FRANK SCHWEDER, Employee/Appellant, v. COVALENCE SPECIALTY MATERIALS CORP. and ARCH INS./GALLAGHER BASSETT SERVS., INC., Employer-Insurer/Cross-Appellants, and UCARE and ST. MARY’S DULUTH CLINC HEALTH SYS., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 26, 2011
TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET. A voluntary move to a labor market with fewer employment opportunities does not automatically constitute a withdrawal from the labor market.
Affirmed in part and reversed in part.
Determined by: Stofferahn, J., Pederson, J., and Johnson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Russell J. LaCourse, LaCourse & Envall, Duluth, MN, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Cross-Appellants.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s denial, in part, of his claim for temporary total disability benefits. The employer and insurer appeal from the award of a period of temporary total disability benefits. We reverse in part and affirm in part.
Frank Schweder sustained an injury to his low back on or about April 28, 2006, while working for Covalence Specialty Materials. The employee worked for the employer in the Twin Cities and he was living in Eagan at the time of his injury. He received conservative medical care for his low back and continued to work for the employer without restrictions until he left his job in May 2008.
At the end of May 2008, the employee moved to Hoyt Lakes, Minnesota. The move was motivated in substantial part by his daughter’s ill health. The employee was caring for her and her two small children and testified that because of his low back problems he was not able to provide all of the necessary care. The move to Hoyt Lakes facilitated receiving help from his family including the use of a house owned by his sister and her husband at no cost.
At the time of his move, the employee was treating at Medical Advanced Pain Specialists [MAPS]. A chart note dated May 29, 2008, stated that the employee did not have any work restrictions. In June, the recommendation was made by the physicians at MAPS that the employee receive an implanted spinal cord stimulator. Treatment at MAPS thereafter centered around the prescription of pain medication while waiting for approval from the insurer for the spinal cord stimulator. There is no record of work restrictions being placed on the employee by the physicians at MAPS through the date of his last visit there on November 17, 2008.
On December 11, 2008, the employee saw Dr. T. Scott Douglass, an occupational medicine practitioner in the Virginia office of the Duluth Clinic. Dr. Douglass recommended a surgery consultation with Dr. Timothy Garvey at Twin Cities Spine Center. Dr. Douglass also provided work restrictions, essentially limiting the employee to sedentary work.
The employee sought vocational rehabilitation assistance and met with QRC Kim Eisenhuth on December 5, 2008. A rehabilitation plan recommending job search was filed by the QRC on December 23. The employer and insurer refused to agree to rehabilitation services and an administrative conference on the issue was held on March 16, 2009. A decision was issued on April 14, 2009, allowing rehabilitation and approving the rehabilitation plan filed by the QRC. There was no appeal from this determination.
During the pendency of the rehabilitation request, the QRC did not provide any rehabilitation assistance to the employee and the employee looked for work on his own. His job logs indicate he made five contacts with potential employers in February 2009 and telephone contacts with possible employers on four days in March. The job logs do not show any job search in April 2009. In May, he checked for openings on the internet on two days, checked the ads in the newspaper on one day, and made contact with two other potential employers. The employee looked for jobs in Virginia, Hibbing, Eveleth, and other towns on the Range. The employee primarily looked for clerk and cashier positions.
The employee saw Dr. Timothy Garvey on April 9, 2009. Dr. Garvey recommended surgery for the employee’s back condition. The employee decided he wanted to proceed with the surgery and in follow up with Dr. Douglass, he was taken off work by Dr. Douglass as of June 9, 2009, pending surgery. Dr. Garvey performed multi-level decompression and discectomy surgery on September 8, 2009.
The employee was not released to work until May 14, 2010. On that date he saw Dr. Lynne Quenemon in the occupational medicine clinic at the Virginia office of the Duluth Clinic. She restricted him to lifting no more than 25 pounds and changing positions as necessary. The QRC began job search activities with the employee in May. Job logs after that time show the employee was looking for work in Hoyt Lakes, Mountain Iron, Virginia, Hibbing, and Duluth. The compensation judge found the employee cooperated with rehabilitation during this time.
The employee filed a claim petition in April 2009 seeking temporary total disability benefits from December 11, 2008. The employee’s claim was heard by Compensation Judge Arnold on August 5, 2010. In his Findings and Order of October 25, 2010, the compensation judge awarded temporary total disability benefits from June 9, 2009, through May 14, 2010, when the employee had been taken off work by his doctors. The compensation judge denied temporary total disability from December 11, 2008, to June 8, 2009, and from May 14, 2010, to the date of hearing on the basis of his determination that the employee had withdrawn from the labor market in moving to Hoyt Lakes from the Twin Cities. The employee appeals the denial of temporary total disability benefits. The employer and insurer cross-appeal from the award of temporary total disability benefits.
The central issue in this matter is whether the employee’s move from the Twin Cities to Hoyt Lakes constitutes a withdrawal from the labor market so as to preclude the employee from the receipt of temporary total disability benefits.
The issue of removal from the labor market was addressed in Paine v. Beek’s Pizza, 323 N.W.2d 812, 35 W.C.D. 199 (Minn. 1982). Mr. Paine, who had been injured while working as a delivery driver in the Twin Cities, had moved to a small farm in Rouseau County. His efforts in returning to employment in his new location consisted of contacting some stores in two nearby small towns and taking a correspondence course to become a locksmith. In reversing an award of total disability benefits, the court stated, “from the record, it is clear that where he chose to live, the employee could obtain nothing other than sporadic, short-term employment resulting in grossly insubstantial income.” 323 N.W.2d at 814, 35 W.C.D. at 203. The court also noted, “the employee, of course, has the right to choose where he will live. It does not follow, however, that if an employee chooses to live in an area where employment opportunities for him are virtually nonexistent, an employer-insurer must subsidize him by continued payment of total disability payments.” 323 N.W.2d at 815, 35 W.C.D. at 205.
Subsequent to the Paine decision, this court has considered the question of whether a move to a smaller labor market constitutes a removal from the labor market so as to preclude an award of temporary total disability benefits. In Blaeser v. American Hoist & Derrick Co., 40 W.C.D. 389, 394 (W.C.C.A. 1987), the employee, who had been laid off by the date-of- injury employer in the Twin Cities, had moved to Mahnomen, Minnesota, a town of just over 1,000 people near Detroit Lakes. This court stated, “to determine whether a move to a new community constitutes a withdrawal from the labor market under Paine, we are to inquire whether a reasonable person in employee’s position could have expected to obtain employment in the new community.” In affirming an award of benefits, the court noted that, “both vocational experts testified that employee would likely be able to find employment if expert assistance were provided.”
In Giles v. State, Dep’t of Transp., 59 W.C.D. 1, 9 (W.C.C.A. 1999), the employee relocated to Albert Lea from the Twin Cities and found employment at a wage loss. The employer argued that the employee could have found better paying jobs in the Twin Cities and that any temporary partial disability benefits should not be based on the labor market where she was now located. In rejecting that argument, the court stated that, “a voluntary move to an area of lesser employment opportunities and lower wages does not automatically constitute a withdrawal from the labor market.” The compensation judge, in awarding benefits, had accepted the testimony of an employment expert that the employee had cooperated with rehabilitation and that her earnings were consistent with the labor market in the Albert Lea area.
In the present case, then, the employee’s move to Hoyt Lakes is not automatically a removal from the labor market and does not by itself mean that the employee here is not entitled to temporary total disability benefits. The question, rather, is whether the employee could expect to obtain nothing other than short-term, sporadic employment resulting in grossly insubstantial employment or whether the employment opportunities for the employee in his new labor market are virtually nonexistent.
The employee’s QRC, Kim Eisenhuth, testified that the labor market for the employee’s job search was St. Louis County. The monthly progress report from Ms. Eisenmuth dated June 24, 2010, the first month the employee was in job search after his release to return to work identified 55 contacts and 14 leads provided to the employee. The progress report dated July 26, the last report filed before the hearing, had 106 contacts and 39 leads. Maureen Ziezulewicz, a QRC, testified as a vocational expert on behalf of the employer and insurer. In looking at computer IT and customer service positions, she stated she was unable to find any open positions for the employee in these fields in the Hoyt Lakes area or in Duluth. In her report of July 8, 2010, she stated that there were 663,682 people in the labor force in the Twin Cities compared with 106,457 in St. Louis County. The unemployment rate was 6% in the Twin Cities compared with 6.8% in St. Louis County.
Clearly the labor market in St. Louis County is smaller than the labor market in the Twin Cities. The evidence, however, does not support a determination that the employee would be able to obtain only “sporadic, short-term employment resulting in grossly insubstantial income” or that employment opportunities are “virtually nonexistent.” We conclude the compensation judge erred in denying temporary total disability benefits to the employee on the basis of a removal from the labor market.
The employee’s claim for temporary total disability benefits consists of three time periods: 1) December 11, 2008, when he first saw Dr. Douglass until June 9, 2009, when he was taken off work pending surgery; 2) from June 9, 2009, until May 14, 2010, when he was released to return to work following surgery; and 3) from May 14, 2010, through the date of hearing.
In the first period, December 11, 2008, to June 9, 2009, the employee had been released to return to work with restrictions provided by Dr. Douglass. In that situation, the employee must engage in what is usually referred to a “diligent job search” in order to be entitled to benefits. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 933 (Minn. 1988). The compensation judge in this case specifically found the employee’s job search during this time period not to be reasonable and diligent. We find substantial evidence, as we have noted earlier in this decision, to support this finding and the compensation judge’s denial of this period of claimed temporary total disability benefits is affirmed.
The compensation judge awarded benefits for the period of June 9, 2009, to May 14, 2010, when the employee had been taken off work by his doctors pending surgery and during his recovery form surgery. The employer and insurer have appealed this award and argue it is not allowable under Minn. Stat. § 176.101, subd. 1(f). They also contend that the employee’s removal from the labor market severed any causal relationship between the work injury and wage loss, even if that wage loss is due to an inability to work for medical reasons.
Both of these arguments are premised on a conclusion that the employee’s move to Hoyt Lakes was a withdrawal from the labor market. We have already determined, however, that the evidence here does not support such a conclusion. Accordingly, we see no basis upon which to reverse the compensation judge’s award for this period of time and his award is affirmed.
The last period of claimed disability is after May 14, 2010, when the employee was released to work within restrictions. The employee engaged in job search under the direction of his QRC. We have said in a number of cases that “when an employee has rehabilitation assistance, the issue for purposes of wage loss entitlement is not so much whether the employee looked for work as whether the employee made a good faith effort to cooperate with rehabilitation efforts.” See Boeder v. State, Dep’t of Natural Resources, 63 W.C.D. 634, 643 (W.C.C.A. 2003), and the cases cited therein. The compensation judge found that the employee had cooperated with rehabilitation after May 14, 2010. We see no basis then for a denial of the employee’s claim after that date and we reverse the compensation judge’s denial of temporary total disability benefits after May 14, 2010.
 A detailed recitation of the employee’s medical care may be found in our prior decision in Schweder v. Covalence Specialty Materials Corp., No. WC10-5047 (W.C.C.A. July 1, 2010).
 The previous litigation in this matter involved the issue of whether the employee’s work injury was a substantial contributing factor in the employee’s need for medical care, including the surgery done by Dr. Garvey. In Findings and Order issued November 25, 2009, Compensation Judge Jerome G. Arnold found the care to be causally related as well as reasonable and necessary. This court’s decision on July 2, 2010, affirmed the compensation judge’s decision.