JODI M. EIKE, Employee, v. FAIRVIEW RIDGES HOSP., SELF-INSURED, Employer-Insurer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 29, 2011
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where an employee with work restrictions has looked for appropriate work under the direction of her QRC but has been unable to find employment, substantial evidence supports the compensation judge’s denial of the employer’s petition to discontinue temporary total disability benefits.
Determined by: Stofferahn, J., Pederson, J., and Milun, C.J.
Compensation Judge: Jeanne E. Knight
Attorneys: Stephen R. Daly, Kueppers, Kronschnabel & Daly, St. Paul, MN, for the Respondent. Gregory G. Heacox, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellant.
DAVID A. STOFFERAHN, Judge
The self-insured employer petitioned to discontinue temporary total disability benefits, alleging the employee did not have a loss of earning capacity related to her work injury. The compensation judge denied the petition and the employer appeals. We affirm.
Jodi Eike was employed by Fairview Ridges Hospital as a registered nurse [R.N.] in the Emergency Room and worked 12 hour shifts two or three days a week in that position. On February 21, 2010, she sustained an admitted injury to her low back when she and a coworker were attempting to move a patient.
The employee initially treated with her family doctor, Dr. Thomas Nordahl. Dr. Nordahl referred her to Midwest Spine Institute, where she saw Dr. Stefano Sinicropi on May 4, 2010. Previous evaluations and testing, including an MRI, showed an L5-S1 disc herniation with S1 nerve root deviation. Dr. Sinicropi agreed with that diagnosis and recommended “minimally invasive decompressive discectomy L5-S1 left with annular repair.”
Dr. Sinicropi performed the surgery on June 17, 2010. When the employee returned to see him on June 30, she reported that she was “very, very happy with the results of her pain.” Dr. Sinicropi anticipated releasing her to full-time work in four weeks. On August 3, Dr. Sinicropi noted the employee had no back pain and the exam was “completely unremarkable.” He did not release her to work at that point because she was withdrawing from the use of narcotic medication.
On September 1, 2010, after evaluation of the employee, Dr. Sinicropi released her to work with an 80-pound lifting restriction. The history taken on that date reflected “some residual symptoms when she is very, very active, but her leg pain is completely resolved.” In a workability form dated September 30, Dr. Sinicropi changed the restrictions to 50-pound lifting and no work for more than eight hours a day. In November, Dr. Sinicropi recommended a functional capacities evaluation [FCE]. The FCE was denied by the employer.
The employer advised the employee in a letter dated August 6, 2010, that her position as an emergency room R.N. had been filled but that she would be placed on a leave of absence. On September 10, the employee was advised that her employment with Fairview Health Services was terminated as of September 5, 2010. The employer has never offered the employee any other employment.
The employee began working with QRC Stan Sizen in May 2010 and a Rehabilitation Plan was filed in June 2010 which called for the employee to return to work with Fairview. After the employee was terminated by Fairview, the rehabilitation plan was modified to call for job search as a R.N. with other employers.
The employee was evaluated by Dr. Mark Friedland on behalf of the employer on November 30, 2010. Dr. Friedland agreed with the diagnosis and treatment provided by Dr. Sinicropi. It was Dr. Friedland’s opinion that the employee should be restricted from lifting more than 80 pounds and was able to work “reasonable” overtime. He felt no further treatment was necessary, other than continuation of her “independent walking and aerobic conditioning program.”
David Berdahl was hired by the employer to perform a record review to evaluate the employee’s vocational status. His opinion that employment as a R.N. required lifting up to 50 pounds was based in part, on job descriptions he reviewed from a number of health care providers and other companies who hire R.N.s. He concluded that the employee had not suffered a loss of earning capacity as a result of her work injury since she continued to be able to be employed as a R.N.
The employer filed a Notice of Intention to Discontinue Compensation [NOID] on September 2, 2010, seeking to discontinue temporary total disability benefits, alleging that the release to return to work by Dr. Sinicropi with an 80-pound lifting restriction enabled the employee to return to her job at Fairview and also allowed her to work as a R.N. with other employers. An administrative conference was held on October 4, 2010, and the NOID was denied. The employer then filed a petition to discontinue temporary total disability benefits.
The hearing on the employer’s petition was held on January 7, 2011.
QRC Sizen testified by deposition. It was his opinion that the employee was not able to access all of the jobs that had been available to her before the work injury. He stated that the employee was limited in the scope of the R.N. jobs that she could do because of the 50-pound lifting restriction and the restriction of not working more than eight hours per day.
The employee was the only witness at the hearing. She testified that she generally had what she described as an ache in her low back but with activity had more severe pain that would go to her buttocks and the back of her thighs. She stated she was applying for R.N. jobs in the Twin Cities area, with most job contacts and applications being made on the internet. As of the date of hearing, she had not found a job.
In her decision issued February 4, 2011. The compensation judge determined that:
11. While the employee has restrictions on her activities, she is able to meet the job requirements of Twin Cities hospitals for a registered nurse.
12. The employee has no loss of earning capacity as a result of her work injury.
13. The employee’s disability does not impact her employability.
14. Despite her restrictions, the employee was not precluded from her usual and customary occupation as a registered nurse.
The compensation judge also determined that “the concept of earning capacity is not related to temporary total disability; rather, it is related to claims for temporary partial disability.” The compensation judge denied the employer’s petition to discontinue benefits.
The employer appeals.
“The concept of temporary total disability is primarily dependent upon the employee’s ability to find and hold a job, not his physical condition.” Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 134, 24 W.C.D. 290, 295 (1967). “The injured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.” Redgate v. Sroga Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). However, if an employee has no restrictions, there is no disability and the employee is not entitled to wage loss benefits. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).
The evidence establishes that the employee has physical restrictions as the result of her work injury. The employee no longer works her pre-injury job and the compensation judge found the employee has engaged in a diligent job search under the direction of her QRC but has found no employment. Under the case law cited above, this would seem to entitle the employee to temporary total disability benefits.
The employer argues, however, that there is no nexus or causal relationship between the employee’s injury and the current unemployment and that the employee has not sustained a loss of earning capacity related to the work injury.
As support for this argument, the employer contends that despite her injury, the employee would be able to perform the job she held at Fairview at the time of her injury. The question of her ability to do her pre-injury job is irrelevant; that job no longer exists for the employee. The employer terminated the employee and has not offered any other job to the employee. In previous decisions, this court has held that a job that is no longer available for the employee is not evidence of the employee’s earning capacity. Skelley v. Lucent Techs., 66 W.C.D. 379 (W.C.C.A. 2006); Tottenham v. Eaton Shar-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).
We explained the rationale for this holding in Serra v. Hanna Mining Co., 65 W.C.D. 532, 597 (W.C.C.A. 2005).
An employee’s earning capacity depends directly on the employee’s value in the labor market in light of his age, experience, disabilities and restrictions. To impute an earning capacity in the absence of evidence establishing that a job affording the imputed level of compensation is actually available is to essentially deny the employee the possibility of proving a causal relationship between subsequent demonstrated wage loss and the employee’s disability.
Since employment at Fairview is no longer available to the employee, her purported ability to perform her pre-injury job is irrelevant to the issue of her claimed temporary total disability.
In its argument, the employer contends that the lack of causal relationship between the employee’s injury and her unemployment is demonstrated by the fact that the employee is able to perform all of the jobs for which she has applied and she has not been denied employment because of her injury. According to the employer, this shows the employee is fully capable of working as a R.N. We are not persuaded.
First of all, it is not completely accurate to say that the employee has not been denied employment because of her work injury. The employee and her QRC have not been provided any reason by potential employers as to why the employee has not been offered employment. Few, if any, potential employers will tell an applicant that they are not being considered for a job because of a work-related disability. To assume that the employee’s work injury plays no role in her inability to find a job is speculation. Second, the record reflects that, at present at least, the employee’s job search is limited to R.N. jobs which she is physically capable of performing. One would reasonably expect that, in an appropriate job search directed by a QRC, the job sought by an injured worker should be physically appropriate. However, the employee’s employment is not necessarily limited to being an R.N. If her job search continues to be unsuccessful, the scope of her job search may well change and broaden. In that circumstance, the employee’s physical restrictions would limit her participation in the labor market to an extent not ascertainable at the present time. A conclusion that the employee no longer has a loss of earning capacity based only on the employee’s current job search is simply overbroad.
At the hearing, the employer presented vocational evidence in a report from David Berdahl. Mr. Berdahl’s opinion was that the employee did not have a loss of earning capacity related to her work injury. His opinion was in large part based on a review of postings for R.N. positions on the internet and his conclusion that the employee was capable of performing these jobs.
Earning capacity is not simply a theoretical concept. We have said previously that “testimony as to hypothetical positions paying hypothetical wages will not act to rebut the presumption of actual earnings raised by actual wages.” Passaforo v. Blount Constr. Co., 49 W.C.D. 535, 544 (W.C.C.A. 1993). Similarly, evidence of hypothetical positions in the labor market paying hypothetical wages does not defeat an employee’s claim for temporary total disability. We reiterate the holding in Redgate; temporary total disability is established by a diligent but unsuccessful job search to find employment within the employee’s restrictions.
Ms. Eike has restrictions due to her work injury, she has looked for work within those restrictions as directed by her QRC, and she has not been able to find such work. Substantial evidence supports the compensation judge’s conclusion that the employee remains entitled to temporary total disability benefits.
The decision of the compensation judge is affirmed.
 We also feel compelled to note that despite the alleged suitability of her pre-injury job at Fairview, the employee was injured in that job on February 21, 2010, while assisting to move a patient, a duty which the employee testified was not unusual, and which required lifting far in excess of 50 or even 80 pounds.