TODD E. PIERCE, Employee, v. CLARITY GLASS/SDB ENTERS. and AMERICAN FAMILY INS. GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 24, 2011
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Substantial evidence supports the compensation judge’s finding that the employee was entitled to temporary partial benefits where the judge properly considered all of the relevant factors in determining the employee’s earning capacity under the circumstances of this case.
Determined by: Milun, C.J., Pederson, J., and Wilson, J.
Compensation Judge: Nancy Olson
Attorneys: John P. Bailey, Bailey Law Office, Bemidji, MN, for the Respondent. Jason Schmickle, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
PATRICIA J. MILUN, Judge
The employer and insurer appeal the compensation judge’s award of temporary partial disability benefits. We affirm.
On November 14, 2007, Todd Pierce, the employee, sustained a shoulder injury while working for Clarity Glass/SDB Enterprises, the employer, which was insured for workers’ compensation liability by American Family Insurance Group. The employee was injured while he and other employees were removing a pane of glass weighing 350 pounds out of a window. On December 6, 2007, the employee was examined by his primary physician, Dr. Peter Eriksson, who diagnosed a left shoulder sprain/strain. The employer and insurer admitted liability and paid various workers’ compensation benefits, including temporary total disability benefits, medical benefits, and rehabilitation benefits.
On December 13, 2007, the employee treated again with Dr. Eriksson, who assessed decreased range of motion, pain with rotation, and weakness, and opined that the employee had likely sustained a rotator cuff tear. The employee was evaluated by an orthopedic surgeon and underwent an MRI on December 19, 2007, which indicated a partial-thickness tear of the supraspinatus, otherwise rotator cuff intact, glenohumeral degenerative changes, and a paralabral cyst along the inferior aspect of the glenoid labrum with suspicion of tear involving the anterior inferior glenoid labrum. In January 2008, the employee was treated with injections. On February 13, 2008, the employee underwent a left shoulder arthroscopic surgery, performed by Dr. Terrance Johnson, which included joint debridement, repair of an anterior labral tear, and subacromial decompression. The surgeon noted that there was significant degeneration in the glenohumeral joint with some small areas of full-thickness cartilage loss. The employee later continued physical therapy.
During a follow-up appointment on April 15, 2008, the employee was treated with a subacromial injection. On June 23, 2008, the employee consulted with Dr. Fennell, who ordered a repeat MRI which indicated a cyst and mild edema in the glenoid, and questionable cartilage thinning within the glenohumeral joint. Dr. Fennell recommended additional shoulder arthroscopy to define the extent of the cartilage damage, to determine whether there was further obstruction, and to determine whether the employee had adhesive capsulitis. On August 26, 2008, the employee underwent a second left shoulder arthroscopic surgery performed by Dr. Fennell, including debridement and chondroplasty. On November 14, 2008, the employee was evaluated by Dr. Loren Vorlicky at the employer and insurer’s request. Dr. Vorlicky opined that the employee’s condition at the time of his surgeries and his current condition were caused by his pre-existing glenohumeral arthritis, not by his work injury.
The employee worked with QRC Marsha Pereira and returned to work on April 27, 2009, working for a different employer, K.C. Flat Concrete and Bobcat Services. The employee began working part time ten to twenty hours per week at $7.00 per hour with the understanding that his hours would increase. The job was within the employee’s ten pound lifting restriction and consistent with his rehabilitation plan.
In June 2009, the employee began treating at the Mayo Clinic. At this time, the cuff lining of the shoulder had deteriorated and tests revealed osteolytic defects and an infection. Further surgery to the left shoulder was recommended. In July 2009, the employee’s wage was raised to $10.00 per hour. The parties agreed to limit the employee’s job search pending resolution of the surgery recommendations. The employee continued to work for K.C., which continued to accommodate his restrictions.
Dr. Vorlicky reviewed additional medical records and issued another report on August 4, 2009. Dr. Vorlicky opined that the proposed surgery, left shoulder arthroscopy including obtaining cultures, removal of suture anchors and possible bone grafting to prepare for a later joint replacement procedure, was reasonable but was not related to the employee’s work injury.
On September 24, 2009, the employer and insurer filed a petition to discontinue the employee’s benefits, based on Dr. Vorlicky’s reports. In an October 22, 2009, report, Dr. Fennell opined that the employee’s work injury caused the labral tear, accelerated the employee’s pre-existing condition of degenerative arthritis in the left shoulder, resulted in a permanent aggravation of that condition, and was a substantial contributing cause of the employee’s ongoing need for medical treatment. Dr. Vorlicky issued another follow-up report in October 2009, again indicating his opinion that the labral tear addressed in the employee’s surgeries was not related to the employee’s work injury. The employer and insurer also filed two notices of intention to discontinue benefits (NOIDs), one on December 22, 2009, and another on December 29, 2009. Both NOIDs were based upon the employee’s lack of job search, and therefore the parties agreed the NOIDs would be consolidated with the petition to discontinue already set for hearing. The hearing was held on January 14, 2010. In a Findings and Order served and filed January 27, 2010, the compensation judge accepted Dr. Fennell’s opinion over the opinion of Dr. Vorlicky, and found that the employee’s work injury was causally related to his need for medical treatment. The judge also found that the employee’s earnings at K.C. accurately reflected the employee’s earning capacity in his partially disabled condition with further serious surgery pending. Neither party appealed this decision.
On August 25, 2010, the employee underwent a biopsy to determine whether he had an infection in his left shoulder, which tested positive. The deterioration of the cuff lining and the infection would eventually require two more surgeries. On September 1, 2010, the first stage of shoulder replacement surgery was performed by Dr. Fennell, which involved the removal of the top end of the humerus followed by 62 days of daily intravenous treatment for the infection. The second stage of the total shoulder replacement surgery was completed on October 29, 2010. After the surgery, the employee was on intravenous antibiotics until November 11, 2010, when he was switched to oral antibiotics for about a year. The employee initially had his arm in a sling and later underwent physical therapy.
On December 6, 2010, the employer and insurer filed a notice of intention to discontinue the employee’s temporary total disability benefits based upon their calculations that the employee had been paid 106.6 weeks of temporary total disability benefits. The notice also indicated that they would continue temporary partial disability benefits if the employee found work.
On December 13, 2010, the employee was released to return to work with a restriction of one arm work only. He was totally restricted from lifting with his left arm for six weeks. With these restrictions, the employee immediately returned to work with K.C. working two hours per week earning $8.00 per hour. The employee testified that he was able to ready maintenance equipment by checking and changing oil, sharpening blades, and doing mechanic’s work.
On January 24, 2011, the employee’s hours increased to four hours per week. The employee’s QRC indicated at that time that the rehabilitation plan included medical management and vocational counseling and guidance, but that job development and placement was still temporarily suspended. While the long term goal was to have the employee secure employment with a new employer within his limitations, the short term goal at that time was to assess the employee’s physical condition. The employee continued with physical therapy and showed improvement in his range of motion and lifting ability.
The employee requested an administrative conference on the notice of intention to discontinue benefits, which was held on January 13, 2011. The judge granted the employer and insurer’s request to discontinue temporary total disability benefits, but ordered ongoing temporary partial disability benefits. The employer and insurer filed a request for formal hearing and also petitioned to discontinue temporary partial disability benefits on January 21, 2011. The employee objected, and a hearing was scheduled. By April 2011, the employee was ready to be discharged from physical therapy to an independent maintenance program. The employee still experienced left shoulder aching, increased discomfort with increased activity, and inability to raise or lower his arm without pain. After the April 7, 2011, hearing, the compensation judge rejected the employer and insurer’s argument that the employee’s earnings were too insubstantial to be considered gainful employment and denied the petition to discontinue temporary partial disability benefits. The employer and insurer appeal.
STANDARD OF REVIEW
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. 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. Findings of fact are clearly erroneous if the reviewing court, looking at the entire evidence, is left with a definite and firm conviction that a mistake has been committed. 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 the evidence or not reasonably supported by the evidence as a whole.”
The employer and insurer assert that the compensation judge’s finding that the employee is entitled to temporary partial disability compensation since December 2010 is clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. The employer and insurer further assert that the compensation judge committed an error of law by misstating or misapplying Minn. Stat. § 176.101, subd. 2, arguing that the employee’s earnings are too insubstantial to support an award of temporary partial disability benefits. We disagree with both assertions.
In order 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. 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 for weeks during which the employee worked. An employee’s actual post-injury earnings are generally presumed to be an accurate reflection of the employee’s current earning capacity. This presumption may be rebutted by evidence which proves the employee’s post-injury earnings are not an accurate reflection of the employee’s current earning capacity.
To be entitled to temporary partial disability benefits, an employee must be gainfully employed, working at something more than “sporadic employment resulting in an insubstantial income.” The employer and insurer contend that the employee’s earnings are “meager earnings” that can only be characterized as insubstantial income; and, for that reason, the earnings are insufficient to award temporary partial disability compensation. Thus, they argue the compensation judge erroneously denied the employer’s petition to discontinue temporary partial disability benefits. The employer and insurer further contend that the employee was totally disabled when he returned to work in December 2010; and that this unique case presents a “rare, and unfortunate, situation where 104 weeks of temporary total disability benefits is simply not enough.” Finally, the employer and insurer contend that “it would be an injustice to allow the employee to collect [temporary partial disability] benefits based on [these] earnings.”
This court has stated that determining “[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.” 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. The determination of earning capacity is a question of fact for the compensation judge.
Of the evidence presented, the compensation judge emphasized that the employee was not at maximum medical improvement from the work injury at the time of the hearing because of an exceptionally complicated recovery due to serious infections. The judge found this fact to be significant when she considered what the employee could earn given his current capabilities. In addition, by noting that the employee was not at maximum medical improvement, had significant restrictions, and was earning wages at a job that was not sham employment, the judge distinguished this case from prior cases cited by the employer and insurer that address the question of whether an employee’s income post-injury is a fair reflection of earning capacity during a period of time an employee is earning a low wage.
The employer and insurer argue that the employee’s earnings are less than those in similar cases where either a compensation judge or this court has found that the amount earned was too insubstantial to support a determination that the employment at issue represented gainful employment and more than sporadic employment resulting in an insubstantial income. Since determination of whether an employee is working at “sporadic employment resulting in an insubstantial income is a factual issue,” there is no minimum amount of earnings or hours worked that is required to support an award of temporary partial disability benefits. A claim for temporary partial disability compensation will not be defeated solely on the basis of the amount of the income earned or the number of hours worked. Defining gainful employment is dependent upon all the facts peculiar to each case. The amount of earnings and the number of hours worked are factors for the compensation judge to consider along with other factors including the facts and circumstances of the employment and the employee’s restrictions.
The compensation judge reviewed the evidence in the record. The employee had a substantial injury to his shoulder from which he had an extremely complicated recovery due to serious infections. Shoulder replacement surgery was performed almost three years after the date of injury. The employee exhausted his 104 weeks of entitlement to temporary total disability benefits and he was still not at maximum medical improvement. K.C. provided the employee with work within his restriction of one arm work only during a period while the employee was also engaged in extensive physical therapy.
A return to work with the pre-injury employer was not part of the rehabilitation plan and the long term goal was to secure employment with a new employer within stated limitations. The judge noted that there was no expert vocational opinion suggesting an earning capacity greater than the employee’s two to four hours of work per week. Likewise, there was no evidence that the employee could obtain a job outside of K.C. given his significant restrictions during this healing period. K.C. operates its business during all seasons of the year and is hired for lot cleaning, concrete work or landscaping jobs that change with the seasons. The compensation judge found that K.C. is not a seasonal employer and also noted that the employer and insurer did not contend that the employee’s job was sham employment. Further, the compensation judge found the employee to be credible when he testified that he intends to increase his hours as his shoulder improves and more work becomes available within his restrictions.
In conclusion, under the circumstances of this case, the compensation judge found the income earned by the employee was a fair reflection of his earning capacity during the period of time while he recovered from extensive surgery and worked two to four hours per week earning $8.00 per hour. The compensation judge properly considered all of the relevant factors to determine the employee’s earning capacity. Under the particular facts of this case, we find substantial evidence to support the compensation judge’s finding that the employee is entitled to temporary partial disability benefits as claimed. We therefore affirm the judge’s award of temporary partial disability benefits.
 Additional background information in this decision has been drawn from previous pleadings and decisions in this matter from the Office of Administrative Hearings.
 Hereinafter K.C.
 Temporary total disability benefits are limited to 104 weeks under Minn. Stat. § 176.101, subd. 1(k) (2006) (a 130 week limitation is effective for injuries occurring on or after October 1, 2008, as amended in Act of Apr. 30, 2008, ch. 250, § 3, 2008 Minn. Laws 667-68).
 Minn. Stat. § 176.421, subd. 1
 Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
 Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
 See Minn. Stat. § 176.101, subd. 2(b); see also 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).
 Minn. Stat. § 176.101, subd. 2; Parson v. Holman Erection Co., Inc., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988).
 Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976); Roberts v. Motor Cargo, Inc., 104 N.W.2d 546, 21 W.C.D. 314 (Minn. 1960).
 Mitchell v. White Castle Systems, Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980).
 See Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 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), summarily aff’d (Minn. Dec. 13, 1991).
 Appellant’s brief at 13.
 Id. at 14.
 Hildebrandt v. City of St. Louis Park, No. WC04-162 (W.C.C.A. Sept. 13, 2004).
 See Stevens v. S.T. Servs., slip op. (W.C.C.A. Nov. 14, 1991).
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), summarily aff’d (Minn. Jan. 16, 1990).
 Shepard v. Loram Maint. of Way, 70 W.C.D. 8 (W.C.C.A. 2010); Johnson v. Laraway Roofing, 66 W.C.D. 71 (W.C.C.A. 2005), summarily aff’d (Minn. Feb. 6, 2006); 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).
 Schulte, 278 Minn. at 83, 153 N.W.2d at 134, 24 W.C.D. at 295; Hubbell, 45 W.C.D. at 517.
 Hildebrandt, slip op. at 6.
 Respondent’s Exhibit A, report dated August 31, 2010.