SALLY A. WATSON, Employee, v. CASS COUNTY, SELF-INSURED/MINNESOTA COUNTIES INS. TRUST, Employer/Appellant, and MINNESOTA DEP’T OF LABOR & INDUS./VRU, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 9, 2012
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. A job search is not required for an award of temporary partial disability benefits, but the nature and extent of any job search is evidence which the compensation judge may consider in determining the employee’s earning capacity. The compensation judge did not err by awarding temporary partial disability benefits where the employee was working full time and cooperating with rehabilitation services.
Determined by: Milun, C.J., Wilson, J., and Pederson, J.
Compensation Judge: James F. Cannon
Attorneys: John P. Bailey, Bailey Law Office, Bemidji, MN, for the Respondent. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Appellant.
PATRICIA J. MILUN, Judge
The self-insured employer appeals from the compensation judge’s determination that the employee is entitled to temporary partial disability benefits. We affirm.
On December 15, 2006, Sally A. Watson, the employee, sustained a work-related back injury while working as a corrections officer for Cass County, the employer, which was self-insured for workers’ compensation liability. The employer paid various workers’ compensation benefits, including medical expenses, rehabilitation benefits, and temporary total disability benefits from December 17, 2006, through December 13, 2008. The employer did not have light-duty work available for the employee that could accommodate the employee’s permanent restrictions.
The employee began working with QRC Carmen Eberhardt in March 2007. On August 14, 2008, the employee signed a job placement plan and agreement which included a requirement that the employee conduct a job search within a 50-mile radius of her home near Walker, Minnesota. Barriers to employment noted in the rehabilitation records included the rural area where the employee lived and her limited educational and vocational history. At the onset of rehabilitation services, the employee expressed her worries about driving beyond the Walker area to job search. She clearly stated her preference to find a job in the Walker area “as she [did] not wish to drive out of town, especially during the winter.”
On January 13, 2009, the employee began working as a substance abuse technician full time at First Step, which included driving, chaperoning, and monitoring teens and adults at outpatient chemical dependency programs. At that point, the QRC assessed job placement services with the employee were concluded based on the employee’s full-time job. In a February 2009 rehabilitation report, the QRC recommended closing the rehabilitation file since a rehabilitation conference scheduled for February 10, 2009, was cancelled by the employer and the employee was no longer participating in rehabilitation services. In a March 2009 rehabilitation report, the QRC recommended closing the file or suspending rehabilitation services given the fact that the employee had been working in a full-time position. There is no record of a response by the employer to the QRC after the claims representative withdrew a rehabilitation request in February of 2009. It was the employee’s attorney who requested that the rehabilitation file remain open since the employee was working full time at less than her pre-injury wage but the employer was not paying temporary partial disability benefits. On April 16, 2009, the parties signed a rehabilitation plan amendment to keep the file open for services as requested and where appropriate. On September 24, 2009, the insurer agreed to suspend rehabilitation services for 90 days since the QRC had not been providing active services for several months and the employee was working full time.
From November 17 through December 16, 2009, the employee was laid off and received unemployment benefits while her employer was changing locations. The employee then returned to work part time for First Step at the new location. In January 2010, the parties agreed to another 90-day suspension of rehabilitation services. In April 2010, the employee’s QRC once again recommended closing the employee’s rehabilitation file. Thereafter, the employee stopped working with QRC Eberhardt.
In July 2010, the employee began working with a new QRC, Julie Quanrud, at the Department of Labor and Industry Vocational Rehabilitation Unit. QRC Quanrud performed a rehabilitation consultation and determined that the employee was eligible for rehabilitation services. Like QRC Eberhardt, QRC Quanrud identified physical work restrictions, limited work experience and skills, a rural labor market, and a lack of financial resources as barriers to employment for the employee. The employee was subsequently laid off from First Step on September 12, 2010, and collected unemployment benefits until November 1, 2010. On that date, the employee began working as a program manager at the Boys and Girls Club earning $8.00 an hour. The employee continued to work with the QRC and to job search while working. As of January 2011, to the date of the hearing, the employee has worked full time.
A hearing on the employee’s claim for temporary partial disability benefits was held on April 21, 2011. On the day of the hearing, the compensation judge divided the employee’s temporary partial disability claim into five separate periods: (a) January 13 to November 17, 2009; (b) November 18 to December 15, 2009; (c) December 16, 2009, to September 12, 2010; (d) September 13 to October 31, 2010; and (e) November 1, 2010, to the date of hearing. After a brief discussion on the record, the employee withdrew her claim for temporary partial benefits from November 18 to December 15, 2009, and from September 13 to October 31, 2010. The judge then received vocational and medical records into evidence along with testimony from two witnesses, the employee and the QRC. He analyzed the three separate periods of wage loss in his findings and order and denied temporary partial disability benefits from December 16, 2009, to September 12, 2010, and awarded temporary partial disability benefits while the employee was working at First Step from January 13 to November 17, 2009, and while she was working at Boys and Girls Club from November 1, 2010, through the date of the hearing. The self-insured employer 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 self-insured employer asserts that temporary partial disability benefits based on the employee’s actual earnings are not payable when the compensation judge found a lack of diligent job search and when the employee ignored the requirements of the August 2008 job placement plan and agreement by limiting her job search to less than a 50-mile radius from her home.
Entitlement to temporary partial disability benefits requires an employee to demonstrate 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 the 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. Actual wages may not be an accurate reflection of an employee’s earning capacity if the employee is not making a good faith effort to participate in a rehabilitation plan. Determination of earning capacity is a fact question for the compensation judge.
The self-insured employer argues that the compensation judge found a lack of diligent job search which demonstrates a reduction in earnings unrelated to the employee’s work injury and therefore any award of benefits contradicts the judge’s findings by misapplying the workers’ compensation act. The employer also claims that the employee failed to meet her burden of proof to establish wage loss benefits, and therefore, the judge’s order to pay benefits must be reversed. Like the compensation judge, we will consider each period of temporary partial disability separately.
January 13 to November 17, 2009
The judge found the earnings from the employee’s full-time substance abuse technician position at First Step from January 13 to November 17, 2009, to be an accurate reflection of her earning capacity. The employer argues that the employee did not conduct any additional job search for a higher paying position within the 50-mile radius indicated in the employee’s rehabilitation plan. While this is true, we have consistently held that a reasonable and diligent job search is not required for an award of temporary partial disability benefits. The nature and extent of a job search is evidence which the compensation judge may consider in determining whether the employee’s wage loss was causally related to the work injury. Other relevant evidence may include testimony about the labor market, the nature of the employee’s disability, and the employee’s age, education, skills, and experience. A compensation judge may also 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, and the size of the wage loss.
Here, the employee testified that during the period of her employment with First Step the placement specialist did not request any job search. There was no indication by the QRC or the employer that this full-time position was inadequate and that the employee should continue her job search. In fact, job placement services were stopped based on the employee’s full-time employment in January of 2009. The QRC further noted that future contact between the employee and the placement specialist would be intermittent. The QRC recommended closing the employee’s rehabilitation file after a rehabilitation conference scheduled on February 10, 2009, was cancelled by the employer. However, the parties agreed to keep the file open for requested services in April of 2009. The parties later agreed to suspend rehabilitation services for 90 days in September 2009 and again in January 2010.
During this entire period with First Step, the employee did not search for a better paying job and limited her job search to the Walker, Minnesota, area.
[T]he self-insured employer again correctly noted that the rehabilitation records revealed that while the employee was in this job position, the employee did not conduct a reasonable and diligent job search for better paying job positions, limited her job search primarily to the Walker, Minnesota area, and did not abide by a JPPA which she signed that included a 50 mile radius for job search.
The judge appropriately set out in detail the evidence he found to be significant to find the employee eligible for temporary partial disability benefits. Among those reasons he noted that the cumulative conduct of the QRC, placement specialist, and claims adjuster documented in the rehabilitation reports presented a reasonable basis for the employee to believe she had obtained a sufficient job position at her true earning capacity and would not need to conduct job search. This finding was further supported by the testimony of the employee and QRC.
Each case dealing with the question of what constitutes an employee’s true earning capacity has unique facts and must be decided on the evidence presented at the hearing. Earning capacity is “neither static nor amenable to a final determination valid for all [past, present, and] future periods.” The judge found the employee’s wages during this period were an accurate reflection of her current earning capacity based on the suspension of rehabilitation services and her full-time position. Substantial evidence supports the compensation judge’s finding that the employer did not rebut the presumption that the employee’s wages were an accurate reflection of the employee’s current earning capacity. Accordingly, we affirm the compensation judge’s finding of temporary partial disability benefits during this time.
November 1, 2010, to April 21, 2011
The judge found the employee’s full-time job as a program manager for the Boys and Girls Club provided a wage that constituted the employee’s true earning capacity.
As with the employee’s First Step Walker job position, the employee’s Boys and Girls Club job position provided the employee with significant average weekly wage earnings in this job position. Under the Workers’ Compensation Law, where as here, rehabilitation services remain open, but an employee has significant average weekly wage earnings in a full-time job position when compared to the average weekly wage earnings in her pre-injury job position, the presumption that the employee’s actual earnings constitute the employee’s earning capacity is not rebutted, and the employee need not continue a job search for a better paying job position, in order to be eligible for temporary partial disability benefits.
Of the evidence presented, the compensation judge considered the periods of full-time employment to be a significant factor in awarding temporary partial disability benefits.
As noted earlier, a job search is not required for an award of temporary partial disability benefits, but lack of a job search may be considered by a compensation judge in determining an employee’s earning capacity. In the present case, entitlement to wage loss benefits is less dependent on the employee’s job search efforts than on the employee’s cooperation with rehabilitation. Here, the issue is a question of whether the employee’s failure to job search while working full time and her reluctance to job search within a 50-mile radius from her home defeats her temporary partial disability claim. The judge found it did not. In resolving this issue, the judge took into account the QRC’s monthly progress reports that documented the 50-mile requirement to search for work and the employee’s candid reluctance to job search within a 50-mile radius. However, the QRC testified that the employee’s full-time job was within the stated vocational goal of finding the employee suitable gainful employment. The employee continued to work with the QRC and to job search while working for the Boys and Girls Club. There was no evidence of any specific job available for the employee within the 50-mile radius. In addition, the QRC testified that the employee “complied with every single item I’ve asked of her.” This testimonial evidence the compensation judge could reconcile with the lack of job search during the periods of full-time employment and ultimately award the employee benefits. We conclude substantial evidence supports the decision of the compensation judge and we affirm the judge’s award of temporary partial disability benefits.
 The employee’s restrictions included no lifting over 20 pounds, alternate sitting and standing, and no repetitive bending, twisting, or lifting.
 Employer’s Ex. 3.
 The compensation judge also denied the employee’s claim for temporary partial disability benefits for a short period of time in December 2008 while she was working limited hours in a liquor store.
 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).
 The employer also appealed the compensation judge’s finding that the employee has physical work restrictions due to her work injury, but other than one sentence in the introduction of the appeal brief, does not address this issue in its brief. Issues raised in the notice of appeal but not addressed in the appeal brief are deemed waived and will not be decided on appeal. Minn. R. 9800.0900, subp. 1.
 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); Kunferman v. Ford Motor Co., 65 W.C.D. 198, 206 (W.C.C.A. 2004).
 See Minn. Stat. § 176.101 subd. 2(a).
 Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976).
 Mitchell v. White Castle Systems, Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980).
 See Johnson v. Fingerhut Corp., slip op. (W.C.C.A. May 24, 2000); Bauer v. Winco-Energex, 42 W.C.D. 762 (W.C.C.A. 1989).
 Noll v. Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989), summarily aff’d (Minn. Jan 16, 1990).
 Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).
 See Jerabeck v. Teleprompter Corp., 255 N.W.2d 377, 29 W.C.D. 621 (Minn. 1977).
 Nolan, 53 W.C.D. at 394.
 Finding No. 17.
 Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71, 78 (W.C.C.A. 1990), summarily aff’d (Minn. July 13, 1990).
 Finding No. 19 (emphasis in original).
 Nolan, 53 W.C.D. at 394.
 When an employee has a rehabilitation plan, “it is not so much the employee’s job search but rather the employee’s cooperation with rehabilitation that is important in evaluating a claim for wage loss benefits [temporary partial disability benefits] under these circumstances.” Schreiner v. Alexander Constr., 48 W.C.D. 469, 476 (W.C.C.A. 1993), summarily aff’d (Minn. May 27, 1993).
 Tr. 145, 152.
 Tr. 135.