability (TTD) benefits from August 14, 2006, through February 17, 2007, and also from September 1, 2007, through September 11, 2007. They also paid temporary partial disability benefits (TPD) from February 18, 2007, through August 31, 2007; permanent partial disability benefits based upon a whole body impairment rating of seven percent; and medical expenses. The employer and insurer also provided statutory rehabilitation assistance to the employee.
On September 6, 2006, at the request of the employer and insurer, the employee was evaluated by orthopedist Dr. Gary Wyard. He diagnosed myofascial pain in the scapular margin, which he related to the employee’s work activities and to an aggravation caused by his motorcycle riding. Dr. Wyard advised that the employee was capable of working, and recommended a 50 pound lifting restriction, flexibility in sitting and standing, and avoiding repetitive or prolonged stooping, squatting, bending, twisting, or lifting. For treatment, Dr. Wyard recommended anti-inflammatory medication and a home stretching program, and anticipated that the employee would reach maximum medical improvement (MMI) within one month.
Because the employer had no work available within his restrictions, the employee remained off work. In October 2006, the employee underwent a rehabilitation consultation with John Witzke, qualified rehabilitation consultant (QRC), who concluded the employee was eligible for rehabilitation services. By agreement of the parties, the goal of the rehabilitation plan was to return the employee to work for the employer. The parties also agreed that the plan would include job placement and job development services in the event that the employee remained unable to return to work with the employer. A job placement plan and agreement (JPPA) in effect from November 28, 2006, through January 31, 2007, and extended thereafter, specified that the job placement vendor, Tyler Witzke, would perform job placement assistance, including providing job leads to the employee.
The employee received ongoing medical treatment, through his treating physician, Dr. Rice, and through neurological and neurosurgical specialists in the Duluth, Minnesota, area. In November, the employee underwent an MRI scan of the cervical spine and an EMG; the MRI scan showed disc protrusions at the C4-5 and C7 levels; the EMG was interpreted to strongly suggest severe grade subacute C7 radiculopathy.
On January 25, 2007, Dr. Rice recommended continued restrictions of no lifting over 25 pounds if the employee’s work tasks required his left elbow to be held away from his body. Dr. Rice allowed the employee to lift greater weights with his left arm as long as his elbow remained at his side. He also recommended continued occupational therapy.
On February 9, 2007, the employer offered the employee a temporary light duty janitorial/maintenance position, within his restrictions, at a different location in Isle, Minnesota. This new job paid the same hourly rate as the employee’s pre-injury position, but was located 62 miles from the employee’s home and 50 miles farther than his previous commute to work to the employer’s Carlton location. The employee requested reimbursement from the employer for the extra mileage incurred for traveling to Isle; the employer and insurer denied the request. The employee accepted the maintenance position, and received temporary partial disability benefits while working at this position when he worked fewer hours per week than his pre-injury position. In March 2007, the employee briefly returned to his pre-injury truck-driving position but could not continue because of his neck pain. He then began to alternate between his light-duty position and the truck-driving position.
On June 20, 2007, the employee was again evaluated by Dr. Wyard, who diagnosed cervical degenerative disc disease with radiculitis, and opined that the employee was “[e]ssentially neurologically intact with history of weak triceps.” He again concluded that the employee’s condition was related to his injury on August 10, 2006. Dr. Wyard stated that the treatment to date, including an epidural injection in February 2007, had been reasonable and necessary. He also opined that the employee did not need any specific additional treatment, referring in his report to Dr. William Himango’s conclusion in May 2007 that the employee was not a surgical candidate at the present time. Dr. Wyard stated that
I feel the injury of August 10, 2006, was an aggravation of a preexisting underlying condition. Mr. Hyke has ongoing subjective complaints but minimal objective findings at this time. He has actually done quite well over the past year. Nonetheless, he has not returned to his condition prior to the aggravation and in my opinion, he had a permanent injury on August 10, 2006.
Dr. Wyard assigned permanent work restrictions of avoiding placement of his neck in an awkward or unnatural position, and no use of his arms above chest level on a prolonged or repetitive basis. He concluded that the employee had reached MMI from his injury and had sustained a seven percent permanent partial disability to the body as a whole as a result of his neck injury. In a letter dated July 2, 2007, the employer served the employee with notice of MMI.
In a letter to the employer and insurer dated August 22, 2007, Dr. Rice recommended permanent restrictions for the employee consistent with those assigned by Dr. Wyard, and also recommended that the employee avoid using a jackhammer. Dr. Rice also advised the employer and insurer that he did not consider the employee to have reached MMI “since he has not return[ed] to the full level of activity recommended.” Dr. Rice stated that “The patient overall seems to have done well, is motivated to return to his prior work, and we feel he should be evaluated once back in that level of duty before final determination of MMI.”
On approximately September 1, 2007, the employee and other drivers were laid off due to lack of work since the Carlton plant would be closing for the season, but were advised that the employer would call them when work became available. By that time, the employee evidently had resumed his full-time work as a truck driver for the employer.
After several days with no offers of work, the employee contacted Duluth Ready Mix on his own to apply for a truck driving position, he was hired and began working full time without any job modifications. The employee testified that he did not advise Duluth Ready Mix about his work restrictions, nor did he request job modifications from that employer, because he believed he could perform the work within his restrictions. The employee testified, however, that at times he needed to work outside of his restrictions, and that “it hurt” when he did so. (Transcript 74.)
On September 13, 2007, Cemstone contacted the employee and offered him work for one day as a truck driver. The employee declined since he was by then already working full time for Duluth Ready Mix. On September 14, 2007, the employer sent the employee a letter acknowledging that the employee had another job and stating that the employee had called the employer to terminate his position with the employer. The employee responded, by letter, stating that he had not terminated his position with the employer and asking that the employer call him when it could provide him with work or when the Carlton plant reopened.
Following his layoff from the employer in 2007, the employee was offered a position at a lumberyard, which he declined because he thought it was outside of Dr. Rice’s lifting restrictions. The employee’s QRC did not attempt to see if this position could be modified to fit the employee’s restrictions, explaining that shortly after the employee was offered this position, he instead began working for Duluth Ready Mix. On November 5, 2007, the employee was seen by Dr. Rice, who noted that the employee seemed “to be doing better,” that he had reached MMI, and that the work restrictions Dr. Rice had assigned earlier were permanent. Dr. Rice also recommended that the employee follow one additional restriction: avoiding lifting any supplies while climbing truck ladders in order to keep his hands free. Dr. Rice suggested that the employee find an alternative for ascending the truck with a load, for example, using a backpack or pulling materials up with a rope. In a letter dated November 28, 2007, the employer again served the employee with notice of MMI, on the basis of Dr. Rice’s opinion.
In November 2007, the employee was laid off by Duluth Ready Mix due to lack of available work. The employer and insurer asked the employee’s QRC to change placement vendors; when he refused to change vendors, they filed a rehabilitation request to change placement vendors to Cathy Birch. At that point, the QRC stopped providing job placement services. The employee later found a part-time job on his own, plowing snow for Premier Snowplowing, which he performed until January 10, 2008. On January 19, 2008, the employee began a job search on his own; he testified that he looked at 32 jobs and made 22 contacts with businesses who had job openings through February 27, 2008. The employee also contacted the employer but was told there was no work available. On March 1, 2008, the employee began working full time at a Wal-Mart store in its automotive department, earning $9.70 per hour.
On March 27, 2008, at the request of the employer and insurer, the employee underwent a vocational evaluation, including testing, with QRC Carol Anderson. In a report issued on April 30, 2008, following her review of the employee’s medical and rehabilitation records and following her labor market research, Ms. Anderson concluded that the employee’s wage loss was based upon “the nature of the vocation he has opted to pursue,” including the seasonal nature of his work as a cement truck driver and other factors including varying customer demand for cement work and the effect of seniority on an employee’s call-back opportunities. Ms. Anderson concluded that neither of the employee’s interim jobs (for Premier Snowplowing and Wal-Mart) were indicative of his earning capacity. Ms. Anderson noted that the employee was working at Wal-Mart while awaiting a recall from Duluth Ready Mix in the spring of 2008, and concluded that the employee did not need additional rehabilitation services, based on the premise that he would return to his pre-injury wage level once he resumed his driving and delivery work.
In December 2007, the employee filed a claim petition for temporary partial disability benefits from and after September 7, 2007, and for an underpayment of temporary partial disability benefits from February 12, 2007, through August 22, 2007. The employee contended that mileage costs for commuting to his light duty position at the employer’s Isle location should have been factored in when calculating his temporary partial disability benefits, and therefore that he had been underpaid temporary partial disability benefits.
On January 28, 2008, the employer and insurer filed a petition to discontinue temporary partial disability benefits, asserting that the employee had failed to establish that his reduced earnings represented accurately what he was capable of earning in his labor market. The claim petition and petition to discontinue were consolidated with the parties’ rehabilitation requests concerning their dispute over the assignment of a job placement vendor. On May 22, 2008, a hearing was held before a compensation judge.
In her findings and order, the compensation judge awarded temporary partial disability benefits from and after September 7, 2007, concluding that the employer and insurer had not rebutted the presumption that the employee’s actual earnings from September 7, 2007, through the date of hearing were an accurate measure of his loss of earning capacity. The compensation judge denied the employee’s claim for underpayment of temporary partial disability benefits from February 12, 2007, through August 22, 2007, a claim based on the employee’s contention that his wage was diminished by his longer commute to the Isle, Minnesota, facility. The compensation judge determined that there is no statutory provision for compensation to the employee for additional commuting expenses. The compensation judge also granted the employer and insurer’s request to change job placement vendors.
The employer and insurer appeal the award of temporary partial disability benefits, arguing that the employee’s loss of earning capacity after September 7, 2007, was due to the lack of available work and not his work injury, and that the employee’s wages do not represent his earning capacity. The employee cross-appeals the denial of his claim for underpayment of temporary partial disability benefits and the change of job placement vendor.
The employer and insurer appeal the award of temporary partial disability benefits, arguing that the employee’s loss of earning capacity after September 7, 2007, was due to economic conditions, specifically, the lack of available work in the construction industry, and not his work injury. Temporary partial disability benefits are paid based on the difference between the weekly wage of the employee at the time of the injury and the wage the employee is able to earn in the employee’s partially disabled condition. Minn. Stat. § 176.101, subd. 2. 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. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 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). The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability. Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988). An employee’s post-injury wage is presumed to be representative of the employee’s reduced earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). In appropriate circumstances, this presumption can be rebutted with evidence indicating that the employee's ability to earn is different than the post-injury wage, Patterson v. Denny's Restaurant, 42 W.C.D. 868, 874 (W.C.C.A. 1989), and that presumption may also be rebutted by evidence establishing that the reduction in the employee’s earning capacity is unrelated to the employee’s disability. Borchert v. American Spirits Graphics, 582 N.W.2d 214, 215, 58 W.C.D. 316, 318 (Minn. 1998) (loss of overtime attributable to economic conditions relative to the employer’s business).
The employer and insurer argue that they have rebutted the presumption that the employee’s post-injury wage is representative of his reduced earning capacity with evidence that the employee’s loss of earning capacity was caused by the seasonal nature of the construction industry and the lack of available work at the time that the employee was laid off from the employer, and therefore that the employee’s loss of earning capacity was not causally related to the employee’s work injury. The issue of earning capacity is factual in nature and is determined by the compensation judge as the trier of fact. Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976); Noll v. Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989); see Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987); see also Serra v. Hanna Mining Co., slip op. (W.C.C.A. Apr. 12, 2005), summarily aff’d (Minn. Aug. 23, 2005). The question for this court on appeal is whether substantial evidence supports the decision of the compensation judge.
When an appeal is taken from a compensation judge’s factual findings, this court’s review on appeal is limited to a determination of whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. § 176.421, subd. 1(3). Where the judge’s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm. 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). “Factfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though this court might disagree with them, “unless 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.” Id.
The employer and insurer argue that the employee was able to work as a cement truck driver at the time that he was laid off from his position for the employer in September 2007 and that he is still capable of working in that capacity, and therefore the employee’s wage loss after September 7, 2007, was caused by the economic conditions of the construction business. We note that termination from employment for reasons not connected to the work injury, for example as the result of a layoff as in this case, does not preclude an award of temporary partial disability benefits. See 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, 39 W.C.D. 367 (Minn. 1987); Mayer v. Hormel Foods Corp., slip op. (W.C.C.A. Apr. 18, 2001). While the employee was able to perform his pre-injury job at the time he was laid off from the employer, he was still subject to physical restrictions related to his work injury. The employer and insurer did not appeal the compensation judge’s finding that the employee was subject to physical work restrictions. The fact that the employee lost his post-injury job for reasons unrelated to his injury, as the employer and insurer contend in this case, or that he remains physically able to perform such a job, is not relevant to the question of whether the employee’s actual loss of earning capacity is causally related to the work injury. Boutto v. U. S. Steel Corp., No. WC06-288 (W.C.C.A. July 18, 2007).
In addition, the employee contacted the employer for work and was told there was no work available. A job that is no longer available to an employee is of little relevance in determining entitlement to wage loss benefits. See Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71, 78-79 (W.C.C.A. 1990). Substantial evidence supports the compensation judge’s finding that the employer and insurer had not rebutted the presumption that the employee’s actual wages were representative of his loss of earning capacity, and we affirm.
The employer and insurer also argue that the employee did not conduct a reasonable job search during the period of time when he claims entitlement to temporary partial disability benefits. While a reasonable and diligent job search is not required for an award of temporary partial disability benefits, the nature and extent of any job search is evidence which the compensation judge may consider in determining whether the employee’s wage loss was causally related to the work injury. Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995). When the employee was laid off from the employer, the employer asked the employee to report to work only if called to do so. After several days of not being called to work, the employee applied for work at Duluth Ready Mix and was hired for a full-time position. On September 13, 2007, the employer offered the employee one day of work, which the employee declined. The employer’s human resources director sent a letter indicating that the employee had voluntarily terminated his employment with the employer. The employee responded that he was willing to return to work for the employer when full-time work was available or when the Carlton facility reopened, testimony which the compensation judge accepted as credible. The compensation judge found that it was reasonable for the employee to continue working for Duluth Ready Mix on a full-time basis rather than return to work for the employer on a occasional, sporadic basis in September 2007, and also that the employee had not resigned from his job with the employer in September 2007.
After he was laid off from Duluth Ready Mix in November 2007, at the end of the construction season, the employee was denied job search assistance and began a job search on his own. He found a part-time position with Premier Snowplowing and continued to look for other work. On March 1, 2008, the employee began working part time at a Wal-Mart store in its automotive department and was working there full time as of the date of the hearing. The compensation judge noted that the employee searched for work without rehabilitation assistance and found two jobs on his own, and that his QRC opined that he had made a diligent job search. The compensation judge concluded that the employee made a diligent job search, a conclusion that was reasonable in view of all the evidence in the record, including the employee’s testimony and information and opinions provided by vocational personnel. The compensation judge did not err by determining that the employee’s wage loss was causally related to his work injury; we affirm that finding.
The employee cross-appealed the compensation judge’s denial of the employee’s claim for an underpayment of temporary partial disability benefits based upon the employee’s need to drive an additional 50 miles each way to Isle, Minnesota, where he worked for the employer in his light-duty position. The employee argued that during his previous work for the employer he had driven his own vehicle to commute to Carlton but had used company vehicles for any required travel; the employee’s light-duty position in Isle did not require him to travel while on the job. The employee argues that his temporary partial disability benefits should be based on his lost earning capacity, and that his ability to earn was significantly and negatively affected by the expense incurred for commuting to the employer’s Isle facility. He asserted that the expenses related to his extra commuting miles could be factored into the calculation of his temporary partial disability benefits by subtracting those expenses from his wages and then calculating his benefit rate based on that difference.
Although the expense the employee incurred driving from his home to the Isle location was a commuting expense, the compensation judge found merit in the employee’s argument that he had incurred an actual economic loss while commuting to Isle, Minnesota, in 2007 because his commute required an extra 100 miles per day beyond his previous commute to work. The compensation judge also noted, however, that there is no statutory basis for reimbursing the employee for additional commuting costs as part of his temporary partial disability benefit calculation, and that the claimed mileage expenses were personal and not defined as a compensable expense or benefit under the workers’ compensation statute. We agree, and affirm.
The employee also cross-appealed the compensation judge’s decision to grant the employer and insurer’s request to change job placement vendors. The initial goal of the employee’s rehabilitation plan was to return the employee to work with the date of injury employer. The placement vendor worked with the employee from October 2006 through mid-August 2007. From February 2007 through August 2007, the employee was working for the employer, but in a light-duty position. The employee’s QRC referred the employee for placement services since all parties agreed that it was not certain that the employee would be able to return to his pre-injury position as a cement truck driver. From October 2006 through mid-August 2007, the job placement vendor provided the employee with ten job leads. The compensation judge found that these services were minimal and ineffective, and granted the employer and insurer’s request to change job placement vendors.
This court has held that an employer and insurer must have a credible rationale for contending that a particular QRC or firm should not be allowed to perform the requested job placement. Seglem v. Northland Foods, 53 W.C.D. 46 (W.C.C.A. 1995) (citing Taylor v. Pine County, slip op. (W.C.C.A. Apr. 5, 1995)), summarily aff’d, (Minn. July 20, 1995). In this case, the compensation judge concluded that the placement vendor’s limited job leads and past performance provided a credible rationale for requiring the employee to change placement vendors.
The employee argues that the placement vendor’s efforts were “superfluous” to the plan of rehabilitation during this time since the rehabilitation goal was to return the employee to work for the employer and later the employee worked for the employer in a light-duty position. We disagree. The job placement vendor was assigned to provide the employee with job placement services. We realize that the employee had returned to work during the period of time when he was assigned placement services, and, as acknowledged by the compensation judge, at times during this period the employee did not necessarily need placement assistance. Whether those services would later be unnecessary, however, did not permit the vendor to provide inadequate services at the time that placement services were authorized and requested to be provided. We conclude that substantial evidence supports the compensation judge’s determination that the employer and insurer had provided a credible rationale for a change in placement vendors. The compensation judge did not err by granting the employer and insurer’s request to change job placement vendors, and we affirm.
 The record does not contain Dr. Rice’s chart note from the August 14, 2006, examination. This information is listed in Dr. Gary Wyard’s report dated September 6, 2006.
 The actual records documenting this medical treatment were not placed into evidence at the hearing. This background information is included in Dr. Wyard’s report dated June 20, 2007.
 Pursuant to Minn. R. 5223.0370, subp. 4.C.(1).
 The employee had worked for Duluth Ready Mix for approximately five years, between 2001 and 2006, immediately before working for Cemstone.
 The employer and insurer asked the employee’s QRC to change placement vendors; when he refused, they filed a rehabilitation request to change placement vendors to Cathy Birch. Placement services were suspended pending a hearing.