PETER O. SOVELL, Employee/Appellant, v. SPECIAL SCH. DIST. #1/MINNEAPOLIS PUB. SCHS., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 17, 2011
TEMPORARY PARTIAL DISABILITY - WORK RESTRICTIONS. Where there were no findings in a claim for temporary partial disability benefits on the issue of whether the employee had restrictions as the result of his work injury, remand for findings on the issue is necessary.
Vacated and remanded.
Determined by: Stofferahn, J., Wilson, J., Johnson, L.
Compensation Judge: Danny P. Kelly
Attorneys: Dean M. Salita, Brabbit & Salita Minneapolis, MN, for the Appellant. Michael J. Koshmrl, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s denial of his claim for temporary partial disability benefits. We vacate and remand.
Peter Sovell sustained a work injury to his left knee on April 9, 2008, in the course of his employment with Minneapolis public schools. He had been employed by the school district as a teacher since the fall of 1983 and at the time of his injury was also a coach for baseball, football, and gymnastics. The employee was injured while he was coaching baseball. He was demonstrating a technique a runner could use to lead off third base. As he shifted his weight from one foot to the other, his left knee gave out and he fell. He experienced immediate left knee pain. The employee reported the injury to his employer and then contacted Orthopedic Consultants for an appointment.
The employee had treated at Orthopedics Consultants previously. In 2000, he had a work-related injury to his right knee and Dr. Alan Markman did arthroscopic surgery on January 25, 2001. In that procedure, the employee had a partial medial menisectomy and debridement of the medial femoral condyle and chondromalacia in the patellofemoral joint. The employee’s medical records indicate he continued to have some discomfort in his right knee thereafter. There is also reference in the records to discomfort in his left knee with no indication of treatment.
The employee saw Dr. Thomas Raih on April 11, 2008, and presented a history of the April 9 injury. Dr. Raih diagnosed a tear of the medial meniscus of the left knee and mild degenerative changes in the knee. After an MRI was done, Dr. Raih’s impression was of an acute chondral injury involving the medial femoral condyle and MRI evidence of an old posterior cruciate ligament [PCL] injury in addition to the medial meniscus tear. Dr. Raih recommended total knee arthroplasty.
The employer had the employee evaluated by Dr. Rajan Jhanjee, who saw the employee on June 11, 2008. Dr. Jhanjee’s conclusion was that the injury to the left knee represented “an exacerbation of pre-existing advanced arthritis” as well as a medial meniscus tear. It was his opinion that the total knee arthroplasty recommended by Dr. Raih would not be related to the work injury but was due to the pre-existing degenerative condition.
The employer refused to authorize a total knee arthroplasty and Dr. Raih proceeded with surgery on July 21, 2008, a partial medial menisectomy and removal of loose body material in the lateral compartment of the knee. The employee testified and his records indicate that the surgery was successful in reducing the employee’s symptoms.
On September 22, 2008, Dr. Raih provided the employee with permanent restrictions. He was to avoid lifting in excess of 30 to 40 pounds, and was to limit the use of stairs and ladders. The employee continued to see Dr. Raih for his osteoarthritis. In a report dated December 17, 2008, Dr. Raih stated that the April 2008 injury was a significant contributing cause for the knee surgery done in July. He also stated, “In my opinion, that injury contributed to the need for ultimate total knee replacement arthroplasty.”
The employee testified that even after the knee surgery, he has had pain in his knee “off and on.” The employee also testified to a number of activities he could no longer do or do as well, such as walking around a lake with his wife, mowing his yard, or coaching activities.
In August 2009, the employee had a second independent medical examination [IME], this time with Dr. Paul Wicklund. In Dr. Wicklund’s opinion, the arthritic condition discussed by Dr. Raih was not due to the employee’s work for the school, was not due to any specific injury, and was simply the result of a “varus deformity.” Dr. Wicklund felt no restrictions were necessary for the medial menisectomy and in his opinion the medial menisectomy was the extent of the employee’s work injury in April 2008.
The employee taught accounting, advanced accounting, and advanced placement economics at Edison High School for the 2007-2008 school year. During the school year, it was announced that Edison had not made adequate progress in measures used by the federal No Child Left Behind Act and a “fresh start” program would be implemented. Under this program, all teachers at Edison were terminated and advised that they would have to reapply for their jobs for the next school year. The employee was included in the fresh start program and was terminated from his teaching position. When the employee sought to reapply, his former position was no longer available. According to testimony presented at the hearing by the employer, of the 89 teaching positions at Edison in the 2008-2009 school year, only 38 were occupied by the teachers who had held those positions in the 2007-2008 school year.
The employee applied for other teaching and non-teaching positions within the school district but was not accepted for any of them. At the end of the 2007-2008 school year, the employee negotiated a 4-year leave of absence which allowed him to continue contributing to his teacher’s retirement account. The employee has not worked for the school district since the end of the 2007-2008 school year.
The employee received rehabilitation assistance from a QRC and a job placement vendor. Job search efforts focused on finding Mr. Sovell a position which would allow him to participate in the teacher’s retirement plan. These positions were generally teaching and other public employment. Mr. Sovell found and accepted a job at the Minnesota Internship Center, a charter school serving students who have not succeeded in traditional high school. In 2008-2009, he taught business and economics, and in 2009-2010, taught science and history. In the first semester of 2008-2009 school year, the employee also taught economics after school on an hourly basis at Minnesota Transitions, another charter school. Mr. Sovell’s earnings after his return to work in August 2008 were substantially less than his wage with the employer at the time of the injury.
The employee filed a claim petition in August 2009. As presented at the hearing, the employee claimed temporary partial disability benefits after August 18, 2008, rehabilitation services, permanent partial disability as rated by Dr. Raih, and approval of a total knee arthroplasty recommended by Dr. Raih. The hearing was held on September 21, 2010, before Compensation Judge Danny P. Kelly. In his findings and order issued on November 29, 2010, the compensation judge denied the employee’s claim for temporary partial disability benefits, finding that the employer rebutted the presumption of post-injury earnings being representative of earning capacity and that the employee did not sustain a loss of earning capacity as a result of his injury. The employee appeals.
In order to establish a claim for temporary partial disability benefits, the employee must demonstrate a work-related disability and an actual loss of earning capacity that is causally related to the disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).
In the present case, the employee presented the opinion of Dr. Raih as to restrictions related to the work injury and his own testimony on the limitations he experienced as a result of that injury. The employer presented the opinion of Dr. Wicklund that the employee had no restrictions from the work injury, identified by Dr. Wicklund as being as only the torn medial meniscus.
The findings by the compensation judge deal only with the second part of the temporary partial disability analysis, whether the employee has a loss in earning capacity. The compensation judge made no findings as to whether or not the employee had physical restrictions as the result of his work injury. In the absence of restrictions from the work injury, 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 issue raised by the employee on appeal, his claimed loss of earning capacity from the work injury, cannot be reviewed by this court in the absence of a finding as to whether or not the employee has restrictions from the work injury.
Accordingly, we must vacate the compensation judge’s findings and order and remand the matter for a finding as to whether the employee has physical restrictions from the work injury. If so, findings should be made as to whether or not he has a loss of earning capacity from the injury as discussed by this court in Skelley v. Lucent Techs, 66 W.C.D. 379 (W.C.C.A. 2006).