TAWA J. BROWN, Employee, v. MIDWEST SPECIAL SERVS., SELF-INSURED/ASU RISK MGMT. SERVS., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 16, 2003

HEADNOTES

JOB OFFER - PHYSICAL SUITABILITY.  Where the employee=s post-injury work duties required work beyond the employee=s work restrictions, substantial evidence supported the compensation judge=s determinations that the employee=s post-injury work was not physically suitable, that no light-duty work was offered to the employee by the employer, and that the employee=s reduction in earning capacity after August 24, 2001, was causally related to her work injury.

TEMPORARY PARTIAL DISABILITY - CALCULATION OF BENEFITS.  Where the employee was temporary partially disabled as a substantial result of her first work injury, and therefore was entitled to payment of temporary partial disability benefits at the time of her second injury, and where the employee was temporarily totally disabled as a result of her second work injury, the employee was entitled to payment of ongoing temporary partial disability benefits from her first employer pursuant to Kirchner v. Iowa Natl. Mutual Ins. Co., 399 N.W.2d 908, 36 W.C.D. 335 (Minn. 1983) (Kirchner I), and Kirchner v. Iowa Natl. Mutual Ins. Co., 410 N.W.2d 825, 40 W.C.D. 197 (Minn. 1987) (Kirchner II).

Affirmed in part, reversed and remanded in part.

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

Compensation Judge: Joan G. Hallock

Attorneys:  Matthew H. Jones, Brown & Carlson, Minneapolis, MN, for the Appellants.  Brendan Cody, Cody Law Firm, St. Paul, MN, for the Respondent.

OPINION

MIRIAM P. RYKKEN, Judge

The self-insured employer appeals from the compensation judge=s award of temporary partial disability benefits and from the finding that after a second work injury on March 6, 2002, the employee was entitled to benefits calculated with the formula set forth in Kirchner v. Iowa Natl. Mutual Ins. Co., 410 N.W.2d 825, 40 W.C.D. 197 (Minn. 1987).  We affirm in part, and reverse and remand in part.

BACKGROUND

On February 7, 2000, Ms. Tawa Brown, the employee, was employed as an assistant program instructor by the self-insured employer, Midwest Special Services.  On that date, the employee also worked at a second job, working for Hammer Residences, Inc., as an assistant program manager, and  earned a stipulated combined weekly wage totaling $1,177.52 (based on $336.33 earned from Midwest and $841.19 from Hammer Residences). 

The employee=s position with Midwest consisted of assisting physically and mentally disabled clients with normal daily activities.  The employee=s clients were bussed to her work site daily, and returned to their homes at night.  Since most of her clients used wheelchairs, the employee was required to off load her clients from the bus, wheel them inside, transfer them from a wheelchair into a stationary chair, assist clients with toileting, feeding, cleaning and transfers, and conduct activities with them.  In February 2000, the employee was assigned responsibility for four clients, three of whom used wheelchairs.  The employee=s second job at Hammer Residences involved assisting mentally disabled residents with their daily living activities. 

On February 7, 2000, while working for Midwest, the employee sustained an admitted injury to her left shoulder  while transferring a patient from a chair to a bed or table.  She initially treated with Dr. Karen Kane who diagnosed an impingement syndrome of the left shoulder related to a strain of the rotator cuff.  Dr. Kane referred her for physical therapy and assigned restrictions with no lifting more than 10-15 pounds and no reaching over shoulder level.  After her injury, the employee was restricted to no work with her left arm, but  returned to work for both employers.  At Hammer Residences, she modified her duties to include no use of her left arm.  However, the employee testified that her job at Midwest did not change following her injury.  Although the employee was reassigned to two clients in wheelchairs and two ambulatory clients who used walkers, care for these residents at Midwest still required use of her left arm.

By late February, Dr. Brian O=Neill diagnosed a left shoulder rotator cuff tendinitis with possibility of a rotator cuff tear, and prescribed a steroid injection.  An MRI on April 25, 2000, confirmed a rotator cuff tear and impingement syndrome.  The employee=s prescribed conservative treatment did not relieve her symptoms of persistent shoulder pain and decreased strength in her shoulder.  On July 27, 2000, Dr. O=Neill performed surgery on the employee=s left shoulder,  in the nature of an arthroscopic subacromial decompression and mini open rotator cuff repair.  The employee reported no improvement following her surgery.  She remained off work completely for two weeks, and then returned to both jobs.  The employee=s treating physician, Dr. Kane, assigned work restrictions which included no use of her left arm.  The employee communicated these restrictions to her primary supervisor and other supervisory staff at Midwest, and advised her supervisor that her work activities were aggravating her left shoulder condition, but, she contends, the employer did not modify her assigned duties.  Although the employee=s supervisor testified that the employee=s job post-surgery included simply observing and assisting clients, plus transferring patients, pushing wheelchairs and assisting with toileting if she was able to do so with one arm, the employee testified that her job after her injury was virtually identical to her pre-injury job.  The record contains no written documentation of light-duty work provided to the employee following her shoulder surgery. 

In March 2001, the employee took a family medical leave of absence for approximately six to seven days to assist her husband.  On August 2001, the employee took a two-week leave of absence to assist her daughter following the birth of her daughter=s baby.  During those two weeks off work, the employee=s symptoms improved while she was not performing work activities.  On August 23, 2001, the employee returned to work from her second leave of absence.  She worked that day and also August 24, 2001.  Following her return to work the employee immediately noticed an increase in her symptoms.  On August 24, 2001, the employee asked for another two-week leave of absence; she testified that she advised the employer=s vice president, Steve Howard, that she needed to take two weeks off work to think about what to do with respect to her ongoing difficulties with her shoulder.  The employee=s supervisor, Mr. Kevin McCaleb, testified that he met with the employee on August 29, and advised her that the employer was unable to grant another leave of absence.  According to Mr. McCaleb, the employee advised him that she was resigning and he asked her to provide a written confirmation of her resignation. 

The employee testified that after Mr. McCaleb advised her that the employer could not grant a leave of absence, he then stated that she would need to either return to work immediately or give up her job.  The employee then informed Mr. McCaleb that she was resigning because she was unable to perform her job due to her shoulder condition.  Although the employee advised Mr. McCaleb that she would deliver a signed document the following day, she did not do so.  Instead, the employee=s counsel sent a letter to the employer, stating that the employee was not resigning from her position, and requesting that light-duty work be provided to the employee within her restrictions.  The employer has not offered the employee light-duty work within her restrictions, but neither has the employer terminated the employee=s position.^[1]  As a result of this series of events, the employee=s last day of work for Midwest was August 24, 2001.  

On January 15, 2002, the employee underwent an independent orthopedic examination with Dr. Mark Friedland, at the employer=s request.  Dr. Friedland concluded that she sustained a small rotator cuff tear as a result of her February 7, 2000, injury, but also concluded that the employee appeared to have pain in her left shoulder far beyond her objective findings.  He found that he was unable to perform appropriate apprehension testing on examination due to marked guarding of the left shoulder, and therefore was unable to determine whether the employee had any instability of her shoulder which might be causing her postoperative pain. Dr. Friedland therefore recommended that the employee be examined with her left shoulder under anesthesia, to determine if a laxity in the employee=s shoulder might render her a candidate for an arthroscopic shoulder surgery.  He recommended against a repeat decompression and repeat attempt at a rotator cuff repair, which had earlier been suggested by Dr. Mark Gregerson.  Dr. Friedland also concluded that the employee has not reached maximum medical improvement from her shoulder injury, and assigned work restrictions of no work with the left arm above waist level, no lifting with the left arm and no repetitive push/pull activities with her left arm nor work with her arm extended away from her body.

The employee continued working at Hammer Residences, and worked solely at that position until she started an additional new position with Heartland Home Care (Heartland) on February 25, 2002.  She worked in a hospice setting for Heartland between February 25 and March 6, 2002.  On March 6, 2002, she was involved in a work-related car accident while working for Hammer Residences, and was totally disabled thereafter at least until the date of hearing held on December 17, 2002.  The employee continued to receive medical treatment for her left shoulder.  At Dr. Kane=s referral, she was examined by Dr. Daniel Buss in April 2002.  He recommended physical therapy at the Sister Kenny Institute and cessation of narcotic pain medication in lieu of additional surgery.

Following the employee=s injury, Midwest paid the employee temporary partial disability benefits between August 7, 2000 and July 5, 2001, a total of $724.31 during that 29.3 week period, which calculates to an average weekly amount of $24.72.  A hearing was held before a compensation judge on December 17, 2002, to address the employee=s claims for temporary partial disability benefits between August 24, 2001, and her second injury on March 6, 2002, and for payment of ongoing temporary partial disability benefits following her second work injury on March 6, 2002.  At hearing, the self-employed employer denied the employee=s claims, asserting that on August 24, 2001, the employee left a suitable job that she was able to perform within her physical work restrictions, and as a result was not entitled to the claimed benefits.  The hearing record closed on January 10, 2003, after submission of briefs by counsel.

In Findings and Order, served and filed on March 11, 2003, the compensation judge found that the employee did not leave suitable employment with the employer, Midwest, on August 24, 2001, and found that the employee was entitled to payment of temporary partial disability benefits between August 25, 2001, through March 6, 2002.  The compensation judge also found that the employee was entitled to continued payment from Midwest for temporary partial disability benefits following her second work injury on March 6, 2002, with such temporary partial disability benefits calculated based on the formula set forth in Kirchner v. Iowa Natl. Mutual Ins. Co., 410 N.W.2d 825, 40 W.C.D. 197 (Minn. 1987).  The self-insured employer appeals.

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 (1992).  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

Entitlement to Temporary Partial Disability Benefits

The employer appeals from the compensation judge=s award of temporary partial disability benefits since August 24, 2001.  Temporary partial benefits are payable while an employee is employed, Aearning less than [her] weekly wage at the time of injury, and the reduced wage the employee is able to earn in [her] partially disabled condition is due to the injury.@  Minn. Stat. ' 176.101(2)(b).  An employee must show (1) a work-related injury resulting in disability, (2) an ability to work  subject to that disability, and (3) an actual loss of earning capacity that is causally related to the work-related disability.  Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981); Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  In order to be eligible for temporary partial benefits, the employee must establish a reduction in earning capacity that 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).  "[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).

The compensation judge found that the job at Midwest which the employee left on August 24, 2001, was not suitable as it was not within the employee=s physical work restrictions.  Inferring that the employee=s job did not establish the employee=s post-injury earning capacity and that the employee=s reduction in earning capacity after August 24, 2001, was causally related to her work injury, the compensation judge found that the employee was entitled to temporary partial disability benefits after August 24, 2001.

The self-insured employer appeals, contending that because the employee=s post-injury job at Midwest was physically suitable, and is still available to the employee, the job established her earning capacity.  The employer argues that since the employee sustained no loss of earning capacity as a result of her injury, she was not entitled to payment of temporary partial disability benefits after leaving her job with the employer.  In support of its argument, the employer relies on the testimony by the employee=s supervisor that the employee was limited to one-arm work and was asked to request help in performing any tasks that required work with her left arm.  The employer argues that the employee=s testimony, that the job required tasks beyond her physical work restrictions, was not credible.