DAVID R. BJORKLUND, Employee/Appellant, v. BJORKLUND CONSTR. and TRAVELERS GROUP, Employer-Insurer, and GROUP HEALTH PLAN, INC., d/b/a HEALTHPARTNERS and BLUE CROSS BLUE SHIELD, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 5, 2012
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee conducted a limited job search for executive positions that was interrupted by a non-work related surgery, the compensation judge did not err by denying temporary total disability benefits during that time period.
Determined by: Milun, C.J., Johnson, J., and Wilson, J.
Compensation Judge: Adam S. Wolkoff
Attorneys: David H. Bailly, Minneapolis, MN, for the Appellant. Barbara Heck, John G. Ness & Assocs., St. Paul, MN, for the Respondents.
PATRICIA J. MILUN, Chief Judge
The employee appeals the compensation judge’s finding that the employee was not totally disabled from May 3, 2011, to March 13, 2012, as a result of his 1976 work injury. We affirm.
On August 24, 1976, David Bjorklund, the employee, injured his right knee while working as a carpenter for Bjorklund Construction, the employer, which was insured for workers’ compensation liability. That liability is now covered by Travelers Group. The employer and insurer admitted liability for this injury and paid various workers’ compensation benefits. From 1976 to 1979, the employee worked in health insurance and real estate, and also worked for the employer at times. The employee’s injury required extensive treatment, including multiple surgeries. By 1979, the employee realized he could no longer perform construction work. He returned to full-time work for the employer performing sedentary office work as a manager. In 2000, the employee stopped working for the employer and started working in a well-paying, primarily sedentary position as chief executive officer and fund manager for The Building Group, a self-insured workers’ compensation fund for small businesses. In August 2006, he left this position for reasons unrelated to his knee injury. The employee received a severance package months later, and had access to retirement funds.
The employee thereafter engaged in a selective job search for another executive position or consulting work. He was approached by one company about starting a new fund, but after waiting for two years for that company to act, he started to pursue other options in 2009. He also engaged in stock market investing. From August 2010 to August 2011, he received unemployment compensation.
Over the years, the employee’s right knee condition continued to deteriorate, causing pain and decreased function. On May 3, 2011, the employee sought treatment with Dr. Randy Twito, an orthopedic surgeon, reporting right knee pain and problems with his left knee. Dr. Twito diagnosed bilateral advanced knee arthritis and recommended bilateral total knee replacement surgeries at least three months apart. The employee requested approval for right knee replacement surgery, which the insurer denied on grounds that the surgery was not related to the work injury. The employee then scheduled his left total knee replacement surgery, which was not work-related, for August 31, 2011. During this time, the employee had a tentative job offer from another employer, but he was advised to defer training until after his surgery.
On July 29, 2011, the employee filed a claim petition for approval of the right knee surgery and for temporary total disability benefits from August 31, 2011, and continuing. The employer and insurer denied the claim.
The employee underwent left total knee replacement surgery on the scheduled date. After the surgery, the employee was seen at home for follow-up care and physical therapy. He began outpatient physical therapy in September 2011, which continued through the end of the year. At a follow-up appointment on October 25, 2011, Dr. Twito noted that the employee was progressing slowly in physical therapy. The employer and insurer later approved the right total knee replacement surgery and agreed to pay temporary total disability benefits beginning on the surgery date. On November 29, 2011, Dr. Twito stated the employee was “unable to pursue employment at this time while rehabilitating his left total knee replacement and upcoming right total knee replacement surgery,” which was scheduled for sometime in February or March 2012.
The employee underwent the right total knee replacement surgery on March 14, 2012, and the employer and insurer paid temporary total disability benefits beginning on that date. The employee amended his claim petition to include temporary total disability benefits as of May 3, 2011. A hearing was held on March 30, 2012, on the employee’s claim for temporary total disability benefits. The parties stipulated that the employee’s March 14, 2012, right total knee replacement surgery was reasonable, necessary, and causally related to the employee’s 1976 work injury and that the employee was entitled to temporary total disability benefits from and after the date of surgery. The issue at hearing was whether the employee was entitled to temporary total disability benefits from May 3, 2011, to March 13, 2012. The compensation judge found that the employee was not entitled to the claimed temporary total disability benefits. The employee appeals.
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. Fact findings 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 dispute before the compensation judge and before this court is whether the employee is entitled to temporary total disability benefits from May 3, 2011, to March 13, 2012, as a result of his 1976 work-related injury. There is no precise definition of temporary total disability. Under Schulte v. C. H. Peterson Constr. Co., the Minnesota Supreme Court considered an employee totally disabled if the employee's physical condition, age, training, and experience, as well as the type of work available in the community, cause the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income. Where an employee has no restrictions, there is no disability and the employee is not entitled to wage loss benefits. In the present case, there is no dispute that the employee is physically restricted as a result of his work-related right knee condition.
The concept of total disability depends on the employee's ability to find and hold a job, not on physical condition. The Minnesota Supreme Court stated in Redgate v. Sroga’s Standard Serv., “[t]he 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.” Whether an employee has met the burden of proving total disability is a question of fact for the compensation judge. Thus, the issue before this court is whether the evidence as a whole reasonably supports the judge’s finding that the employee was not totally disabled from May 3, 2011, to March 13, 2012.
The employee testified that he had conducted a job search from 2009 through August 2011. The determination of whether the extent of a job search is reasonable is a fact question under the specific circumstances of each case. The employee seeks temporary total disability benefits as of May 3, 2011, when Dr. Twito recommended the bilateral total knee replacement surgeries. The compensation judge specifically noted that Dr. Twito did not take the employee off work at that time, and therefore concluded the employee was required to perform a reasonable job search. The judge found that the employee conducted a specialized job search limited to upper management positions, noting also that: “[t]he employee was not looking to simply find any job that might have come his way. Rather, he was attempting to find a unique position in which he could capitalize on his particular expertise and experience in the construction and insurance industries.” The compensation judge, as the finder of the facts, could reasonably conclude that the employee’s job search was too restrictive to be considered a diligent job search.
The employee also argues that he is entitled to temporary total disability benefits beginning October 25, 2011, when he had a follow-up appointment with Dr. Twito, asserting that the medical chart note from that date documents that he had recovered from his left knee surgery to the point that his right knee condition was the cause of his disability. We note, however, that the medical records from that date indicate otherwise. According to the chart note, the employee was progressing slowly in physical therapy, his range of motion had limited improvement, his left knee was still swollen throughout the day, and he was walking with a slight limp. Moreover, Dr. Twito indicated that the employee continued his left knee rehabilitation in November 2011. The compensation judge, as the factfinder, could reasonably conclude that the employee’s left knee had not recovered as of October 2011.
Finally, the employee argues he was unable to job search because of the pending surgery for his right knee as of November 29, 2011, when Dr. Twito stated the employee was unable to search for work because of his left knee rehabilitation and because of his upcoming right total knee replacement surgery in March 2012. Again, while Dr. Twito noted in November 2011 that the employee continued to recover from his left knee surgery and that he continued to work on the range of motion of his left knee, Dr. Twito did not remark on the employee’s right knee condition other than the pending surgery. There was no medical opinion on the effect of the employee’s current right knee condition on his ability to work or to job search. The compensation judge was persuaded by the evidence of record that the employee’s inability to work or to job search at that time was not due to his right knee condition but instead concluded that the employee’s inability to work or to job search was due to “a difficult, painful and protracted recovery from non-work related surgery on the left knee.” Based on the testimony and evidence submitted, the judge concluded that the employee’s entitlement to work-related temporary total disability benefits did not begin until the date of his right knee surgery. We therefore conclude on the specific facts of this case, that the compensation judge did not err in denying the claimed temporary total disability benefits, and we affirm.
 Employee’s Ex. F.
 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).
 Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).
 Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).
 McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 542, 36 W.C.D. 133, 139 (Minn. 1983).
 Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).
 McClish, 336 N.W.2d at 541, 36 W.C.D. at 138.
 The employee thereafter admitted that he has conducted no job search since August 31, 2011.
 Redgate, 421 N.W.2d at 734, 40 W.C.D. at 956.
 Memo. at 5.
 The employee indicated that he had a tentative job offer in July 2011. Training related to that job offer, however, was delayed due to the scheduled non-work related left knee surgery in August 2011 and has not been rescheduled.
 Memo. at 6.