JULI A. TODD, Employee/Appellant, v. WEST WIND VILLAGE and MINNESOTA HEALTH CARE ASS’N/CCMSI, Employer-Insurer, and PRIMEWEST HEALTH, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 5, 2013
CAUSATION - SUBSTANTIAL EVIDENCE; CALCULATION OF BENEFITS. Where substantial evidence supports the compensation judge’s conclusion as to the injury responsible for the employee’s disability, the compensation judge’s finding that the employer and insurer had used the correct wage for the calculation of benefits and had not underpaid benefits is affirmed.
Determined by: Stofferahn, J., Milun, C.J., and Wilson, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. George W. Kuehner, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that the employer and insurer used the correct wage for the payment of wage loss benefits and from the denial of her claim for an underpayment of benefits. We affirm.
Juli Todd, the employee, was working as a certified nursing assistant for the employer, West Wind Village, on April 8, 2008, when she sustained a work injury to her low back. The employee did not seek medical attention at that time and continued to perform her regular duties for the employer until September 25, 2008, when she saw Dr. Anthony Lussenhop at the Alexandria Clinic. The employee was unable to keep working for the employer after October 22, 2008, and she subsequently filed a claim petition for temporary total disability benefits from that date. The employee’s claim was heard by a compensation judge on December 15, 2009. The compensation judge issued his findings and order on March 22, 2010, which were not appealed by any party.
The compensation judge found that “the employee sustained a sprain/strain of her low back on April 8, 2008.” The employee’s wage on that date was disputed and the compensation judge determined that the employee’s weekly wage as of that date was $568.50. The compensation judge further determined that the employee suffered a Gillette injury to her low back culminating on September 25, 2008. For that injury, he accepted a diagnosis provided by the employee’s treating doctors of “lumbar spondylosis with associated facet syndrome.” The compensation judge noted the stipulation of the parties that the employee’s wage on September 25, 2008, was $498.76.
The compensation judge awarded the temporary total disability requested by the employee. There was no finding in the findings and order as to whether the employee’s disability was the result of one injury or whether both injuries had contributed to that temporary total disability. There was also no finding as to the wage or compensation rate to be used for the payment of temporary total disability benefits.
The employer and insurer paid temporary total disability benefits to the employee, using the wage of $498.76 to calculate the compensation rate. After some correspondence between the attorneys on the question of the correct compensation rate, the employee filed a claim petition in May 2010 that was later amended. The employee claimed that temporary total and temporary partial disability benefits had been underpaid and the employee also sought penalties for the alleged underpayment. The claim petition was heard by a compensation judge on June 19, 2012.
At the hearing, the employee argued that benefits should have been paid based on the higher wage of the two injuries, that of April 8, 2008, at $568.50. The employee claimed that the use of an incorrect wage by the employer and insurer resulted in an underpayment of benefits. The employer and insurer responded that benefits had been paid appropriately and requested that the employee’s claim be denied. The compensation judge issued her findings and order on August 13, 2012. On the issue presented by the parties, the compensation judge found that
Based on the preponderance of the evidence, the applicable wage for purposes of calculation of temporary total disability and temporary partial disability after September 25, 2008 is the wage in effect on September 25, 2008, that is $498.76.
The compensation judge also denied the employee’s claim for penalties. The employee has appealed.
The compensation rate for an employee’s temporary total disability benefits is “66-2/3 percent of the weekly wage at the time of injury.” Minn. Stat. § 176.101, subd. 1. In this case, the employer and insurer paid wage loss benefits to the employee based on her wage on September 25, 2008, the second date of her two work injuries. There is no contention that the employer and insurer miscalculated the compensation rate for that injury date. The employee argues instead that because her first injury, that of April 8, 2008, contributed to her temporary total disability, the wage from that injury should have been used to calculate the appropriate compensation rate, and that the employer and insurer’s failure to use that wage resulted in an underpayment of benefits. In response, the employer and insurer assert that the September 2008 injury was the controlling injury and that benefits were paid correctly.
Given these arguments, the factual determination to be made by the compensation judge at the hearing was whether the April 2008 injury was a contributing factor in the disability after October 22, 2008, or whether the disability was due only to the September 2008 injury. This determination was not made on the basis of a de novo consideration of the evidence. The parties agreed that the unappealed March 2010 decision represented the law of the case on this issue. As a result, the arguments of the parties at the hearing focused on what conclusions on the issue of the injury responsible for the employee’s disability could be drawn from the March 2010 findings and order.
The compensation judge decided that the employee’s disability was a result of the September 2008 injury only. The compensation judge noted that the diagnosis of the April 2008 injury was a sprain/strain of the low back, while the diagnosis after the September 2008 injury was lumbar spondylosis with associated facet syndrome. The compensation judge also stated that there had been no request for apportionment between the two claimed injuries at the first hearing, and that, although the employee’s wages were less in September 2008 than in April 2008, there had been no claim for temporary partial disability benefits between April and September and no showing that the employee was entitled to those benefits.
On appeal, the employee points to evidence submitted at the first hearing and findings made in the March 2010 decision which would support a conclusion that the April 2008 injury contributed to the disability after September 2008. While such evidence certainly exists, the question for this court is not whether the evidence would have supported a contrary result, but whether substantial evidence exists to support the compensation judge’s decision. Waldvogel v. Browning-Ferris Indus., No. WC04-110 (W.C.C.A. Aug. 19, 2004); Hassan v. Specialty Staff Inc., No. WC06-145 (W.C.C.A. Mar. 13, 2007). We are unable to state, on the basis of the record before us, that the compensation judge must be reversed on her factual determination.
In her brief, the employee cites to a number of decisions to support her argument that in the instance of multiple injuries, the compensation rate must be based on the higher wage. Whether or not such a rule exists, the cases cited by the employee are those in which more than one injury has contributed to the employee’s disability. Those cases, however, have no application where, as here, it has been determined that one injury is the cause of the claimed disability.
The decision of the compensation judge is affirmed.
 A detailed recitation of the employee’s medical care may be found in an earlier decision by this court. Todd v. West Wind Village, No. WC11-5275 (W.C.C.A. Nov. 10, 2011).
 The compensation judge hearing the case in June 2012 was not the same compensation judge that had heard this matter in December 2009.
 The employee also appealed the compensation judge’s denial of the claim for penalties based on the underpayment of benefits. Our decision here decides that issue as well.