LEROY SUNDQUIST, Employee/Appellant v. STRUCTURAL SPECIALISTS and CNA INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 26, 2000

 

HEADNOTES

 

WAGES - IRREGULAR; WAGES - BOARD & ALLOWANCES.  The compensation judge did not err by using the statutory 26-week wage calculation where the employee only worked 11 weeks out of the 26 weeks preceding his work injury.  Substantial evidence supports the compensation judge=s finding determining the value of the employee=s lodging expense to be included in the employee=s weekly wage.

 

MAXIMUM MEDICAL IMPROVEMENT - SERVICE OF MMI REPORT.  Substantial evidence supports the compensation judge=s finding that the employee was served with a valid notice of MMI on August 4, 1998.

 

Affirmed.

 

Determined by: Rykken, J., Wheeler, C.J., and Pederson, J.

Compensation Judge: Gregory A. Bonovetz

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s calculation of the employee=s average weekly wage and from the compensation judge=s finding that the employee was served with notice of maximum medical improvement as of August 4, 1998.  We affirm.

 

BACKGROUND

 

On May 16, 1997, Leroy Sundquist, the employee, was employed by Structural Specialists, the employer, which was insured on that date for workers= compensation liability in the state of Minnesota by CNA Insurance.  On that date, the employee sustained an admitted injury to his back, after performing repair work on his equipment. 

 

The employee began working for the employer in May 1992, working as a drag line operator.  In that capacity, the employee operated a crane-like piece of equipment outfitted with a bucket device designed to clean and clear out ditches.  The employee maintained, repaired and operated this equipment.  While working for the employer, the employee resided in the community of Gonvick, located in northwestern Minnesota, but performed the majority of his drag line work in Sibley and Nicollet Counties located in southern Minnesota.  Due to the 250 mile distance from his home to his work site, the employee generally traveled from his home to his work site, arriving on Sunday evening and spending the entire work week in southern Minnesota, returning home at the end of the work week.  Occasionally, when he worked six days in one week, he stayed in southern Minnesota during the weekend.

 

The employee initially sought medical treatment through David Kretzschmar, D.C., who restricted the employee from work, and referred him for an MRI scan and neurological consultation.  Based on the MRI, the employee was diagnosed with a Amassive fragmented disc extrusion@ to the right of the midline extending from L4-5 to the L5-S1 level, with compression of nerve roots.  (Pet. Exh. A.) Upon recommendations made by Dr. Richard E. Freeman at a June 6, 1997, neurological consultation, the employee underwent surgery on June 17, 1997, in the nature of a right L5-S1 laminotomy and right L4-5 laminotomy, discectomy.  Post-surgery, the employee=s symptoms persisted, including pain in his right foot and a partial foot drop on the right.  The employee underwent an EMG of the right lower extremity, with findings consistent with a relatively severe right L5 radiculopathy.  Dr. Freeman advised that the Aradiculopathy appears to be secondary to a neural canal stenosis with associated scarring and a possible small recurrent disc fragment.@   By September 1997, Dr. Freeman provided the employee with physical work restrictions, and also advised the employee that future options included a change in jobs, or possibly a second surgery, including a possible fusion, to alleviate his symptoms.  (Pet. Exh. A.)

 

The employer and insurer paid temporary total disability benefits to the employee from  May 17, 1997 through October 30, 1997.  They commenced periodic payment of permanency benefits on July 27, 1998, and as of September 1997, the employer and insurer provided rehabilitation assistance to the employee.

 

At the request of the employer and insurer, the employee underwent a medical examination with Dr. Charles G. Koski.  In his report of October 20, 1997, Dr. Koski stated that the employee had not yet reached maximum medical improvement (MMI) but that he did not believe that additional surgery would be beneficial.  Dr. Koski also stated that it would not be unreasonable for the employee to attempt a trial return to work, within a 50-pound weight lifting limit, and perhaps epidural steroid injections if needed for pain relief.  Following a meeting in late 1997, attended by the employee, employer and QRC, the employee attempted to return to work operating a backhoe and bandsaw.  In spite of the light work assigned to the employee, he continued to experience ongoing symptoms including swelling in his right foot and leg.  He worked three weeks; by approximately November 1, 1997, the employer no longer had work available for the employee within his work restrictions and therefore laid him off.   The employee received re-employment insurance from the Minnesota Department of Economic Security, intervenor, for the weeks ending November 29, 1997 through June 28, 1998, for a total of $9,469.  He continued to receive rehabilitation assistance and underwent a work hardening program in February and March 1998.  Until the summer of 1998, it was anticipated that the employee could eventually return to work for the employer.  (Findings 21, 22 and 27.)

 

The employee was examined by Dr. Koski on April 23, 1998, as a follow-up to a work-hardening program.  Dr. Koski outlined the employee=s work restrictions, recommended a field functional capacities assessment, and opined that the employee could perhaps work five to six hours operating equipment, with additional hours of work on a light-duty basis.  Dr. Koski stated that the employee Ahas probably reached maximum recovery.@  (Pet. Exh. A.) 

 

According to the employee=s testimony, Dr. Koski suggested a referral to a physician in the physical medicine and rehabilitation area, and referred the employee to Dr. Jed Downs, Department of Occupational Medicine, Duluth Clinic.  (T. 108) Dr. Downs examined the employee on May 18, 1998, to evaluate his ongoing leg and back pain.  Dr. Downs advised that he did not believe that the employee was a surgical candidate.  Instead, he referred the employee back to Dr. Kretzschmar for a trial of chiropractic treatment.  Dr. Downs advised that further treatment regimens would be contingent upon whether the employee improved following chiropractic treatment.  The employee returned to Dr. Downs on July 1, 1998, after undergoing twelve chiropractic treatments.  The employee reported little improvement in symptoms; Dr. Downs recommended no further treatment, other than perhaps epidural steroid injections with dural stretching to follow, and a myofascial release to the left lower quarter.  Dr. Downs=s chart note indicates that he discussed the employee=s permanency rating with him.  (T. 110-112.)  Dr. Downs also states that he Areviewed the legislative and administrative law process with him.  I indicated that the degree of permanent partial disability does not necessarily reflect a person=s functional capacity . . .@ Dr. Downs opined that the employee had sustained 17.5%^[1] permanent partial disability of the body as a whole, and that although the employee could supervise the work on a crane assembly, he could not perform the actual duties.  Dr. Downs was of the opinion that the employee could begin working at a 5 hour-per-day rate, with gradual advancement in the number of hours as tolerated.

 

On July 6, 1998, the employee filed a Claim Petition, claiming entitlement to ongoing temporary total disability benefits from November 22, 1997, based upon an average weekly wage of $1,170.  He also claimed various medical expenses and rehabilitation assistance.  In their answer to the employee=s claim petition, the employer and insurer alleged that the employee was laid off for reasons unrelated to his injury, that he was not totally disabled with the meaning of Minn. Stat. '176.101, and that the employee=s average weekly wage on his injury date was $971.75. 

 

On August 4, 1998, the insurer served on the employee a Notice of Benefit Payment indicating that based on Dr. Downs=s July 1, 1998, permanency opinion, assigning a rating of 17.5%,  the employer and insurer would commence payment of weekly permanency benefits, at the weekly rate of $615.00, for a total of 21.3 weeks.  Apparently crossing in the mail with this Notice was an August 5, 1998, letter from the employee=s attorney to the Department of Labor & Industry, amending the employee=s claim for permanency benefits based upon 17.5% permanent partial disability of the body as a whole.^[2] 

 

During the pendency of the claim petition, the employee continued to participate in job search, and obtained employment with Mark II operating a hydraulic crane.  He worked at this job between October 11 - November 9, 1998, until the Mark II job ended.  During the winter months, November 1998 through March 1999, the employee continued to search for employment, and returned to work for Mark II on March 20, 1999.   The employee continued to work for Mark II at a wage loss, and was paid temporary partial disability benefits by the employer and insurer.  At the time of the hearing, the employee was working for both Mark II and Hughes Farms, again at a wage loss; the employer and insurer continued to pay temporary partial disability benefits.

 

Hearing on the claim petition was held before a compensation judge on September 21, 1999.  In Findings and Order served and filed December 23, 1999, and Amended Findings and Order served and filed January 6, 2000, the compensation judge determined that the employee was temporarily totally disabled from November 1, 1997 through October 11, 1998, and awarded payment of temporary total disability benefits for that period of time.  The compensation judge denied the employee=s claim for temporary total disability benefits from November 9, 1998 through January 31, 1999 and from February 8, through March 19, 1999, determining that the employee was not entitled to payment of temporary total disability benefits during those periods of time, since such periods of disability occurred more than 90 days subsequent to service of maximum medical improvement (MMI) on August 4, 1998.  (Finding No. 37.)

 

The compensation judge determined that the employee=s average weekly wage on his date of injury was $1,074.18, based upon the employee=s earnings of $987.30 and lodging expenses of $86.88 paid by the employer, and therefore awarded reimbursement for an underpayment of temporary partial disability benefits previously paid.  The compensation judge also determined that the employee sustained 17.75% permanent partial disability of the body as a whole, as a result of his May 15, 1997, injury, and awarded a credit to the employer and insurer, for an overpayment of permanent partial disability benefits in the amount of $2,677.50.^[3]  In addition, the compensation judge awarded partial reimbursement of attorney=s fees pursuant to Minn. Stat. Sect. 176.081, subd. 7.

 

The compensation judge also ordered reimbursement to the Department of Economic Security for the re-employment insurance benefits paid to the employee from November 29, 1997 through June 20, 1998, with a proportionate share of that reimbursement paid to the employee=s attorney, as Edquist^[4] attorney fees.

 

The employee appeals from the compensation judge=s calculations of average weekly wage based on the employee=s earnings, as well as the calculation of the weekly lodging expenses paid by the employer.  The employee also appeals from the compensation judge=s finding that the employee was properly served with notice of maximum medical improvement on August 4, 1998.  There is no cross-appeal raised by the employer and insurer.

 

STANDARD OF REVIEW

 

On appeal, 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."  Minn. Stat. ' 176.421, subd. 1 (1992).  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."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

Calculation of Average Weekly Wage

 

The compensation judge determined that due to the seasonal nature of the employee=s work, his wages are irregular and difficult to determine.  (Amended Findings and Order, Finding No. 11.)  The compensation judge also found that the employee=s earnings fluctuated, in part because he worked only during non-winter months.   For those reasons, in order to calculate the employee=s average weekly wage, the compensation judge applied the calculation method set forth in Minn. Stat. ' 176.011, subd. 3.  The compensation judge determined that the employee=s average weekly earnings for purposes of computing workers= compensation benefits was $1,074.18.  The judge arrived at this figure by combining the employee=s earnings ($987.30) and the weekly cost of lodging expenses paid by the employer ($86.88).

 

In situations where wages are irregular and difficult to determine, Minn. Stat. ' 176.011, subd. 3, requires that A. . . the daily wage shall be computed by dividing the total amount the employee actually earned in such employment in the last twenty-six weeks by the total number of days in which the employee actually performed any of the duties of such employment . . .@  (Emphasis added.)  The goal in determining an average weekly wage is to Aarrive at a fair approximation of the probable future earning power which has been impaired or destroyed because of the injury.@  Palkowski v. Lakehead Constructors, 57 W.C.D. at 21 (citing Knotz v. Viking Carpet, 361 N.W.2d 872, 874 (1985)).  A compensation judge may deviate from that statutory formula in calculating an average weekly wage, Aas long as that method reasonably reflects the employee=s injury related loss of earning power.@  Hansford v. Berger Transfer, 46 W.C.D. 303, 309-10 (W.C.C.A. 1991).  However, deviation from the statutory formula dictated in Minn. Stat. ' 176.011 is only allowed Awhere the evidence necessary to comply with the statutory directives concerning calculation of weekly wage is not available . . .@  Palkowski, 57 W.C.D. at 21.

 

During the 26-week period immediately prior to the employee=s injury on May 16, 1997, the employee earned a total of $11,855.86.  During that period of time, the employee worked 61 days, as he was off work for the period of time between approximately December 12, 1996 and March 19, 1997.  The compensation judge utilized the calculation method in Minn. Stat. ' 176.011, subd. 3, and found that the employee=s average daily wage, excluding his motel expenses, was $194.35 (based on $11,855.86 divided by 61 days worked).  The compensation judge found that since the employee=s employment was in fact Aseasonal@ the employee=s average weekly wage, excluding the value of lodging, was $987.30 (194.35 x an average of 5.08 days worked each week = $987.30).  (Finding No. 11, Amended Findings and Order, served and filed 1/6/00.)

 

By using the statutory calculation method, the judge used the 26 calendar weeks preceding the employee=s injury on May 16, 1997.  The employee objects to this method of calculation, since it excludes the busier summer season in which the employee earned higher wages. The 26 weeks preceding the injury included only 11 weeks in which the employee actually worked.  Because the employee=s injury occurred in May, this 26-week period includes his earnings from the fall and winter months, a layoff period of approximately 14 weeks, and earnings from spring months.  The employee argues that wages from 40 weeks preceding the injury should be used, to more accurately reflect the employee=s earnings.  

 

In Palkowski, this court upheld the compensation judge=s utilization of the 26-week period preceding the employee=s injury to calculate the average weekly wage.  In that case, during the 26-week period preceding his injury, the employee worked during 19 of those weeks but only 40 days during that entire period.  The employer there argued that the statutory method of calculation should be rejected because using only the 26 weeks immediately preceding the date of the injury resulted in an unfair wage - - an average weekly wage resulting in an annual wage much greater than the employee ever received from his employer.  The court in Palkowski rejected the employer=s argument, and held that the calculations made were Athose specifically mandated by the statute.@  Palkowski, 57 W.C.D. at 27.

 

The employee relies upon an exception articulated in Palkowski, arguing that a deviation from the statutory formula would be appropriate in this case.  The employee contends that since the majority of the employee=s Areal@ work was done in the summer and autumn of the year,  the court should use earnings from the 26 actual weeks worked prior to the injury, extending back approximately 40 calendar weeks, to early August 1996, rather than to mid-November 1996.  While it is true that the employee=s earnings are irregular throughout the year, and that his earnings were lower for part of the 26-week period preceding his injury, nevertheless, the judge was not unreasonable and did not abuse his discretion in using the statutory formula.  Since all the wage information needed to calculate the employee=s average weekly wage pursuant to the statutory formula was available to the compensation judge, as was the case in Palkowski, no deviation from the statutory formula was necessary.

 

The employee further argues that the method used by the compensation judge results in a gross injustice to the employee, as the calculated wage is not reflective of the employee=s loss of earning power.  However, the employer and insurer counter by pointing out that the calculated weekly wage, extrapolated to an annual wage, actually exceeds the employee=s historical annual earnings.  At the hearing, the employee testified that between 1992 and 1997, he earned approximately $40,000.00 annually (with a little increase each year), when taking into consideration the wages he earned from the employer and the reinsurance benefits he received during layoff periods.  (T. 114.)  By extrapolating the judge=s calculated average weekly wage of $1,074.18 earned during approximately nine months, plus an estimated $331.00  in weekly reinsurance benefits anticipated for a estimated three-month layoff, the employee=s wage would actually exceed the $40,000/year earnings  to which he had testified.  This evidence supports the compensation judge=s rejection of the employee=s proposed average weekly wage.

 

We therefore affirm the compensation judge=s finding that the employee=s weekly earnings averaged $987.30 during the 26 weeks prior to his May 16, 1997 injury.  The figures used by the compensation judge are substantially supported by the evidence, and the compensation judge applied the proper formula required by the statute.  The compensation judge=s calculation was therefore not clearly erroneous, and we affirm.

 

Calculation of Value of Lodging Expenses

 

As to the calculation of the augmentation of the employee=s wage by his motel expenses, the compensation judge determined that the average motel cost incurred by the employee totaled $86.88 per week.  The compensation judge determined that the $86.88 per week for lodging, necessitated as a result of performance of the employee=s work duties, is includable in arriving at the employee=s average weekly wage, pursuant to Larson v. CleanSoils, Inc., 541 N.W.2d 591, 54 W.C.D. 25 (Minn. 1996).

 

The compensation judge determined that the employer and insurer paid an average of $86.88 per week for the employee=s lodging while he resided out of town for his job.  The compensation judge arrived at that figure by utilizing the information provided in Respondent=s Exhibit 6, comprised of lodging receipts documenting expenses incurred by the employee between November 1996 and May 1997, and the employer=s calculations of the average weekly lodging expenses.  The compensation judge adopted those calculations as accurate.  The compensation judge based his finding of the weekly lodging expenses upon the testimony presented by the employee, exhibits (including motel receipts), and written arguments presented by the parties to the compensation judge.

 

The compensation judge addressed the nature of the motel payment records.  The compensation judge stated that:

 

Although the motel payment records submitted as Respondent=s Exhibit 6 are less than ideal they comport with the employee=s testimony with regard to the general hotel costs incurred.  On average, for the approximate 26 weeks prior to the injury of May 16, 1997 the average motel costs incurred by the employee totaled $86.88 per week.

 

(Finding No. 9.)  The compensation judge again addressed those payment records in his memorandum, stating that:

 

With regard to the specific calculations, the state of the evidence with regard to those motel expenses is rather imprecise.  However based on the employee=s testimony it does appear that the information provided to the Court in Respondent=s Exhibit 6 fairly accurately reflects the value of the lodging to the employee during the 26 week period of time prior to the injury of May 16, 1997.  As such the Court has adopted the calculations as found in Respondent=s Exhibit 6.

 

(Memorandum, p. 11.)

 

The employee also testified that his daily motel expenses averaged approximately $20.00.  (T. 50-51.)  The employee argues that based on the motel records, the employee was paid $102.92 per week in lodging expenses.  He asserts that the records indicate that the employer paid at least $1,479.19 in lodging expenses on behalf of the employee between November 1996 and May 1997, and that he worked 73 days during the period for which motel expense records are available, which results in an average daily lodging expense of $20.26 ($1,479.19 divided by 73).   Multiplying $20.26 per day times 5.08 days results in an average weekly lodging allowance of $102.92.  Even though the motel expense records provided do not correspond exactly with the 26-week period prior to the injury, the employee contends that those expense records still allow an accurate method of calculating the average daily lodging expense.

 

The employee=s argument has merit, in that it utilizes the same averaging formula applied in Minn. Stat. ' 176.011, subd. 3, that is, dividing the total expenses by the days actually worked.  Whereas there is some parallel between calculating the average weekly wage and average weekly lodging expense, it seems that using that method here to calculate lodging expenses would be inaccurate because it utilizes a period of 73 work days, rather than the 61 days the employee actually worked during the 26-week period preceding the injury.  This formula, therefore, does not exactly conform to the 26-week period required by the statute to calculate the average earnings prior to the injury.

 

Based upon our review of the documentary evidence and the testimony concerning this issue, we believe that the compensation judge did not abuse his discretion by using a weekly rate rather than a daily rate, as the payment records were not clear enough for the compensation judge to calculate a daily rate over the 26-week period.  The compensation judge=s finding of $86.88 per week in lodging expenses to be substantially supported by the record, and we therefore affirm.

 

Service of Maximum Medical Improvement

 

The compensation judge found that the employee was served with a maximum medical improvement (MMI) report on August 4, 1998.  (Finding No. 35.)   On that date, the employer served the employee with a Notice of Benefit Payment which stated that Dr. Jed Downs=s July 1, 1998 medical report, a copy of which was attached, indicated that the employee had reached MMI, and that payment of 17.5 percent permanent partial disability would be made on a weekly basis.  The employee appeals, arguing that there is no evidence that the treatment notes of Dr. Downs were actually attached to that Notice of Benefit Payment which was served on the employee. 

 

On August 3, 1998, a letter was sent to the employee by a representative from the insurer, advising him that Dr. Downs had indicated that he had reached MMI.  Attached to that letter was a copy of a Report of Work Ability, completed by Dr. Jed Downs on July 1, 1998.  This report did not indicate an opinion on MMI, but listed a diagnosis, advised that the employee could return to work as of July 1, 1998 within physical work restrictions, and stated that the next scheduled doctor=s appointment was Aas needed.@  (Resp. Ex. 5.)

 

On August 4, 1998, the employee was served with Notice of Benefit Payment, in which the insurer stated that attached to that notice was Dr. Jed Downs=s report dated July 1, 1998.   (Resp. Ex. 4.)  This two-page report outlined Dr. Downs=s assignment of a permanency rating, and his  opinions that he did not believe any significant improvement in the employee=s function was foreseeable, and that he recommended  no further  treatment at that time.   The compensation judge determined that in this report, A[c]learly Dr. Downs, the employee=s treating physician, was opining maximum medical improvement had been reached.@  (Memorandum, p. 11.)

 

On August 5, 1998, the employee=s attorney mailed a letter to the Department of Labor & Industry, amending the employee=s claim petition Ato include a claim for 17.5% permanent partial disability pursuant to the attached records of Dr. Jed Downs.@^[5]  (Emphasis added.)

 

The employee denies being served with notice of MMI on August 4, 1998.  He concedes a later date for service of MMI, October 14, 1998, when the September 28, 1998, medical report of Dr. Segal was served on the employee.  (Resp. Ex. 2.)  However, the employee disputes that the July 1, 1998, report by Dr. Downs was attached to the Notice of Benefit Payment.  The employee argues that there is no concrete evidence that the report was attached, and that, as a result, the notice fails to provide a valid notice of MMI.   The employee testified that he recalled receiving the Notice of Benefit Payment but did not recall whether there were any attachments.  (T. 68.)  The employee acknowledges seeing the July 1, 1998 notes of Dr. Downs at some point, but does not recall when that might have been.  (T. 98.)  The employee therefore argues that in the absence of any evidence, the compensation judge=s finding that Dr. Downs=s July 1, 1998 report or notes were attached to the Notice of Benefit Payment is unsupported by the evidence and must be reversed, since no documentary evidence establishes the service date.

 

By contrast, the employer and insurer argue that the Notice of Benefit Payment refers to the Aattached report@ of Dr. Downs.  The employer and insurer also argue that there is no evidence that the report was not attached, only the employee=s testimony that he really does not remember if it was or was not attached. At oral argument, counsel for the employer and insurer argued that the insurer=s letter of August 3, 1998, the August 4th Notice of Benefit Payment, and the August 5th letter, along with Dr. Downs=s report were all served on the employee, which indicates that the employee received Dr. Downs=s report through at least one of the served documents.^[6] 

 

The compensation judge noted in his memorandum that

 

Although the employee could not recall whether Dr. Downs= July 1, 1998 treatment note was attached to the Notice of Benefit Payment which he admits he received the employee did indicate that he at some point in time had seen Dr. Downs= notes but could not recall when he had seen that note.

 

(Memo. p. 11.)

 

The compensation judge reviewed the available evidence, exhibits and the employee=s testimony, and determined that the report was attached as indicated on the Notice of Benefit Payment.   Based upon the record, the compensation judge could reasonably determine that the employee was served with a valid notice of maximum medical improvement on August 4, 1998.  Because the compensation judge=s finding of an August 4, 1998 MMI service date is substantially supported by the evidence, we affirm.