GREGORY W. ZURN, Employee, v. THUNDERBIRD HOTEL and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 19, 2000

                                                                             

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.  Substantial evidence supports the compensation judge=s finding that the employee=s loss of earning capacity was causally related to the employee=s 1992 work injury even where the employee had worked at a higher paying job after his injury.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s finding that the employee had sustained a loss of earning capacity where the employee had found a lower paying job on his own after losing a job which paid more than his pre-injury position.

 

Affirmed.

 

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

Compensation Judge: Peggy A. Brenden

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee had sustained a loss of earning capacity that was causally related to his work injury.  We affirm.

 

BACKGROUND

 

On July 9, 1992, Gregory Zurn, employee, sustained a work-related low back injury while working as an assistant chief maintenance worker for the Thunderbird Hotel, the employer, which was insured for workers= compensation liability by State Fund Mutual Insurance, the insurer.  Born on January 14, 1954, the employee was 38 years old when injured.  On his date of injury, the employee=s average weekly wage was $703.85.  The employee returned to work with restrictions, but stopped working for the employer in September 1993 because the commute from his home in Belle Plaine, Minnesota, to the employer=s location in Bloomington, Minnesota, aggravated his low back condition.  The employee found work as a maintenance supervisor at Empak/Emplast, a plastic molding facility, in November 1993.  He was able to do the maintenance work and the work was within his restrictions.  The employee worked for Empak/Emplast until June 1997, when his employment was terminated for failing to properly document his absence from work when he tried to see a doctor.  During the time that the employee worked for Empak/Emplast, he earned a weekly wage higher than he had earned while working for the employer; by 1997, the employee earned $798.80 per week.

 

After he was terminated from Empak/Emplast, the employee conducted a job search on his own within a twenty mile radius of his home.  The employee filled out applications, looked in the newspapers, used computer searches, and utilized the state job search hot line in looking for work.  The employee testified that he had a couple of dozen interviews, but was not offered a job until May 1998 when he started working as a store manager for Car-Co, an auto parts store, which is located only five minutes away from his home.  The employee was hired at a beginning wage rate of $8.00 per hour, works approximately 38 to 51 hours per week, and currently earns $9 per hour.

 

On September 16, 1998, the employee filed a claim petition for temporary partial disability benefits from May 5, 1998, and continuing.  The employee did not request rehabilitation assistance.  A hearing was held on January 19, 2000.  The compensation judge found that the employee=s earnings at Car-Co accurately reflected his earning capacity during the claimed time period and that the employee=s work injury was a substantial contributing factor in the employee=s diminished earning capacity during that time.  The employer and insurer appeal.

 

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 (1998).  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).

 

DECISION

 

In order to be eligible for temporary partial benefits, the employee must establish a reduction in earning capacity which is causally related to the work injury.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48 (Minn. 1988).   An employee's entitlement to temporary partial disability benefits is based on the difference between the employee's wage on the date of injury and the wage the employee is able to earn in his or her partially disabled condition.  Minn. Stat. ' 176.101 (1992).  "[T]emporary partial benefit awards are generally based on post-injury wages because post-injury wages are presumptively representative of an employee's reduced earning capacity.  In appropriate circumstances, however, this presumption can be rebutted with evidence indicating that employee's ability to earn is different than the post-injury wage."  Einberger v. 3M Co., 41 W.C.D. 727, 739 (W.C.C.A. 1989) (citation omitted).  In order to establish an earning capacity different from actual earnings, there must be more presented than evidence of a hypothetical job paying a theoretical wage.  Saad v. A.J. Spanjers Co., 42 W.C.D. 1184, 1194 (W.C.C.A. 1990); Patterson v. Denny's Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989).

 

The employer and insurer argue that the employee=s loss of earning capacity was not causally related to his work injury since the employee was able to find work which paid more than his pre-injury position for more than three years after the accident.  The employee was still able to perform that job, which was within his physical work restrictions, and testified that had he not been terminated, he still would be working for Empak/Emplast.  After a vocational evaluation conducted at the request of the employer and insurer, Ms. Jane Moncharsh opined that the employee Ahas not sustained a loss of earning capacity as a result of his July 9, 1992 work injury.  In fact, his employment at Empak demonstrated that he is able to obtain, perform, and maintain comparable work within his restrictions subsequent to the injury.  It is my opinion that his employment at Empak is reflective of his actual earning capacity.@  (Er. Exh. 1.)

 

Therefore, the employer and insurer argue that the employee=s loss of earning capacity resulted from reasons unrelated to his work injury, termination due to a dispute regarding the employee=s absence from work.  A discharge for misconduct or a voluntary quit by an employee only suspends his right to wage loss benefits until the employee demonstrates that his work-related disability was the cause of his inability to find or hold new employment.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995); see also Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989) (discharge for misconduct before Oct. 1, 1995); Johnson v. State, Dep't of Veterans Affairs, 400 N.W.2d 729, 39 W.C.D. 367 (Minn. 1989) (voluntary quit).  This determination is made "upon consideration of the totality of the circumstances, including the usual work search requirements."  Marsolek, 438 N.W.2d at 924, 41 W.C.D. at 968.  The employer and insurer argue that the circumstances in this matter are analogous to cases wherein employees= reduced earning capacities were attributed to factors other than work-related injuries.  See, e.g., Borchert v. American Spirit Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998) (loss of overtime attributable to economic conditions relative to the employer=s business); Arouni v. Kelleher Construction, Inc., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988) (employee rejected light-duty job offer within his restrictions); Firkell v. Dresser-Rand Co., et al., slip op. at 4 (W.C.C.A. Aug. 2, 1993) (Sunday overtime eliminated by employer).  However, the reasons for the employee=s termination from his employment with Empak/Emplast do not bar his claim for temporary partial benefits in view of the factors considered by the compensation judge.^[1]

 

The compensation judge noted that the employee continues to have work restrictions as a result of his July 1992 work injury, and that the Aemployee=s inability to drive long distances, to lift, carry, bend, stoop, and twist have a significant impact on his ability to find work as well as his ability to carry on the full range of job responsibilities associated with his date of injury occupation.@   (Memo. at 4.)  The employee conducted a job search and found work within his restrictions at a lower wage rate.  The compensation judge determined that the employee had demonstrated a causal relationship between his work injury and his wage loss.  Substantial evidence, including the employee=s testimony and his medical records, support the compensation judge=s finding that the employee=s work injury was a substantial contributing cause in limiting the employee=s job possibilities, and we affirm. 

 

The employer and insurer also argue that the employee=s earnings at Car-Co do not accurately reflect his earning capacity.  The employer and insurer=s expert, Ms. Moncharsh, supported this position and stated that a labor market survey revealed jobs within his restrictions and skills which paid a higher wage, such as maintenance supervision, boiler operator, service writer, parts clerk at a dealership, manager in a larger organization, machine tending, operating and assembly areas.  Ms. Moncharsh indicated that there was Aa wide variety of jobs in the sedentary, light, medium physical demand categories that would utilize his knowledge of repair work, mechanic work, supervisory ability, in parts management or city desk work, purchasing or preparing bids, and his knowledge of the equipment related to maintenance and mechanical needs.@  (Er. Exh. 1.)  Ms. Moncharsh recommended that the employee conduct a diligent job search for alternative employment. 

 

The compensation judge could reasonably conclude that the vocational report and testimony offered into evidence by the employer and insurer did not rebut the presumption that the employee=s actual earnings were an accurate reflection of his earning capacity.  The employer and insurer did not present specific evidence of an actual higher-paying job available to the employee since he began working at Car-Co in May 1998.  Although Ms. Moncharsh testified that she conducted a labor market survey and identified employers whom Ait would appear . . . had work that may be consistent with [the employee=s] physical restrictions,@ the employee was not notified of these potential employers, and Ms. Moncharsh was unable to state whether those employers would have hired the employee, as those employers did not review any specific information regarding the employee. (Er. Ex. 2.)   Although this vocational information provided some evidence of actual jobs potentially available to the employee, this information was not sufficient to rebut the presumption that the employee=s actual earnings were an accurate reflection of his post-injury earning capacity.  See Saad, 42 W.C.D. at 1184; Patterson, 42 W.C.D. at 875.  Therefore, we affirm.