ATEF S. YACOUB, Employee/Appellant, v. AMERICAN NAT=L INS. and CNA INS. CO., Employer-Insurer, and ST. PAUL FIRE & MARINE INS. CO., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 9, 2000

 

HEADNOTES

 

PRACTICE & PROCEDURE - REMAND.  The compensation judge properly denied the September 8, 1999, motion to intervene of DOLI/VRU, covering services provided between July 21 and September 28, 1999, and submission into evidence of a rehabilitation consultation report prepared September 1, 1999, where the order on remand directed the judge to make findings on the record as it existed at the close of the May 29, 1998, hearing.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evi­dence supports the compensation judge=s determination that the employee did not have a reasonable expectation of a return to work with the employer and failed to make reasonably diligent search for work between January 29 and October 4, 1997, and his denial of temporary total disability benefits on that basis.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s denial of temporary partial disability benefits based on the employee=s part-time earnings from March 21 through April 20, 1998, based on his minimal job search efforts and his demonstrated ability to obtain additional work within a short period of time.  The compensation judge=s denial of temporary partial disability benefits after April 21, 1998, is, however, clearly erroneous where the employee was working full-time, 44 hours a week, in two part-time jobs at a wage loss.  The employee was entitled to the presumption of earning capacity, and the em­ployer and insurer failed to present any evidence to rebut the presumption.

 

Affirmed as modified, in part, and reversed and vacated in part.

 

Determined by Johnson, J., Wilson, J., and Wheeler, C.J.

Compensation Judge:  Rolf G. Hagen

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s findings denying the employee=s claim for temporary total disability benefits from January 29 through October 4, 1997, and his claim for temporary partial disability benefits from and after March 21, 1998.  The employee also appeals the compensation judge=s order denying the September 8, 1999 motion to intervene of the Department of Labor and Industry/Vocational Rehabilitation Unit (DOLI/ VRU), and the judge=s refusal to allow submission of a rehabilitation consultation report completed September 1, 1999, into evidence.  We affirm as modified, in part, and reverse and vacate in part.^[1]

 

BACKGROUND

 

Atef S. Yacoub, the employee, began working as a home service agent for the employer, American National Insurance, in 1983.  The job consisted primarily of driving to the  homes and offices of present and potential customers to collect premiums and sell insurance policies.  After about a year and a half, the employee was promoted to a sales manager.  In 1987, he transferred to a dif­ferent district where he again worked as a home service agent.  In 1992, the employee left the em­ployer to go into business for himself.  He was, initially, a sales agent for Franklin Life Insurance and then became an agent for Bankers Life & Casualty.  On July 18, 1996, the employee returned to work as a home service agent for the employer.

 

On December 14, 1996, the employee was injured in a motor vehicle accident in the course and scope of his employment.  The employee was given a ticket at the scene of the accident for driving after suspension of his driver=s license.

 

Following the accident, the employee received treatment from Donald Jensen, a chiro­prac­tor, for neck, low back and arm pain and weakness.  On January  2, 1997, Dr. Jenson took the employee off work from and after January 3, 1997.  The employee did not im­prove, and Dr. Jensen referred the employee to Dr. Soren Ryberg, a neurologist.  Dr. Ryberg referred the employee for an MRI scan, and prescribed Robaxin, Ibuprofen, and Tylenol #3.  The MRI scan, completed on January 21, 1997, revealed a moderate central and left-sided disc herniation at C6-7, impinging on the left C7 nerve, with degenerative disc disease from C3-4 to C5-6.

 

On January 28, 1997, Dr. Ryberg released the employee to return to work beginning January 29, 1997, restricting the employee to two hours of driving per day.  The employee continued to report neck pain with increasing pain and weakness in the left arm.  Dr. Ryberg referred the employee to Dr. Gaylan Rockswold, a neurosurgeon, who examined the employee on March 24, 1997.  Dr. Rockswold diagnosed a significant left C7 radiculopathy, confirmed by MRI scan, and recommended surgery.  On June 24, 1997, the employee advised Dr. Ryberg he had decided against proceeding with surgery.   The doctor noted some improvement at that time, although the employee continued to exhibit symptoms of a C7 radiculopathy.  Dr. Ryberg referred the employee for physical therapy, and relaxed his restrictions, allowing driving up to 3 to 4 hours per day, effective for two months.  Shortly thereafter, by letter dated July 9, 1997, the employee was advised the employer had requested the Minnesota Insurance Department to cancel his appointment as an insurance agent with the em­ployer effective July 9, 1997.

 

On or about October 4, 1997, the employee began working for Sandwich Express, a business owned by his wife, from whom he was separated.  His employment with Sandwich Express was terminated on February 1, 1998.^[2]  On October 8, 1997, the employee was examined by Dr. Joel Gedan, a neurologist, at the request of the employer and insurer.  Dr. Gedan concluded the employee had sustained a disc herniation at C6-7 with a left C7 radiculopathy as a result of the December 14, 1996 motor vehicle accident.  Dr. Gedan noted the employee=s symptoms had improved, and opined the employee could work a full eight hour day, with restrictions of no lifting over 50 pounds, avoid remaining in a fixed position for more than one hour, and avoid prolonged neck flexion or overhead work with neck extension.

 

In a report dated December 8, 1997, Dr. Ryberg diagnosed a chronic cervical strain and left-sided disc herniation at C6-7 with associated C7 radiculopathy as a result of the December 14, 1996 motor vehicle accident.  He assigned a 12 percent permanent partial disability rating for the neck injury.^[3]  Dr. Ryberg further opined that the employee had permanent restrictions including no lifting over 35 pounds, avoid repetitive bending and twisting of the neck, avoid repetitive work with arms outstretched or above the shoulders, and avoid static positioning of the neck.  In a report dated April 1, 1998, Dr. Gedan agreed with the 35 pound lifting restriction, and also gave a 12 percent permanency rating for the cervical spine injury.

 

In late January 1998, the employee obtained part-time work as a cashier at North Oaks Amoco, beginning on March 1, 1998.  At the end of March, the employee obtained a second part-time job as a security guard with Sims Security in Roseville, beginning in mid-April 1998.  Between the two jobs, the employee was working full-time, 44 hours per week, at the time of the hearing.

 

On June 25, 1997, the employee filed a claim petition seeking temporary total and perma­nent partial disability benefits.  The claim was later amended to include a claim for temporary partial disability benefits.  St. Paul Fire and Marine Insurance Company was granted intervention in an order issued on November 7, 1997.^[4]  The case was heard by a compensation judge at the Office of Administrative Hearings on May 29, 1998.  In a findings and order served and filed July 1, 1998, the compensation judge concluded the employee was engaged in a prohibited act at the time of the accident, that is, driving with a suspended license, and denied benefits.  In a decision served and filed January 12, 1999, this court reversed and remanded the matter to the compensation judge for determination of the remaining issues on the existing record.^[5]

 

The matter was resubmitted to the compensation judge with the filing of briefs by the parties on August 20, 1999.  No new evidence was received or considered.  On October 14, 1999, the compensation judge issued an order denying the motion to intervene of DOLI/VRU, filed on September 8, 1999.  In a findings and order on remand, served and filed October 15, 1999, the compensation judge found the employee had sustained a permanent personal injury to the cervical spine in the nature of a left-sided disc herniation at C6-7 with chronic C7 radicular pain, and awarded permanent partial disability of 12 percent.  The compensation judge found the employee was medically restricted from work from January 9 through January 28, 1997, and awarded temporary total dis­ability benefits during this period.  The compensation judge denied temporary total benefits from January 29 through October 4, 1997, and denied the employee=s claim for temporary partial disability benefits from and after March 21, 1998.  The employee appeals from the denial of wage loss benefits.

 

STANDARD OF REVIEW

 

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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be af­firmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  Similarly, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Motion to Intervene/Rehabilitation Consultation Report

 

The employee appeals the October 14, 1999 order denying the September 8, 1999 motion to intervene of DOLI/VRU and the compensation judge=s refusal to allow submission of the September 1, 1999 rehabilitation consultation report of QRC Ed Spitler of DOLI/VRU.  The compensation judge concluded that neither the motion to intervene nor the rehabilitation consultation report were properly before him since the order on remand directed him to make findings on the record as it existed at the close of the May 29, 1998 hearing.  We agree.  The DOLI/VRU intervention claim covers services provided between July 21 and September 28, 1999.  The services provided included QRC Spitler=s rehabilitation consultation investigation and report.  Both occurred well after the close of the record in this particular proceeding.^[6]  We, therefore, affirm.

 

Temporary Total Disability

 

The employee appeals the compensation judge=s denial of temporary total disability benefits from January 29 through October 4, 1997.  The compensation judge found the employee was released to return to work but failed to conduct any job search during this period.  We affirm.

 

As a general rule, an employee who has been released to return to work must prove total disability by showing that work within his restrictions is not available.  That there is no work available within the employee=s capabilities is demonstrated by a reasonable and diligent job search.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  The employee admitted he was not totally restricted from work from and after January 29, 1997, and that he did not look for alternative employment until October 1997, when he began working for Sandwich Express.  (T. 153-54.)

 

The employee argues, however, that at least until July 9, 1997, there was a reasonable possibility that he would return to work for the employer and he was not required to search for work elsewhere.  There is substantial evidence to support the compensation judge=s determination that the employee did not have a reasonable expectation of returning to work for the employer after January 29, 1997.

 

Where there is a reasonable possibility that an employee will return to work with the employer within a relatively short period, a search for alternative employment may not be practical or reasonable.  Whether the employee had a reasonable expectation of a return to work with the employer is a question of fact for the compensation judge based on the facts and circumstances peculiar to the case.  Redgate, 421 N.W.2d at 734 n.4, 40 W.C.D. at 956 n.4; compare, e.g., Fennig v. Transcom, Inc., slip op. (W.C.C.A. Mar. 19, 1999); Lundberg v. Bemidji Ambulance Serv., slip op. (W.C.C.A. May 22, 1998); Sewell v. Pomps Tire Serv., slip op. (W.C.C.A. May 7, 1996); Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995).

 

Here, Arthur Coates, district manager for the employer, took the employee off the payroll in January 1997.  He testified that an employee who drove after suspension of his license would be terminated immediately and he had previously terminated an agent for driving without a valid license.  (T. 173-74, 186, 190, 193.)  Mr. Coates further testified there was Ano job available in my office@ for someone who could drive only two to four hours a day.  (T.189.) The employee a­greed, testifying Athere is no part-time work for an agent with the company. . . .  So if I can go back to American National and work two hours a day, there=s no job.@  He further acknowledged he could not perform his job duties for the employer without driving.  (T. 82, 96.)  Finally, Mr. Coates testified that he at­tempted to call the employee a number of times.  He stated he left messages on the employee=s answering machine telling him he wanted to talk to him, but the employee did not call back.  He further testified that the employee called the office staff to ask them Awhat was happening,@ but would hang up before he could talk to him.  (T. 182-83.)  Mr. Coates stated he last tried to call the em­ployee in about May 1997 to see how he was feeling, but did not, at that time, call to offer him a job.  (T. 187-88.)  Based on this evidence, the compensation judge could reasonably conclude the employee did not have a reasonable expectation of a return to work with the employer.  We, therefore, affirm.^[7]

 

The employee further argues that given his age, lack of income, difficulty with the English language, and the absence of any rehabilitation assistance, his job search, resulting in part-time work beginning in October 1997, was reasonable under the circumstances.  We are not persuaded.  While the lack of rehabilitation assistance is a factor to consider, its absence does not relieve the employee from the responsibility of making a reasonable effort to find employment as best he can on his own.  See Peters v. Egan & Sons, 54 W.C.D. 262, 275 (W.C.C.A.1996); Mattson v. State, Dep't of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992).  A job search, to be persua­sive of the fact that no work was available for the employee, must be more than perfunctory.  Red­gate, at 743,  40 W.C.D. at 956.  Here, the employee admitted he made no search for work from January 29, 1997, when he was released to return to work until he began working for Sandwich Express on about October 4, 1997.  Because the employee was released to return to work and failed to perform any job search during the period covered by his total disability claim, the compensation judge properly denied the employee=s claim for temporary total disability benefits from January 29 through October 4, 1997.

 

Temporary Partial Disability

 

The employee also appeals the compensation judge=s denial of temporary partial disability benefits from and after March 21, 1998.^[8]  We affirm in part, and vacate and reverse in part.

 

The employee first argues the denial of temporary partial disability benefits Ato [the] present and continuing@ is clearly erroneous, asserting the compensation judge=s determination is limited to the facts as they existed at the time of the May 29, 1998 hearing.  The employer and insurer agree.  (Er-Insr Brief, p. 22.)  A compensation judge does not have authority to make prospective findings awarding or denying continuing payment of wage loss benefits beyond the date of the hearing.  See Donnahue v. Glory Shine Cleaning, Inc., slip op. (W.C.C.A. June 13, 1996).  We, accordingly, vacate that portion of the compensation judge=s findings and order purporting to determine eligibility for temporary partial disability benefits after May 29, 1998.

 

The employee argues that he established a presumptive earning capacity by finding employment at a wage loss from and after March 21, 1998, and is entitled to temporary partial disability benefits from that date through May 29, 1998.  Temporary partial disability benefits are generally payable if the employee has a physical disability, is able to work subject to that disability, and has an actual loss of earning capacity causally related to the disability.  Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 9, 34 W.C.D. 314 (Minn. 1981); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  In this case, the employee has an undisputed 12 percent permanent partial disability as a result of his work injury.  He was released to return to full-time work, with restrictions, and obtained employment beginning around March 1, 1998.  Thus, the dispute in this case is principally whether the employee established a loss of earning capacity causally related to the disability.

 

March 21, 1998 to April 21, 1998

 

The employee obtained part-time work in March 1998 as a cashier at the North Oaks Amoco, working 21 hours a week.  (T. 47-50.)  The compensation judge found the employee failed to conduct a reasonably diligent job search and failed to establish that his reduced earnings fairly reflected his actual earning capacity.  Where a disabled employee is released to full-time work but obtains only part-time work, the employee may be eligible for temporary partial disability benefits if the employee can demonstrate that part-time work was the only work available to him as a result of his disability.  See, e.g., Denardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 631-32 (Minn. 1990).  Whether a wage loss during part-time employment is a result of the employee=s personal injury is generally a question of fact.  While a reasonable and diligent job search is not required for an award of temporary partial disability benefits, the nature and extent of any 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.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).

 

The employee had no restrictions limiting his hours of work by September 1997.  He applied for only six jobs between October 1997 and March 30, 1998, including his job with Sandwich Express.  (T. 153; Pet. Ex. Q.)  He made one job contact in late December 1997, and obtained the job with North Oakes Amoco following his third job application on January 20, 1998.  Although he did not begin working at the Amoco station until March 1, 1998, the employee made only one job contact during the interim.  After he started work for Amoco, he applied for a job with Sims Security in Roseville, on March 30, 1998, and obtained a second part-time job beginning April 21, 1998.   (Pet. Ex. Q.) Given this record, the compensation judge could reasonably conclude the employee failed to establish that his part-time earnings at Amoco through April 20, 1998, were causally related to his injury, and that his part-time wages did not fairly reflect his post-injury earning capacity.  We, therefore, affirm the denial of temporary partial disability benefits from March 21 through April 20, 1998.

 

April 21, 1998 to Date of Hearing

 

It is undisputed that from April 21, 1998 through the date of hearing, the employee worked full-time, 44 hours a week, at a wage loss.  When a disabled employee is released to return to work and obtains full-time employment, the earnings from such employment create a presumption of earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 214 (1960).  The presumption may be rebutted by evidence establishing the reduction in the employee=s earning capacity was unrelated to the disability.  Borchert v. American Spirits Graphics, 582 N.W.2d 214, 215, 58 W.C.D. 316, 318 (Minn. 1998).  The burden of rebutting the presumption is on the employer and insurer.

 

The compensation judge concluded the employee had a duty to conduct a reasonably diligent job search.  (Mem. at 10.)  As noted previously, a job search is not a prerequisite for temporary partial disability.  Moreover, unlike circumstances involving part-time work, an employee generally does not lose eligibility for temporary partial disability benefits by failing to search for higher-paying work when he is already employed full-time. See e.g., Peters v. Egan & Sons, 54 W.C.D. 262 (W.C.C.A. 1996); Tossey v. City of St. Paul, slip op. (W.C.C.A. Dec. 6, 1999); Feller v. Curran V. Nielsen, slip op. (W.C.C.A. Sept. 15, 1997).

 

The employer and insurer argue, however, that the employee=s disability did not preclude a return to his pre-injury occupation of insurance sales agent or other higher paying work, and he was not, therefore, entitled to temporary partial disability benefits.  While the presumption of earning capacity is rebuttable, this court has on numerous occasions cautioned that the employer and insurer must present evidence of appropriate, better paying work actually available in the employee=s labor market to rebut the presumption.  See, e.g., Passofaro v. Blount Constr. Co., Inc., 49 W.C.D. 535 (W.C.C.A.1993)(and cases cited therein).  The record here is devoid of any such evidence.

 

The employer and insurer successfully argued the employee had no reasonable expectation of returning to work as an agent for the employer.  Earnings in a job no longer available to the employee are of little evidentiary value in determining post-injury earning capacity.  See Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).   Nor did the employer and insurer submit any evidence, by way of vocational expert opinion or otherwise, of work as an insurance agent or any other higher paying work, within the employee=s restrictions, available in the employee=s labor market.  The employer and insurer offer only argument and no actual evidence to support their claim. A conclusion that the employee could have obtained higher payer work, as an insurance agent or otherwise, is mere speculation on this record.^[9]  The employer and insurer failed to meet their burden of rebutting the presumption of earning capacity established by the employee=s actual earnings from full-time work, and we reverse the compensation judge=s denial of temporary partial disability benefits from April 21, 1998 through the date of hearing.