CARMEN YVONNE, Employee/Appellant, v. SUPER ONE FOODS, SELF-INSURED/RTW, INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 28, 2010
TEMPORARY PARTIAL DISABLITY. Parson v. Holman Erection Co., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988), implicitly requires an employee to have some earnings to establish entitlement to temporary partial benefits. Where the employee had originally worked on a full-time basis but was off work for approximately 2.5 weeks due to lack of work, with no further work scheduled, and where the employee resumed working once additional work was made available to her by her employer, the employee was not entitled to payment of temporary partial disability benefits for the period she was off work.
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Where the employee had originally worked on a full time basis, and was temporarily off work but later resumed work on a limited part-time basis, the employee’s part-time earnings were too insubstantial to establish entitlement to temporary partial benefits. The compensation judge’s denial of temporary partial disability benefits is affirmed.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul Park, MN, for the Appellant. Joseph J. Mihalek, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Respondent.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge’s denial of her claim for temporary partial disability benefits. We affirm.
In 1996, Ms. Carmen Yvonne, the employee, began working in the bakery at the Hibbing Super One Grocery Store. She transferred two years later to the employer’s meat department, where she worked full time as a meat wrapper. On May 3, 2002, she sustained an admitted low back injury while loading packages of meat. At the time of her injury, the employee was 45 years old, and earned a weekly wage of $637.60.
The employee initially sought chiropractic treatment for her low back pain. Following conservative treatment, and at her chiropractor’s referral, the employee consulted a neurosurgeon, Dr. Richard Freeman, in July 2002. Based on MRI scans that showed a significant central disc herniation at the L4-5 level with secondary stenosis, Dr. Freeman recommended and then performed surgery in early 2003, in the nature of a transforaminal discectomy on the left at the L4-5 level. Within a few months the employee also underwent a L4-5 laminectomy with a left L4-5 discectomy.
By late August 2003, the employee reported an improvement in her symptoms following her surgeries, but still noted back pain after a long period of sitting or standing, as well as some numbness and pain in her left leg. By October 2003, her treating physician released the employee to return to sedentary work on a part-time basis. At that point, however, the employer had no work available within her restrictions.
The employer has paid temporary total and temporary partial disability benefits to the employee since her injury, eventually paying her temporary total disability benefits through November 12, 2004, when her statutory entitlement to 104 weeks of temporary total disability benefits expired. In addition, the employer has paid benefits based upon a total rating of 16% permanent partial disability of the whole body, and has provided statutory rehabilitation assistance to the employee.
In December 2004, the employee’s QRC filed a rehabilitation request, seeking approval of a retraining plan for a four-year college degree program to attain a Bachelor of Science degree in Applied Psychology, with a goal of working in the field of social work. The employee earlier had attended a junior college for two years; the proposed retraining plan included course work at Hibbing Community College, Arrowhead University Consortium in Hibbing, and Bemidji State University. The employer disputed the appropriateness of that retraining plan, contending that it was premature. The employer argued that since the employee was not yet at MMI and had temporary work restrictions, any consideration of retraining should be delayed until after she had reached MMI and had been released for full-time work within permanent restrictions.
By December 2004, while litigation was pending on the employee’s rehabilitation request and while the employer had no light-duty work available for the employee, she located a part-time job north of Nashwauk, Minnesota, approximately 11-12 miles from her home. She began working as a personal companion assistant for Life’s Companion PCA, assisting an 86-year-old woman with various light housekeeping chores, including dishwashing, grocery shopping, laundry, and telephoning. She worked ten hours each week at that job, earning $9.00 per hour. The employee later began a second job as a kennel assistant at an animal humane shelter, working twenty hours each week at an hourly rate of $5.40. She eventually earned a combined total of $198.00 per week between her two jobs.
An evidentiary hearing was held in 2005 to address the employee’s request for retraining. Following that hearing, a compensation judge concluded that the proposed retraining plan was reasonable and appropriate, that the social service work for which the employee would study was within her physical restrictions, that the positions offered by the employer in 2005 were neither physically nor economically suitable for the employee, and that with the completion of the proposed retraining plan, the employee would be able to obtain an economic status as close as possible to that which she would have enjoyed but for her work injury. The compensation judge concluded that a retraining program was not premature, because the employee’s low back condition had seemingly reached a plateau, and that any marginal improvement in the future would not remove her limitations on standing. The compensation judge awarded the employee retraining costs, including weekly compensation benefits, pursuant to the statute. The employer appealed from that award. On appeal, this court affirmed the retraining award. Yvonne v. Super One Foods, No. WC05-296 (W.C.C.A. June 20, 2006).
The employee commenced her training, taking classes at Hibbing Community College in the fall of 2006, and attending college through the summer session of 2009. She completed 96 of the 128 credits needed for her degree during 147 weeks of attendance. The employee exhausted the 156 weeks of weekly retraining wage loss benefits allowed by statute, however, and for financial reasons she has not attended any further schooling. She testified that it is possible that she may return to school to finish the retraining program.
On August 17, 2009, the employer filed a notice of intention to discontinue (NOID) the employee’s weekly wage loss retraining benefits on the basis of the exhaustion of her 156 weeks of benefits available under the statute. On August 24, 2009, the employee returned to work on a full-time basis for Life’s Companion PCA, where she again provided home care for the client she had assisted in 2004 and 2005. By administrative decision and order dated September 17, 2009, the employer was allowed to discontinue the weekly retraining benefits and was ordered to pay temporary partial disability benefits based upon the employee’s full-time earnings at Life’s Companion PCA.
During her first two-week pay period as a care provider, the employee worked 83 hours, followed by 55 hours in her second two-week period. The employer commenced paying temporary partial disability benefits to the employee based upon those wages. The employee’s work hours were reduced by mid-September, however, following the death of the client for whom she was providing care. Once a new client was assigned to the employee, and while Life’s Companion PCA sought out additional clients for her, the employee’s work was limited to only 11 hours in a 2-week period, which provided a weekly wage of $60.50. The employee submitted her verification of those reduced wages to the employer.
On November 13, 2009, the employer filed another NOID, seeking to discontinue temporary partial disability benefits on the basis that the employee’s reduced wages were not causally related to her work-related disability but rather were due to lack of available work. The employer contended that the employee’s earnings were sporadic and insubstantial and did not qualify as gainful employment. By administrative order, a compensation judge allowed the discontinuance of benefits. The employee objected to the discontinuance of temporary partial disability benefits and requested a formal hearing on the matter.
Commencing on November 23, 2009, the employee began providing foster care for her five-year-old grandson for which she was paid by Itasca County a maintenance fee of $20.57 per day. She has continued to seek additional employment to secure more income, and has done so, in part, with the assistance of her QRC. The employee’s goal is to return to full-time employment.
The discontinuance issue was addressed at an evidentiary hearing on March 2, 2010. At the hearing, three separate periods of benefits were addressed: (1) The period from September 17 until October 6, 2010, when the employee was not working, due to the death of her personal care client; (2) from October 6 through November 22, 2010, when the employee worked solely for Life’s Companion PCA on a part-time basis, and (3) from approximately November 23, 2009, through the date of the hearing, when the employee worked for Life’s Companion PCA and also received maintenance fees from Itasca County for foster care of her five-year-old grandson.
In his findings and order served and filed March 26, 2010, Compensation Judge Jerome Arnold denied the employee’s claim for temporary partial disability benefits. He first concluded that from September 17 until October 6, 2009, the employee was not working, and therefore was not entitled to payment of temporary partial disability benefits. See, Parson v. Holman Erection Co., Inc., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988). The compensation judge also concluded that the part-time wages the employee earned from and after October 6, 2009, while working 5.5 hours per week, were too insubstantial to constitute gainful employment.
In addition, the compensation judge addressed the fee paid to the employee for her provision of foster case for her grandson. He determined that the receipt of such maintenance fee did not represent income or earnings on which temporary partial disability benefits could be based. The compensation judge therefore denied the employee’s request for temporary partial disability benefits in its entirety. The employee appeals.
The employee has appealed the findings that she is not entitled to temporary partial disability benefits from September 17, 2009, until October 6, 2009, because she was not working, and from October 6, 2009, through the hearing date because her hours and earnings were too insubstantial to constitute gainful employment. To demonstrate entitlement to temporary partial disability (TPD) 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/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). 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).
Once an employee has returned to work and is earning wages, the employee’s actual post-injury earnings are presumed to be an accurate reflection of the employee’s current earning capacity. Roberts v. Motor Cargo, Inc., 104 N.W.2d 546, 21 W.C.D. 214 (Minn. 1960). This presumption may, however, be rebutted by evidence which establishes the employee’s post-injury earnings are not an accurate reflection of the employee’s earning capacity. Mitchell v. White Castle Systems, Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980). The employer argues that the employee established her post-injury earning capacity of at least $456.50, which she earned while working in August and early September 2009, and that any diminution in her earnings and earning capacity thereafter was unrelated to her work injury.
Benefit Claim from September 17 through October 5, 2009
The employee began working for Life’s Companion PCA in August 2009. She was temporarily off work from September 17, 2009, following the death of her personal care client, until she resumed work on October 6, 2009. She argues, however, that she remained employed during that temporary hiatus in work and remained entitled to TPD benefits during that brief period of time. The employee argues that it would have been impractical for her to secure other employment without first knowing the needs of her future personal care clients, and that it would be reasonable for the court to impute wages for that temporary hiatus in income, citing to Jasnoch v. Schwab Co., 48 W.C.D. 139, 495 N.W.2d 204 (Minn. 1993) (a school employee was entitled to TPD during short unpaid holiday breaks where employment elsewhere would be impractical and where the parties stipulated that the employee had a continuing employment relationship during the time period in question).
The employer, on the other hand, argues that the circumstances in Jasnoch are distinguishable and that the employee’s time off work in September and October was not a “temporary break” from employment nor was it attributable to her work injury but resulted instead to a lack of work available from Life’s Companion PCA. The compensation judge agreed and concluded that the employee’s claim of imputed wages on the basis of the Jasnoch decision was not applicable to the facts of this case.
We agree. In this case, the employee was not on a short holiday break with work for the same employer scheduled in advance to resume within a week or a day, as was the case in Janosch. The employee was not working from September 17 through October 5, 2009, and therefore is not entitled to payment of temporary partial disability benefits during that period of time. See Parson v. Holman Erection Co., Inc., 428 N.W.2d 72 (Minn. 1988).
Benefit Claim from October 6, 2009, until the Hearing on March 2, 2010
The compensation judge concluded that the employee’s earnings from her part-time position as a caregiver between October 6, 2009, and the hearing on March 2, 2010, were “too insubstantial under the totality of circumstances to constitute gainful employment,” and therefore do not justify payment of TPD benefits. The judge determined that the “employee’s employment situation with Life’s Companion PCA does not justify a continuation of temporary partial disability benefits.” The employee appeals, arguing that she is entitled to TPD benefits based upon her part-time earnings. She contends that as a result of her back injury she is limited in the amount of standing and sitting she can tolerate, and therefore has had difficulty in finding additional employment. She remains committed to finding additional work to supplement her income. Relying on DeNardo v. Divine Redeemer Mem'l Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626 (Minn. 1990), the employee argues that because she has been able to find only part-time employment, her current earnings reflect her diminished earning capacity and qualify her for receipt of temporary partial disability benefits.
The employer argues that the employee’s current position is not gainful employment and results in an insubstantial income. To be entitled to temporary partial disability benefits, an employee must be gainfully employed, that is, the employee must show something more than “sporadic employment resulting in an insubstantial income.” See Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 134, 24 W.C.D. 290, 295 (1967); Hubbell v. Northwoods Panelboard, 45 W.C.D. 515 (W.C.C.A. 1991). We note that “[w]hat constitutes sporadic employment resulting in an insubstantial income is a factual issue, the resolution of which depends not solely on the amount of income earned or the number of hours worked.” Hildebrandt v. City of St. Louis Park, No. WC04-162 (W.C.C.A. Sept. 13, 2004). When evaluating an employee’s claim for temporary partial disability benefits, a compensation judge may consider such factors as the number of hours the employee worked during a pay period, the salary or hourly wage earned, the reason the employee worked less than full-time, the number of hours available with the employer, the nature of the employee’s activities, the facts and circumstances surrounding the employment, and any restrictions on the employee’s work activities. See Stevens v. S.T. Servs., slip op. (W.C.C.A. Nov. 14, 1991). As outlined in his memorandum, the compensation judge considered such factors, and explained that “[i]n denying the employee’s claim based upon her earnings at Life’s Companion PCA, the Court finds employee’s work of 5.5 hours per week from which her earnings flow is not substantial employment when taken with her ability to work full-time as she testified at hearing.” (Memo., p. 4.)
It is our function to determine whether “the findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). The question here is whether the record supports the compensation judge’s denial of temporary partial disability benefits.
We conclude that the record supports the compensation judge’s determination that the employee’s wages earned between October 6, 2009, and the hearing on March 2, 2010, were simply too insubstantial to constitute gainful employment and to establish entitlement to temporary partial disability benefits. See Johnson v. Laraway Roofing, No. WC05-109 (W.C.C.A. Sept. 22, 2005) (this court reversed an award of temporary partial disability benefits based on weekly wages of $20.00, $21.47, and $50.07 earned during a three-month period as too insubstantial to establish entitlement to temporary partial disability benefits); see also Stack v. City of Blaine, slip op. (W.C.C.A. Mar. 31, 1992); Kosloske v. Harmon Glass Co., slip op. (W.C.C.A., July 13, 1991). We therefore affirm the denial of temporary partial disability benefits.
 The employer at the time of the employee’s injury was Miner’s, Inc., d/b/a Super One Foods.
 The employee originally appealed from the compensation judge’s finding that the receipt of a maintenance fee for provision of foster care did not represent income or earnings on which temporary partial disability benefits could be based. The employee did not include an argument in her appellate brief concerning that finding, other than referring to the foster care fee to support her argument that she diligently sought full-time employment and augmented her part-time income through foster care work. We therefore have not considered that issue on appeal. 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.