TERRY L. WEST, Employee/Appellant, v. RIE COATINGS and REINSURANCE ASS'N OF MINN., Employer-Insurer, and TOP NOTCH TREE SERV. and MINNESOTA ASSIGNED RISK PLAN/BERKLEY ADM'RS, Employer-Insurer, and BLUE CROSS/BLUE SHIELD OF MINN., MN DEP'T OF LABOR & INDUS./VRU, CENTER FOR DIAGNOSTIC IMAGING, and NORTHERN STAR THERAPY, LTD., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

MARCH 22, 2000

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee=s treating surgeon stated that the employee was able to work full-time but the employee chose to be self-employed, which involved only part-time work, and the employee made no attempts to look for other work, the compensation judge was not clearly erroneous in finding that the employee had not proved that his loss of earnings was causally related to his injury.  For the first two weeks of the employee=s return to work, when his surgeon stated he could work part-time, the compensation judge should have considered an award of temporary partial disability benefits.

 

Affirmed in part, reversed in part, and remanded.

 

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

Compensation Judge: Rolf G. Hagen

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employee appeals from the compensation judge=s determination that the employee was not entitled to temporary partial disability from March 15, 1999 through the date of hearing on May 19, 1999.  We reverse the denial with respect to the first two weeks of that period, but affirm as to the remainder of the period.  We remand for a determination concerning the first two weeks.

 

BACKGROUND

 

The employee, Terry L. West, was hired by RIE Coatings in its production department in Eden Valley, Minnesota, in February of 1996.  On May 16, 1996, the employee claimed that he injured his neck and low back while pulling open oven doors.  At the time of the injury, the employee was approximately 40 years of age and had a weekly wage of $320.00.  The employer and insurer denied liability, and after the institution of a workers= compensation claim by way of a claim petition the matter came on for hearing before Compensation Judge Rolf Hagen on November 7, 1996.  In his Findings and Order of December 16, 1996, the compensation judge found that the employee had sustained a personal injury on May 16 as a result of his work activities for RIE which affected his neck, shoulder blades and mid and low back.  (Findings & Order of 12/16/96, Finding 3.)  The employee was awarded temporary total disability for several brief periods and medical benefits, but the request for a rehabilitation consultation was denied.  The employee appealed the denial of temporary total for certain periods, a determination with respect to the permanent or temporary nature of his injuries and the denial of a rehabilitation consultation.  In a decision issued on May 20, 1997, the Workers= Compensation Court of Appeals affirmed the denial of temporary total disability, vacated any finding concerning the permanent or temporary nature of the injury and vacated as premature the denial of the rehabilitation consultation.

 

In the fall of 1996, the employee returned to work for a three-week period with the Tree Service Company.  He operated a log moving crane in North Carolina, helping clean up damage from a hurricane.  (T. 97.)  He did not work again until approximately June 14, 1997, when he again was employed by the Tree Service Company for slightly more than a week.  The employee testified that his work for this firm was limited to the operation of a boom crane.  (T. 100, 124, 133, 139, 141.)  On June 27, 1997, the employee commenced work for the Top Notch Tree Service, the second employer in this case.  (T. 101.)  The employee testified that at the time of his hiring, he advised this employer that he had sustained an earlier injury while employed at RIE and had restrictions on his ability to function.  As a result, it was his understanding that his work activities were to be limited to the operation of a knuckle boom crane and driving the truck on which the crane was located.  The employee testified, however, that as a result of occasions when the knuckle boom truck was in for repairs, he was required to perform activities which exceeded his restrictions.  He stated that on August 20, 1997, while working outside of his restrictions, he sustained an injury to his low back.  Following the injury, the employee did not return to work for the employer and was out of work until March 1999.  (T. 102-04.)

 

During the interim, the employee sought treatment from several orthopedic specialists.  Initially, he was treated conservatively with physical therapy, medication and epidural injections.  Several MRIs were taken of the employee=s lumbar spine, which showed that he had degenerative disc disease at spinal levels L3-4 and L4-5.  The employee sought rehabilitation services through the Department of Labor and Industry=s vocational rehabilitation unit.  In January 1998 he was assigned the services of Robert Harlander-Locke, a QRC.  In addition, in May 1998, the employee received the services of job placement vendor Jim Broderick.  Nevertheless, the employee was unable to find employment within his restrictions. 

 

On October 9, 1998, the employee saw  Dr. Joel C. Shobe, an orthopedic surgeon, on referral from his family doctor.  Dr. Shobe requested a discogram, which was performed on October 30, 1998.  As a result of the discogram, Dr. Shobe recommended that the employee undergo a fusion surgery at spinal levels L3-4 and L4-5, which surgery took place on December 21, 1998.

 

Following surgery, the employee was seen by Dr. Shobe on December 30 and January 27.  On each occasion the employee was apparently doing well on an Aover all basis.@  He complained of some back pain but reported that his symptoms Aimproved from what his symptoms had been.@  (Pet. Ex. B, depo. Dr. Shobe, p. 13.)  The employee was scheduled to see Dr. Shobe on March 29, 1999, but because the doctor=s wife was having a child the employee was seen by an associate, Dr. Steven Mulawka.  At that time the employee indicated that he was having some pain and occasionally took pain medication.  He reported to Dr. Mulawka that he had commenced working on a part time basis and was able to avoid any significant bending and twisting.  There is no indication in the medical records from Dr. Shobe or Dr. Mulawka concerning what restrictions would be imposed on the employee=s ability to work.  In Dr. Shobe=s deposition, taken on May 11, 1999, however, he indicated that generally he would have restricted an employee who had undergone this type of fusion surgery from returning to any work for at least three months.  He stated that generally he would then only permit an employee to return to light duty work which did not involve significant bending or twisting or the lifting of heavy weights and that those restrictions would be permanent.  He stated that generally he would permit an employee to return to work full time, 40 hours per week, at this light duty after a period of approximately two weeks of part time work.  (Pet. Ex. B, depo. of Dr. Shobe, pp. 22-23.)

 

The employee testified that since the surgery his condition has improved.  He stated that he can walk, stand and do other activities with less discomfort.  (T. 114-15.)  He testified that in early March 1999, he was investigating the possibility of returning to work by purchasing a tree service from a relative.  He indicated that this transaction did take place in the middle part of March.  He and a partner borrowed $50,000 from the Paynesville Community Bank.  This money was paid to the owners of the Western Tree Service Company.  The employee testified that during the period from the commencement of operation under the new ownership until the date of hearing (May 19, 1999), the tree service had performed a number of jobs.  He stated that as a result of his ownership position he was able to limit his work activities to operating the knuckle boom and driving the truck, activities which did not substantially aggravate his back condition.  He testified that as a result of a lack of demand for business in the spring that the amount of work he was required to perform was limited to a couple of days per week.  (T. 117.)  He stated that during the approximately two-month period prior to the hearing the company=s gross receipts were $13,656.34.  (T. 120-01; Pet. Ex. H.)  During that period he and two other persons were each paid $2,000 in profits or wages.  (T. 117.)   The payment to the employee was made on May 17, 1999, in a one-time transaction.  (Pet. Ex. I.)  The employee testified the tree service was Ajust getting started up.@  He further stated that Awe=re surviving is what we=re doing.@  (T. 116.)  He did, however, anticipate that the demand for the services of his company would increase during the summer and fall.

 

Following his alleged injury on August 20, 1997, the employer Top Notch and its insurer denied liability.  As a result, the employee filed a claim petition on October 13, 1997, claiming entitlement to temporary total disability and medical benefits as a result of the 1996 and 1997 injuries.  Subsequently, the employee amended his claim to request payment for the fusion surgery and treatment by Dr. Shobe, together with a claim for temporary total disability following surgery.  Apparently on the date of hearing, the employee also claimed entitlement to temporary partial disability from approximately mid March 1999 to the date of hearing based on earnings from his tree service.

 

The matter came on for hearing before Compensation Judge Rolf Hagen on May 19, 1999.  In his Findings and Order served and filed on July 16, 1999, Judge Hagen found that the employee had sustained a low back work injury on August 20, 1997, which, along with the 1996 injury, was a substantial contributing cause of his disability after August 20, 1997, and his need for medical services, including the two-level fusion of December 21, 1998.  The compensation judge awarded temporary total disability benefits for certain periods (November 4, 1996 - February 15, 1997, August 20, 1997 - March 5, 1998, and May 29, 1998 - March 15, 1999), but denied them for other periods.  The compensation judge also denied the employee=s claim for temporary partial disability benefits from March 15, 1999 to the date of hearing.  It is from this latter finding that the employee has appealed.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@  Id.

 

DECISION

 

On appeal, the employee objects to the compensation judge=s denial of temporary partial disability based on the employee=s self-employment in his tree service partnership.  In addition, the employee objects to any implication from the compensation judge=s decision that the employee would be denied temporary partial disability benefits as a result of his self-employment activities for any periods following the date of hearing, May 19, 1999.

 

Post Hearing Effect of Compensation Judge=s Decision

 

This latter concern by the employee apparently arises from the compensation judge=s statement of the temporary partial disability issue and his Order 6.  These statements do suggest that the compensation judge intended that his decision would have an effect after the date of hearing.  They are set forth as follows:

 

Whether the employee is entitled to temporary partial disability benefits from March 15, 1999 to present and continuing and in connection therewith, whether the employee sustained a loss of employability/reduction in earning capacity as a result of the admitted May 16, 1996 and/or alleged August 20, 1997 work injury(ies).

 

(Findings & Order of 7/16/99, Issue 7, p. 4, emphasis added.)  In Order 6, the compensation judge states:

 

It is further ordered that employee=s claim of entitlement to temporary partial disability benefits from March 15, 1999 to May 19, 1999 (date of hearing), and thereafter, as may be warranted, is in all respects denied.  (Emphasis added.)

 

We note, in the compensation judge=s findings of fact, however, that he does not make any statements with respect to the employee=s entitlement for periods following May 19, 1999.  In Finding 26, the compensation judge states as follows:

 

That notwithstanding employee has shown a loss of income, employee has failed to prove, by a preponderance of the evidence, that he is entitled to temporary partial disability benefits during the period from March 15, 1999 to May 19, 1999 (date of hearing) because employee has failed to demonstrate that his actual earnings during that period are a true and accurate reflection of his earning capacity.

 

In addition, with respect to his denial of temporary partial disability, the compensation judge made the following comments in his memorandum:

 

Temporary partial disability benefits were denied because the employee had failed to prove, by a preponderance of the evidence, that he had his self-employment was a true and accurate reflection of his earning capacity [sic]. . . . 

 

While it is admirable that the employee wants to try to improve himself it appears that the employee jumped into this self-employment partnership pre-maturely (at least from a workers= compensation prospective) and without having just conducted a reasonable and diligent job search.  These employer=s/insurer=s cannot be expected to pay temporary partial disability benefits under these circumstances.

 

Based on Finding 26 and the compensation judge=s comments in the memorandum, we do not interpret his denial of temporary partial disability to have any effect following May 19, 1999.  He indicated in his finding that temporary partial disability benefits after that date would be awarded only if they were warranted.  We have long held that a compensation judge=s determination with respect to wage loss benefits would have no effect on periods following the date of hearing.  If the employee continues to work in his self-employment and earns substantial wages, and satisfies all of the other requirements for entitlement to temporary partial disability, he would be free to make a claim for such benefits, without being affected by the compensation judge=s holding with respect to the period prior to May 19, 1999.

 

Temporary Partial Disability

 

In order for an employee to be entitled to temporary partial disability benefits, four factors are necessary:  (1) there must be a physical disability; (2) the disability must be temporary in nature; (3) the employee must be able to work subject to the disability; and (4) there must be an actual loss of earning capacity that is causally related to the disability.  Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 46-47, 245 N.W.2d 451, 454, 29 W.C.D. 86, 91 (1976).  Temporary partial disability benefits are not appropriate for periods where the employee earns Asporadic and insubstantial income [in]sufficient to establish gainful employment entitling [the] employee to [such] benefits.@  Hubbell v. Northwoods Panelboard, 45 W.C.D. 515, 517 (W.C.C.A. 1991).  The employee has the burden of establishing a diminution of earning capacity that is causally related to the disability.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988).  If an employee is released to work on a full time basis but works only part time, temporary benefits may still be available if the part time position is all that the employee is able to obtain because of the disability.  See DeNardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 630-31 (Minn. 1990).  Whether the inability to obtain full time employment is the result of the personal injury is generally a question of fact for the compensation judge, and any relevant evidence may be considered, including the nature and extent of the employee=s job search.  Stauty v. Luigino=s, Inc., slip op. (W.C.C.A. Dec. 19, 1994).

 

The issue resolved by the compensation judge was whether the employee had presented sufficient evidence to show a causal relationship between the effects of his personal injury and the loss of earnings.  The compensation judge relied on the fact that the employee chose to limit himself to self-employment, which, during the period in dispute, was only providing part-time work.  The compensation judge noted that the employee=s choice included not looking for other work instead of or to supplement his self-employment earnings.

 

The issue of causation is one of fact.  The burden to establish the causal relationship is on the employee.  The issue on appeal is whether the compensation judge was clearly erroneous in his resolution of the causation issue.  We believe he was not.  Based on the limited facts presented, the compensation judge was reasonable in failing to be persuaded that the loss of earnings was related to the employee=s disability.  The employee testified that other than his limited self-employment he made no effort to find work.  We note that the employee did not testify that the limited self-employment activity he did accomplish incapacitated him from additional work.  In addition, the employee=s treating physician, Dr. Shobe, testified that the employee would have been able to return to full-time work after one to two weeks of part-time work.  Based on this evidence, the compensation judge reasonably could find that the employee failed in his threshold burden of showing a causal relationship between his disability and his earnings.^[1]

 

It is clear, from Dr. Shobe=s deposition testimony, that it would have been appropriate for the employee to be working only part time during the first two weeks of his return to work.  Because the employee=s actual work hours matched what was medically appropriate for the first two weeks of his self-employment, we believe that an award of limited temporary partial disability benefits should have been considered by the compensation judge.  We remand the matter to the compensation judge for a determination of what portion of the employee=s earnings that should be attributable to the first two weeks of part-time self-employment.  If that income is not insubstantial it shall be presumed to be equivalent to the employee=s earning capacity and shall be the basis for an award of temporary partial disability benefits.