DENNIS KLARKOWSKI, Employee, v. HONEYWELL, INC., SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant.

 

WORKERS' COMPENSATION COURT OF APPEALS

DECEMBER 2, 2002

                       

HEADNOTES

 

WITHDRAWAL FROM LABOR MARKET - RETIREMENT; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where it was not unreasonable for the compensation judge to conclude that the employee's earnings at the time of his 2000 surgery were not so insignificant as to constitute a retirement from the labor force, and where there was no dispute that the employee was totally disabled from working during the post-surgical period for which temporary total disability benefits were sought, the compensation judge's award of temporary total disability benefits based on the employee's 1978 work injury during the 2000-2001 period of his post-surgical convalescence was not clearly erroneous and unsupported by substantial evidence, notwithstanding the facts that the employee had ostensibly "retired" from employment with the date-of-injury employer in 1997 and that the parties had stipulated that the employee had self-limited his earnings during the post-"retirement" period preceding his 2000 surgery and so was not entitled to temporary partial disability benefits during that period.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J., and Johnson, C.J.

Compensation Judge:  Bradley J. Behr.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge's finding that the employee had returned from retirement to the labor force between January 1999 and August 9, 2000, and was entitled to temporary total disability benefits from August 10, 2000, to January 22, 2001, consequent to a 1978 work injury.  We affirm.

 

BACKGROUND

 

Dennis Klarkowski [the employee] sustained a work-related injury to his lower back in the course of his employment with Honeywell, Inc. [Honeywell], on April 26, 1978.  On that date, the employee was forty-two years old and was earning a weekly wage of $273.60.  Following the injury, the employer paid certain wage loss benefits, related medical expenses, and compensation for a 15% permanent partial disability of the back.  The employee's injury did not require surgery, but he was left with a dull ache in his right leg from the hip to the calf.  Occasionally this dull ache would intensify and become more painful, usually with prolonged sitting and standing or when he attempted to play softball or golf.  Subsequent to his injury, the employee was able to return to work at his pre-injury job without significant time loss, wage loss, or accommodation by Honeywell.  In 1997, at age 62, the employee voluntarily retired from his job with Honeywell and began drawing retirement benefits, including social security benefits.

 

Upon retirement, it was the employee's understanding that he could earn up to $9,000.00 a year before there would be a dollar-for-dollar offset by social security, and in about January of 1999 he sought to supplement his retirement income working as a delivery person for Suburban Imaging.  The employee worked an alternating schedule of two and three days a week for six hours each day.  He initially earned $8.25 per hour, and at some point during his employment he received a fifty-cent raise.  The employee would occasionally pick up additional hours and would occasionally take time off from work, but he never worked forty hours in any given week.  Since his retirement from Honeywell in 1997, the employee's only job has been with Suburban Imaging, and he has not sought employment elsewhere.

 

On August 10, 2000, the employee's doctor restricted him from working due to an increase in the employee's low back and leg pain.  About two months later, on October 6, 2000, the employee underwent surgery for his back condition.  He was consequently unable to perform his part-time work with Suburban Imaging from August 10, 2000, through January 22, 2001.  On November 24, 2000, the employee filed a claim petition for temporary total disability benefits during the period of his convalescence from surgery.  Honeywell admitted liability for the surgery, but, because of the employee's retirement, denied liability for the claimed wage loss.

 

The employee's claim for benefits came on for a hearing before a compensation judge on June 26, 2002.  The case was submitted to the judge on stipulated facts.  The parties agreed that the employee's retirement from Honeywell in 1997 was not injury-related and that he was physically capable of performing his job at the time he retired.  They also agreed that the employee's reduction in earnings between January of 1999 and August 9, 2000, was not injury-related and that, therefore, the employee was not entitled to temporary partial disability benefits during this period of time.  The sole issue presented to the compensation judge was whether the employee was entitled to temporary total disability benefits from August 10, 2000, through January 22, 2001.

 

By Findings and Order issued July 19, 2002, the compensation judge determined that the employee's job with Suburban Imaging constituted a return to the labor force and that the employee was no longer retired after January 1999.  He then determined that the employee's stipulated ineligibility for temporary partial disability benefits through August 9, 2000, did not disqualify the employee from temporary total disability benefits for the period in dispute, when he was medically disabled as a result of a work-related injury.  Consequently, the judge awarded temporary total disability benefits based on the employee's weekly wage at the time of his 1978 work injury with Honeywell, with periodic adjustments pursuant to Minn. Stat. § 176.645.  Honeywell appeals.

 

DECISION

 

On appeal, Honeywell contends that the employee's retirement precludes further wage loss benefits and that there is no basis for the judge's conclusion that the employee had re-entered the competitive work force at the time he became physically disabled.  It argues that it is anomalous to suggest that an employee can be retired from the work force for purposes of temporary partial disability benefits and then be somehow unretired for purposes of temporary total disability benefits, just by virtue of an arising need for surgery.  We are not persuaded.

 

The compensation judge concluded that, although the employee limited his hours and earnings, he was nonetheless able to supplement his income with real wages of approximately $130.00 per week.  The judge determined that the employee's earnings were not insignificant and that when the employee became disabled his loss of earnings was real.  The judge's conclusion that the employee's job with Suburban Imaging represented a return to the labor force and that the employee was no longer retired after January 1999 was reasonably supported by the record and is accordingly affirmed.

 

Contrary to Honeywell's assertion, we fail to see the alleged anomaly between the noncompensability of the employee's partial wage loss and the compensability of his claim for temporary total disability benefits.  The compensation judge was not asked to make a finding on the compensability of the employee's partial wage loss between January 1999 and August 9, 2000; the parties themselves stipulated that the reduction in earnings was not injury-related.  The parties did not stipulate that the employee remained retired during this period of time or that the reason the employee's reduction in earnings was not injury-related was because of retirement; they stipulated only that the employee limited his earnings for personal reasons.  Because we have affirmed the judge's conclusion that the employee was not retired from the labor force, and because there is no dispute that the employee was totally disabled from working from August 10, 2000, through January 22, 2001, the judge's award of benefits is affirmed in its entirety.