JOSE L. RIOS, Employee/Cross-Appellant, v. NATIONAL COATINGS and DODSON INS. GROUP/ASU, Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 8, 2002

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - BACK; PERMANENT PARTIAL DISABILITY - OBJECTIVE FINDINGS.  Where the judge=s finding of persistent objective clinical findings was supported by several elements of the medical record, where there was no clear evidence that certain multilevel A[e]arly dessiccation@ identified by a radiologist on the employee=s MRI was causally related to the employee=s work injury, and because a finding of permanent partial disability is one of ultimate fact for the fact finder, the compensation judge=s rating of the employee=s permanent partial disability at 7% of the whole body under Minn. R. 5223.0390, subp. 4C(1), instead of at 0% under Minn. R.5223.0390, subp. 4A, or 10% under Minn. R. 5223.0390, subp. 3C(2), was not clearly erroneous and unsupported by substantial evidence.

 

WAGES - IRREGULAR. Where the only pre-injury weeks during which the employee worked fewer than five days a week for the employer were his first week of employment, commenced on a Friday, and the week in which he was injured, on a Tuesday, the employee did not normally work fewer than five days a week, and the judge=s calculation of the employee=s weekly wage by multiplying his daily wage by a figure less than 5 was reversed.

 

REHABILITATION - ELIGIBILITY; TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  The provision in Minn. Stat. ' 176.101, subd. 1(e)(1), that precludes recommencement of temporary total disability benefits after a termination for misconduct does not preclude a recommencement of temporary partial disability or rehabilitation benefits after such a termination, but remand for further findings was nevertheless required, where neither the basis for the judge=s award of rehabilitation benefits nor the basis for the judge=s denial of temporary partial disability benefits was clear from the compensation judge=s decision.

 

TEMPORARY TOTAL DISABILITY; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(e)(1).  Termination Afor misconduct@ for purposes of Minn. Stat. ' 176.101, subd. 1(e)(1), is not necessarily to be presumed by an employee=s termination Afor misrepresenting his ability to work@ or otherwise Afor cause,@ and, although determination as to whether an employee was terminated Afor misconduct@ under the statute is ultimately a legal issue to be determined de novo by the Workers= Compensation Court of Appeals, remand to the compensation judge was required for further factual findings, including a finding as to whether, from the judge=s unique perspective for assessing the credibility of witnesses, the conduct for which the employee was terminated was Awilful and wanton.@

 

Affirmed in part, reversed in part, and remanded.

 

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

Compensation Judge:  Jeanne E. Knight

 

                                                                      OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's awards of permanent partial disability compensation and rehabilitation services.  The employee cross appeals from the judge=s conclusion that the employee was terminated for misconduct, from the judge=s denial of wage replacement benefits, from the judge=s determination of the employee=s weekly wage, and from the judge=s rating of the employee=s permanent partial disability at 7% instead of 10% of the whole body.  We affirm the award of permanent partial disability benefits, we reverse the determination of the employee=s weekly wage, and we remand for further findings with regard to the rehabilitation, misconduct, temporary total disability, and temporary partial disability issues.

 

BACKGROUND

 

On December 1, 1998, Jose Rios sustained a work-related injury to his low back when he fell from a five-foot ladder while employed as a truck painter with National Coatings [the employer], for whom he had worked since October 16, 1998.  On the date of his injury, Mr. Rios [the employee] was twenty-six years old, was working full time, and was earning an hourly wage of $10.00 and a varying weekly wage that remains in dispute.  The employer and its insurer admitted liability for the injury and commenced payment of various benefits.  Subsequent to his injury, the employee was seen at a hospital emergency room, where he was diagnosed with contusion to the chest and sprain of the left hip, and was taken off work for about two days, after which he returned to work for the employer, apparently at different tasks.

 

The employee=s symptoms continued, and on December 10, 1998, he saw Dr. Kari Bunkers.  Dr. Bunkers found him to have Afull range of motion of his thoracic lumbar spine@ but Amoderate tenderness to palpation along the left paralumbar thoracic and lumbar region with moderate spasm,@ and she prescribed medication and restricted him from pulling or lifting more than twenty pounds.  The employee evidently expressed reluctance to tell his employer of his pain, out of fear of getting fired, and Dr. Bunkers offered and attempted to contact the employer regarding those concerns but was unsuccessful for lack of a telephone listing.  Upon follow-up examination on December 17, 1998, Dr. Bunkers noted that the employee had Aessentially full range of motion with pain at the extremes of extension, flexion and not twisting laterally,@ with continuing Amuscle spasm of the left paralumbar region from T10 down to L5.@  On that date, Dr. Bunkers completed a return-to-work-report, indicating in part that the employee would be undergoing physical therapy and was restricted from pushing and pulling more than occasionally, from ever lifting over twenty-five pounds, and from lifting over ten pounds more than occasionally.  The employee=s symptoms apparently continued to grow more severe, and Dr. Bunkers indicated on December 31, 1998, that the employee should Ado absolutely no job that requires any standing, bending or reaching@ and Amust only sit at work.@  On January 11, 1999, with the employee complaining that his low back pain was now radiating down his left leg into his arch and that he was in effect being asked to do nothing at work except stay seated at a bench, Dr. Bunkers restricted the employee from work, recommending an MRI scan of the lumbar spine and referring the employee to the Institute for Low Back Care.

 

On January 25, 1999, Dr. Bunkers reported that she had learned four days earlier, upon return from a vacation, that the insurer had declined to authorize the Low Back Clinic evaluation or the MRI but had requested that the employee be examined instead more locally, at the Orthopaedic & Fracture Clinic.  Dr. Bunkers indicated that an appointment had been made at that time with orthopedist Dr. William Laney at the latter clinic and that the employee had been issued an extension of his work release to January 27, 1999, the date of his scheduled appointment with Dr. Laney.  The doctor indicated that she subsequently read a letter from the insurer indicating that the employer did, after all, have work available for the employee within his restrictions and that the employee had, indeed, been performing it prior to being taken off work on January 11, 1999Bwork consisting of reviewing tapes, translation, and training of Spanish speaking individuals.  The doctor indicated that she had subsequently informed the employee that she was releasing him to work four hours a day for the next two days, Abecause I didn=t feel that he had been totally truthful with me in denying that [the employer] did have him doing some sort of work while he was on light duty.@

 

Dr. Laney saw the employee on January 27, 1999, noting on that date that the employee did Anot have a normal gait, but his gait does not fit any true antalgic or weakness related pattern.@  Dr. Laney concurred in obtaining an MRI scan, which was performed on February 6, 1999.  The scan was read to reveal a herniated disc at L5-S1, bulging into contact with, but not compressing, the left S1 nerve root.  In his report, radiologist Dr. Thomas Gilbert indicated that, A[w]hile there is no impingement, it is conceivable that a chemical radiculitis exists because of the proximity of the nerve root to the herniation@ and that A[t]his may contribute to the [employee=s] left leg symptoms.@  The scan was also read to reveal degenerative changes at that L5-S1 level and A[e]arly desiccation at L3-4, L2-3, and L1-2.@  The employee returned for follow-up with Dr. Laney on February 12, 1999, when Dr. Laney told him Athat his complaints of pain and his disability are out of proportion to his objective physical findings and that there is nothing on his MRI that would be suggestive of significant nerve root compression that might require surgical intervention.@  When he saw the employee again on March 3, 1999, Dr. Laney noted that the employee=s AEXAM continues to show a hysterical gait@ and that A[h]is disability is out of proportion to this objective clinical examination@ (underscoring and bold face in original).  On March 31, 1999, Dr. Laney reiterated that the employee=s Apain perception is altered, and his complaints of pain remain significantly out of proportion to his objective physical findings.@

 

The employee saw Dr. Bunkers again on March 18 and on June 24, 1999.  On the latter date, Dr. Bunkers diagnosed in part A[p]ersistent low back pain with radiation with documented disk on MRI - work comp from [the employer],@ re-prescribed anti-inflammatories, and referred the employee to occupational medicine specialist Dr. Steven Kirkhorn for treatment recommendations.

 

On May 27, 1999, the employee was examined for the employer and insurer by orthopedist Dr. Gary Wyard.  In his report on that date, Dr. Wyard drew the following conclusions: (1) that the employee had reached maximum medical improvement [MMI] with regard to his work injury about March 1, 1999; (2) that the employee currently required no restrictions, had Asubjective complaints and pain behavior out of proportion to objective findings,@ had evidence on his MRI scan of degenerative changes that Ahave taken years to develop,@ and required no surgical intervention; (3) that the employee would benefit from conditioning and work hardening but not from a referral to the Low Back Institute; (4) that further medical care or treatment for the employee would actually be Aenabling and contraindicated,@ in light of the facts that he had no supportive clinical findings, he had no clear evidence of paresthesias suggesting radiculitis; and he could sufficiently treat his degenerative L5-S1 disc with anti-inflammatories; and (5) that the employee has a 0% disability under Minnesota Rule 5223.0390, subpart 4A, given the absence of persistent objective clinical findings in spite of radiographic findings.

 

On that same date, May 27, 1999, the employee was videotaped by investigators for the employer and insurer.  The tapes show the employee exhibiting little pain behavior as he approaches the building in which Dr. Wyard=s office is located and then, upon emerging into the hallway leading to Dr. Wyard=s office, suddenly engaging in substantial pain behavior.  Accordingly, the videotape reveals the employee leaving the doctor=s office a little while later revealing substantial pain behavior and then, once clear of the immediate vicinity of the examination, reverting again to apparently very normal and pain-free movement.

 

Dr. Bunkers= light duty restrictions were still in place when the employee saw Dr. Bunkers= associate Dr. Karl Blomquist on July 1, 1999, and Dr. Blomquist renewed them.  On July 7, 1999, the employee saw occupational medicine specialist Dr. Kirkhorn, who reported that the employee had an antalgic gait favoring his left leg and was rating his pain at a level eight or nine out of ten.  Upon examination, Dr. Kirkhorn noted in part that the employee had decreased range of motion and Amoderate tenderness in the left paralumbar area from L3 distally, and also in the left S1 notch and left buttock,@ although he noted no spasm and no tenderness on the right or above L3.  Dr. Kirkhorn diagnosed low back pain, disc herniation at L5-S1 by report, and Asciatic symptoms of the left leg for chronic pain,@ and he recommended a TENS unit for pain control and a functional capacity assessment to determine a rationale for work restrictions.  Meanwhile, Dr. Kirkhorn recommended that the employee continue to work four hours a day for another week and then increase his hours to six a day.  He recommended also that the employee be restricted to ten pounds lifting, with no constant static flexed position of the back and with opportunity to change position every thirty minutes.  The doctor also recommended that the employee avoid bending and squatting and should refrain from standing, walking, and or sitting on more than an occasional basis.

 

On August 3, 1999, upon the employer=s review of the May 27, 1999, videotapes, the employee=s employment with the employer was terminated.

 

On September 14, 1999, the employee was examined by pain and rehabilitation specialist Dr. A. V. Anderson, to whom he reported pain radiating through his left hip and buttock and down the back of his left leg, ending in Anumbness in the three middle toes when the pain is more severe.@  Upon examination, Dr. Anderson found in part lumbar pain on palpation, twenty percent decreased range of lumbar motion on the left side, and Asignificant muscle spasm in the left lumbosacral muscle structures.@  Noting the February 1999 MRI scan=s suggestion of the possibility of chemical radiculitis, Dr. Anderson diagnosed lumbar discogenic pain syndrome, left leg radiculopathy symptoms, lumbar degenerative disc syndrome at multiple levels, and depression secondary to ongoing pain, concluding that the employee Acertainly d[id] not fit the criteria for a malingerer.@  Dr. Anderson concluded that the employee Ashould have been kept on significant restrictions@ and should be considered for a discogram if any doubt remains, indicating that he was aware that surveillance studies had been done and that he Awould certainly like to see any evidence that [the employee] is able to function beyond that which I would have expected.@

 

On October 27, 1999, the employee filed a claim petition, alleging underpayment of temporary total and temporary partial disability benefits for various unspecified dates, entitlement to temporary total disability benefits continuing from August 3, 1999, entitlement to payment of various unspecified medical expenses, and entitlement to QRC services and other rehabilitation benefits, all consequent to his work injury on December 1, 1998, reserving a claim for permanent partial disability benefits.  Subsequently, on November 30, 1999, the employee began receiving rehabilitation assistance from QRC Kurt Lidke, and eventually, in February of 2000, he found a job as a dishwasher at the Ramada Inn in Owatonna, where he worked six hours a day, four or five days a week, earning $6.00 an hour.  He continued to look for other work, and on June 12, 2000, he took a job with Chiquita Processed Foods, working full time at $7.50 an hour.  The work at Chiquita Processed Foods was apparently seasonal work, and the employee was laid off on January 28, 2001, on which date he was evidently earning $12.79 an hour. 

 

On January 16, 2001, Dr. Anderson had rated the employee=s permanent partial disability at 10% of the whole body, pursuant to Minn. R. 5223.0390, subp. 3C(2), for lumbar pain syndrome associated with more than one lumbar vertebral level.  In a report dated February 28, 2001, Dr. Anderson indicated that he had reviewed the May 27, 1999, surveillance tape of the employee and that it had not altered his January 16, 2001, permanency rating, in that such erratic behavior Ais typical with this type of condition.@

 

The matter came on for hearing on March 9, 2001.  Issues at hearing included (1) the employee=s entitlement to temporary total and temporary partial disability compensation as claimed, (2) A[w]hether the employee was terminated for cause@ (emphasis added), (3) whether the employee=s pain behaviors were exaggerated, (4) the employee=s average weekly wage on the date of injury, and (5) whether the employee had sustained any permanent partial disability as a result of the work injury.  Evidence submitted at hearing included the employer and insurer=s surveillance tapes of the employee.  In apparent response to their revelation of erratic pain behavior, the employee testified that he had felt Aa little nervous and afraid@ at the prospect of the appointment with Dr. Wyard.  Also testifying at hearing were three of the employee=s co-workers at the employer, who testified to occasional behavior of the employee that was notably inconsistent with his alleged injury and with his usual pain behavior.

 

By findings and order filed June 8, 2001, the compensation judge concluded in part the following: (1) that the employee had been terminated for misconduct for purposes of Minn. Stat. ' 176.101, subd. 1(e)(1), when he was terminated on August 3, 1999, for apparently misrepresenting his ability to work; (2) that the employee=s average weekly wage at the time of injury was $386.29, as opposed to the $468.24 per week that the employee alleged; (3) that the employee was entitled to compensation for a permanent partial disability of 7% of his whole body, for radicular symptoms stemming from injury at a single lumbar vertebral level, but not for a 10% disability as alleged; and (4) that the intervenor was entitled to reimbursement of $4,746.30 in rehabilitation expenses, plus interest.  The employer and insurer appeal from the award of permanency benefits and from the judge=s order of payment for rehabilitation expenses, and the employee cross appeals from the finding of termination for misconduct, from the determination of the weekly wage, and from the award of permanency benefits.

 

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

 

1.  Permanent Partial Disability

 

(a.)  The Employer and Insurer=s Appeal.  At Finding 11, the compensation judge rated the employee=s permanent impairment at 7% of the whole body, under Minnesota Rule 5223.0390, subpart 4C(1), which provides for that rating when the following is associated with an injury at a single vertebral level of the lumbar spine:

 

Radicular pain or radicular paresthesia, with or without lumbar pain syndrome, with persistent objective clinical findings confined to the region of the lumbar spine, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part.

 

Minn. R. 5223.0390, subp. 4C(1).  The judge indicated in her memorandum that, in making her rating, she relied on the examination findings of Dr. Kirkhorn, that the employee had no longer any spasm but did have limited range of motion.^[1]  The appealing employer and insurer acknowledge that the employee demonstrated an MRI scan abnormality to support his claim, but they contend that he proved neither radicular pain or paresthesia nor persistent objective clinical findings.  Asserting that range of motion is a subjective test within the control of the person being tested, and emphasizing that the compensation judge herself found the employee to have exaggerated his level of pain, the employer and insurer contend that Ait is reasonable to conclude that [the employee] also exaggerated or fabricated a decreased range of motion.@  They argue further that even range of motion had been found by Dr. Bunkers to be unrestricted already on December 10, 1998, just nine days after his claimed injury, and Aessentially@ unrestricted again a week after that.  A few weeks later, they argue further, at his visit with Dr. Laney on March 3, 1999, the employee was demonstrating a Ahysterical gait@ and disability that was seen by Dr. Laney to be Aout of proportion to this objective clinical examination.@  These are all indications, they contend, that the employee was subject neither to the radicular pain or paresthesia nor to the persistent objective clinical findings required by the rule. They contend that the employee should instead have been rated, pursuant to the May 1999 opinion of Dr. Wyard, under Minnesota Rules 5223.0390, subpart 4A, which provides for a 0% rating for A[r]adicular pain or radicular paresthesia, . . . with or without lumbar pain syndrome, not substantiated by persistent objective clinical findings, regardless of radiographic findings.@  Minn. R. 5223.0390, subp. 4A (emphasis added).  We are not persuaded.

 

We would reiterate at the outset, in response to the argument that Ait is reasonable to conclude@ that the employee exaggerated a decreased range of motion just as he had exaggerated his pain,@ that the reasonableness of a hypothetical conclusion not reached by the judge is not the issue before us; the issue before us is whether the conclusion that the judge did reach was reasonable.  See Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240 (Athe court of appeals is not to substitute its view of the evidence for that adopted by the compensation judge if the compensation judge=s finding are supported by evidence that a reasonable mind might accept as adequate@).  We conclude, moreover, that the judge was entitled to rely on the July 1999 examination findings of Dr. Kirkhorn rather than on the findings of Drs. Bunkers and Laney or on the opinion of Dr. Wyard.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) ("the trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence").  Although Dr. Bunkers did make findings of full range of motion shortly after the employee=s injury, Dr. Bunkers also made concurrent findings of continuing spasm through at least the end of the year, and she substantially restricted the employee=s work at that time accordingly.  Dr. Laney=s examination findings do reflect less objective disability, but, post-dating the findings of Dr. Bunkers and pre-dating the findings of Dr. Kirkhorn as they do, they demand no greater credibility than the findings of either of those other physicians.  We acknowledge that findings on a single examination such as that conducted by Dr. Kirkhorn do not necessarily constitute Apersistent@ findings as required by the rule.  But we would emphasize that those findings in this case were made in the context and evident awareness of a substantially broader medical history and were reflected also in the subsequent examination findings of Dr. Anderson.  A compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing. See Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000).

 

Because it was not unreasonable for the judge to rely on the findings of Dr. Kirkhorn rather than on the findings of Dr. Laney or of Dr. Wyard, because uncited elements of the medical record also support the judge=s decision, and because a finding of permanent partial disability is at any rate one of ultimate fact for the compensation judge, notwithstanding adverse expert opinion, see Hill v. MacKay Envelope, slip op. (W.C.C.A. July 10, 1998), citing Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987), we will not reverse the judge=s award of compensation for an impairment to a minimum of 7% of the whole body.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

(b.)  The Employee=s Cross Appeal.  Contrary to the thrust of the employer and insurer=s argument, that any award of permanency was erroneous in this case, the employee contends on cross appeal that the judge should actually have rated the employee=s whole-body impairment higher than she didBat 10 % instead of 7%, pursuant to the January 2001 opinion of Dr. Anderson and to Minn. R. 5223.0390, subp. 3C(2).  That rule provides for such compensation where there are, at multiple vertebral levels,

 

[s]ymptoms of pain or stiffness in the region of the lumbar spine, substantiated by persistent objective clinical findings, that is, involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine, and with any radiographic, myelographic, CT scan, or MRI scan abnormality not specifically addressed elsewhere in this part.

 

Minn. R. 5223.0390, subp. 3C(2) (emphasis added).  Contrary to the compensation judge=s conclusion that the employee=s disability stems from injury at only one vertebral level of his spine, the employee contends that multilevel disability was identified not only in the opinion of Dr. Anderson but also in the findings of Dr. Kirkhorn on which the judge relied and in the report of radiologist Dr. Gilbert.  He argues that Dr. Kirkhorn=s finding of Amoderate tenderness in the left paralumbar area from L3 distally, and also in the left S1 notch and left buttock@Amirrors and is perfectly consistent with@ Dr. Gilbert=s MRI report of A[e]arly desiccation at L3-4, L2-3, and L1-2@ in addition to disc degeneration and herniation at L5-S1.  The employee argues that the reported desiccation is Aan unequivocal >abnormality not specifically addressed elsewhere=.@  Again, we are not persuaded.

 

First of all, the employee neglects to note that, whereas the Aearly dessication@ reported by Dr. Gilbert was at the top three lumbar levels, Dr. Kirkhorn expressly found no symptoms above L3; indeed, instead of mirroring and being Aperfectly consistent with@ Dr. Gilbert=s report, this multilevel element of Dr. Kirkhorn=s report is arguably contradictory of Dr. Gilbert=s report.  Moreover, there is nothing in either Dr. Kirkhorn=s opinion or Dr. Gilbert=s radiological report to indicate that either the moderate tenderness found by the former below L3 or the Aearly dessication@ found by the latter above L3 was in any way causally related to the employee=s work injury.  Even the unspecified abnormalities referenced in Subpart 3(C)(2) must be causally related to the employee=s work in order for an employee to qualify for benefits under that rule. Absent any clearer evidence that the multilevel A[e]arly dessiccation@ identified by Dr. Gilbert on the employee=s MRI or the moderate tenderness identified by Dr. Kirkhorn on examination was causally related to the employee=s work injury, we see no reason to conclude that compensation is due for injury at more than one level of the employee=s spine.  Accordingly we affirm the judge=s award of permanent partial disability benefits.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Weekly Wage

 

At Finding 3, the compensation judge concluded that the employee worked for the employer a total of thirty-three days over a period of eight weeks, during which time he earned a total of $3,090.35, yielding, by the judge=s calculation, an average weekly wage of $386.29.  The judge indicated in that same finding that she had arrived at that figure A[u]sing the statutory formula contained in Minn. Stat. ' 176.011, Subd. 18,@ and based on a conclusion that Athe employee worked an average of 4.125 days per week.@  The judge indicated that she had then multiplied this days-per-week figure by the employee=s daily wage in order to arrive at the $386.29 figure.  The employee contends on cross appeal that, pursuant to the statute, his weekly wage should have been calculated based on evidence that he Anormally@ worked a full five days each week, which the employee argues he did in all but the week in which he was hired and the week in which he was injured.  The employee argues that the judge=s calculation was error and resulted in a weekly wage over eighty dollars less than the wage he was actually earning at the time of his injury.  We agree.

 

Minnesota Statutes ' 176.011, subd. 18, which defines A[w]eekly wage,@ provides in part that an employee=s

 

A[w]eekly wage@ is arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.  If the employee normally works less than five days per week or works an irregular number of days per week, the number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties, . . . .

 

Minn. Stat. ' 176.011, subd. 18.  Minnesota Statutes ' 176.011, subd. 3, which defines A[d]aily wage,@ provides in part that,

 

A[i]f the amount of the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine, or if the employment was part time, the daily wage shall be computed by dividing the total amount the employee actually earned in such employment in the last 26 weeks, by the total number of days in which the employee actually performed any of the duties of such employment, . . . .

 

Minn. Stat. ' 176.011, subd. 3.  There is evidently no dispute as to the employee=s daily wage.  At the time of his injury, the employee had worked for the employer a total of thirty-three days, beginning on Friday October 16, 1998, and concluding on Tuesday December 1, 1998, the date of his work injury.  The employee=s wage records indicate that his wages over this period of time were clearly irregular, and the compensation judge therefore properly calculated the employee=s daily wage, pursuant to Subdivision 3 of the statute, by dividing the employee=s total earnings of $3,090.35 by the total number of days he worked--thirty-three, which results in an average daily wage of $93.65.

 

It is at this point that the compensation judge, we conclude, misapplied the statutes at issue.  The employee=s work for the employer began on a Friday and concluded on a Tuesday, and he received his weekly pay checks for his work on the eight Fridays following that workBthe first being for only $40.00, for evidently just half a day=s work on his first day on the job, and the last being for only $200, for evidently just twenty hours of work on the two days of the week preceding his medical restriction due to his work injury at the beginning of his final week.  From these facts the compensation judge concluded that the employee had worked for the employer for a period of eight weeks.  This was not a reasonable or proper conclusion.  The employee evidently worked every day of his five-day-a-week-job from the date he was hired through the date he was injured.  The mere fact that he was hired on a Friday instead of on the previous Monday and was injured on a Tuesday instead of the following Thursday does not alter the fact that he Anormally@ worked five days a week during his employment with the employer, and it should not be construed to compel calculation of benefits based on less than such full time work.  Pursuant to Minn. Stat. ' 176.011, subd. 18, it was only A[i]f the employee normally works less than five days per week@ (emphasis added) that the employee=s weekly wage should have been calculated as the compensation judge calculated it--Aby dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks [here thirty-three days] by the number of weeks in which the employee actually performed such duties [here arguably eight weeks]@ Because the employee did not normally work less than five days a week, the compensation judge=s calculation of the employee=s weekly wage was improper, and we reverse her determination and order that the employee=s wage be calculated at $468.23 as claimed.

 

3.  Misconduct, Wage Replacement, and Rehabilitation Benefits

 

At Finding 17, the compensation judge found expressly that A[t]he employee was terminated for misconduct.@  At Finding 18, the judge indicated that the employee was therefore not entitled to recommencement of his temporary total disability benefits, under Minn. Stat. ' 176.101, subd. 1 (d) and (e)(1), which provides in part that, Aif temporary total disability compensation ceased because the employee returned to work, it may be recommenced if the employee is laid off or terminated for reasons other than misconduct.@  Minn. Stat. ' 176.101, subd. 1 (e)(1).  At Finding 19, without any reference to that provision, the judge went on to conclude that A[t]he employee has not proved by a preponderance of the evidence that his loss of wages after his return to work at the Ramada Inn and then at Chiquita Processed Foods was a result of his work injury.@  Notwithstanding these denials of wage replacement benefits--and although the judge had not even listed rehabilitation expenses among issues before her for determinationBthe judge went on in Order 5 to award to the intervenor, the Vocational Rehabilitation Unit of the Minnesota Department of Labor and Industry, $4,746.30, plus interest, in claimed rehabilitation expenses.  The employee contends on cross appeal that the judge=s finding that the employee was terminated for misconduct for purposes of Minn. Stat. ' 176.101, subd. 1 (e)(1), was improper under case law applicable to that section and that the judge=s denial of the temporary total and temporary partial disability benefits claimed in this case was improper, given the well established rule that Aa justifiable discharge for misconduct suspends an injured employee=s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee=s work-related disability is the cause of the employee=s inability to find or hold new employment.@ Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989).  The employer and insurer contend on appeal that the judge=s award of rehabilitation benefits was legal error, arguing that the statute=s preclusion of recommencement of temporary total disability benefits after a termination for misconduct should extend also to rehabilitation benefits.  We remand for further findings pursuant to the following discussion.

 

(a.)  Rehabilitation reimbursement.  We have held in previous cases that the authorization in Minn. Stat. ' 176.101, subd. 1(e)(1), for temporary total disability benefits to be Arecommenced if the employee is laid off or terminated for reasons other than misconduct@ in effect precludes recommencement of temporary total disability benefits after a termination for misconduct.  See, e.g., Hughes v. Versa/Northern Iron, 58 W.C.D. 520, 527 (W.C.C.A. 1998).  We have also held, however, that that same provision does not preclude a recommencement of temporary partial disability benefits after such a termination, in that A[s]ubdivision 1 of Minn. Stat. ' 176.101 refers only to temporary total disability benefits@ and Athere was no corresponding amendment to Minn. Stat. ' 176.101, subd.  2, regarding temporary partial disability benefits.@  Griffin v. Fabcon, Inc., 59 W.C.D. 445, 453-54 (W.C.C.A. 1999).  Neither, we conclude here initially, was there any corresponding amendment to Minn. Stat. ' 176.102, regarding rehabilitation benefits.

 

That said, however, we find very little or no express basis in the judge=s decision for her order of reimbursement of rehabilitation expenses to the intervenor.  The judge does, at unappealed Finding 2, conclude that the employee did sustain a work-related injury; she does also, at affirmed Order 2, award compensation to the employee for permanent partial disability related to that injury; and she does also, in her memorandum, indicate that she believes that the employee has ongoing pain as a result of that injury.  However, nowhere in her decision does the judge clearly articulate exactly what, if any, she finds to be the employee=s work-injury-related physical restrictions, either ongoing or at the time the rehabilitation expenses were incurred.  Moreover, at Finding 19, she finds that the employee has not proven that his post-injury reduction in earnings is a result of his work injury.  Indeed, it is not altogether clear that the judge believed that the employee was adequately cooperating with the rehabilitation services that she ordered the employer and insurer to pay for:  at Finding 15, she expressly concluded that the employee Anever submitted completed job logs to [the QRC]@ after being sent job leads by him.

 

Accordingly, we remand the rehabilitation issue to the compensation judge for a clearer statement of the basis of her award of reimbursement, including but not limited to a more definitive statement of what she understands to be the employee=s restrictions, both ongoing now and at the time the rehabilitation expenses at issue were incurred.  For any period during which the employee was, in the judge=s estimation, unrestricted by his work injury, the judge must deny reimbursement.  See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987) (an employee is not entitled to temporary benefits where he is medically able to return to work without restrictions and has no residual disability); see also Kennedy v. Falls Memorial Hosp., slip op. (W.C.C.A. Sept. 9, 1998) (where an employee has been released to return to work without any physical restrictions attributable to her work injury, a compensation judge does not err in denying a rehabilitation consultation); Hall v. Coastal Corp./ANR Freight, slip op. (W.C.C.A. Jun. 22, 1992) (an employee who is not disabled from his pre-injury employment is not eligible for rehabilitation benefits).

 

(b.)  Temporary total disability.  At Finding 12, the compensation judge indicated that A[s]everal employees testified that around the plant the employee would walk slowly and appear to be in pain@ but that they Atestified to seeing the employee jump from one dirt berm to another, which they found surprising@ (emphasis added).  At Finding 13, the judge indicated that the employee Atestified he was very nervous@ at the time of his examination by Dr. Wyard, when he was captured on the surveillance tape Awalking normally until he nears the doctor=s office door, at which point he begins to limp badly and hold onto the wall for support.@  At Finding 14, the judge indicated that the surveillance tape was subsequently Agiven to the employer, and the employee was fired on August 3, 1999, for misrepresenting his ability to work.@  Apparently on these findings, the judge then concluded expressly in Finding 17 that A[t]he employee was terminated for misconduct,@ going on to deny in Finding 18 the employee=s claims to temporary total disability benefits on grounds of Minn. Stat. ' 176.101, subd. 1 (d) and (e)(1).  Both the judge=s finding that the employee was fired Afor misrepresenting his ability to work@ and her finding that he was terminated Afor misconduct@ appear in turn to have been responsive to what the judge had listed in her decision as Issue 2 for determination--whether the employee was terminated Afor cause.@  It is unclear from the judge=s decision as a whole whether she may have viewed these three phrasesBAfor misconduct,@Afor misrepresenting his ability to work,@ and Afor cause@--as essentially identical for purposes of analysis under Minnesota Statutes ' 176.101, subdivision 1(e)(1).  Indeed, in her memorandum, the judge reasons as follows:

 

The parties argued over whether the employee was malingering or not.  The Compensation Judge believes the employee did sustain an injury at work and does have pain, but that, out of fear of further injury, or for other psychological reasons, has exaggerated the degree of that pain.  The statute provides for recommencement of temporary total disability benefits, where the employee has not been terminated for cause [sic].  In this case, the Judge finds the employee was terminated for cause [sic].

 

(Emphasis added.)

 

It appears that the compensation judge may well have denied the employee=s claim to temporary total disability benefits not because he was terminated Afor misconduct@ but because his termination was Afor cause.@  This would have been error.  The case law on this issue is quite clear that  a termination Afor cause@ is not identical with a termination Afor misconduct@ under the statute.  In Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998), this court, absent a definition of the term Amisconduct@ in Minnesota=s workers= compensation statutes, expressly declined to adopt a Ajust cause@ standard in use in Michigan courts and adopted instead a standard based on the Minnesota Supreme Court=s definition of the term in a reemployment insurance case.  We indicated in Langworthy that, for purposes of Minnesota Statutes ' 176.101, subdivision 1(e)(1), Amisconduct@

 

is limited to conduct evincing such wilful or wanton disregard of an employer=s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of [the] employer=s interest or of the employee=s duties and obligations to the employer.

 

Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998), citing Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973).

 

In the present case, the employee argues that any apparent exaggeration described by the compensation judge in her memorandum did not rise to the level of misconduct described in the Langworthy standard.  While we are not at all persuaded, as the employee might be arguing, that motivation by Afear of further injury@ or by Aother psychological reasons@ necessarily removes an action from the classification of Amisconduct@ under the statute, we do conclude that the compensation judge=s decision does not clearly indicate an application of the Langworthy standard distinguished from a mere Afor cause@ standard.  Therefore, we remand this issue also to the judge, for a specific finding as to whether the employee=s misrepresentation of his pain was Awillful and wanton,@ and if so, the manner in which such misrepresentation, if at all, showed an intentional and substantial disregard of the employer=s interest.

 

(c.)  Temporary partial disability.  At Order 1, the compensation judge denied the employee=s claims to temporary partial disability benefits, apparently on grounds of her Finding 19, that the employee had not proven a causal relationship between his work injury and his post-injury wage loss.  While the judge does not specifically reference Minn. Stat. ' 176.101, subd. 1(e)(1), in connection with her denial of temporary partial disability compensation, it is not altogether clear from either her Finding 19 or her Order 1 or her memorandum that the judge=s denial of temporary partial disability benefits was not based on the same or a very related conclusion as that that compelled her denial of temporary total disability benefitsBi.e., that the employee was terminated for misrepresentation and ultimately for misconduct.  As he has with regard to the judge=s denial of temporary total disability benefits, the employee contends that the judge=s denial of temporary partial disability benefits was improper under the rule in Marsolek.  We remand this issue as well, for further findings as to the employee=s restrictions and post-injury earning capacity during the periods of post-injury employment at issue.

 

As we indicated earlier, in our discussion of the judge=s award of rehabilitation benefits, the provision in Minn. Stat. ' 176.101, subd. 1, that precludes recommencement of temporary total disability benefits in cases where the employee has been terminated for misconduct does not pertain to temporary partial disability benefits under Minn. Stat. ' 176.101, subd. 2.  As we stated in Griffin, Aunder Marsolek, a justifiable discharge for misconduct only suspends an injured employee=s right to temporary partial disability benefits until the employee can show that his work-related disability is the cause of his inability to find or hold new employment.@  Griffin, 59 W.C.D. at 454.  A determination that this showing has been made Ashould be 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.  In this case, it is uncontested on appeal that the employee sustained a work-related injury to his low back on the date alleged.  Moreover, there are medical records in evidence that would suggest that the employee may remain subject to injury-related work restrictions, and the judge=s own affirmed award of permanency benefits and pending award of rehabilitation expenses, together with her memorandum=s express acknowledgment of the employee=s ongoing pain, also reflect what might be construed as a finding of at least some physical restrictions.  It is also uncontested that the employee searched for and obtained alternative post-injury employment following his termination by the employer, first working part time and ultimately working full time, prior to his being laid off for what he claims to be seasonal reasons.  If, as we have indicated is to be determined on remand, the employee is indeed still subject to work-related restrictions, the employee=s subsequent employment in his disabled condition may have shifted the burden to the employer to disprove the employee=s entitlement to temporary partial disability benefits.  See Patterson v. Denny's Restaurant, 42 W.C.D. 868, 873-5 (W.C.C.A. 1989) (an employee's actual earnings are presumed to be a fair measure of the employee's current earning capacity, absent a showing by the employer and insurer of "something more than a theoretical possibility of a [different] position or wage"), citing Einberger v. 3M Co., 41 W.C.D. 727, n.14 (W.C.C.A. 1989); Serra v. Hanna Mining Co., slip op. (W.C.C.A. Feb. 2, 1989).

 

Given the above-referenced material ambiguities and potential inconsistencies in the compensation judge=s decision, and given the judge=s failure to make sufficient findings upon which this court might apply the Langworthy standard in determining whether the employee=s behavior constitutes Amisconduct@ for purposes of Minn. Stat. ' 176.101, subd. 1(e)(1), we remand the wage replacement and rehabilitation issues to the compensation judge for further findings consistent with this opinion.  With regard to the rehabilitation and temporary partial disability issues, the compensation judge should in particular make specific findings as to the employee=s work-injury-related physical restrictions.  With regard to the Amisconduct@/temporary total disability issue, the compensation judge should make findings related to the credibility/character elements of the Langworthy standard cited, particularly as to whether or not the employee=s misrepresentation of his pain was Awillful and wanton,@ and in what manner the employee=s conduct showed an intentional and substantial disregard of the employer=s interest, if at all.  Langworthy, slip op. (W.C.C.A. July 8, 1998).