CHARLOTTE CARLSON, Employee, v. HUNT ELEC. and CNA INS. CO., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 28, 2003

HEADNOTES

EARNING CAPACITY - SUBSTANTIAL EVIDENCE; TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where it was not unreasonable for the compensation judge to conclude that the testimony of the employee=s QRC and the employer and insurer=s vocational expert was not, in light of the employee=s own testimony and other expert opinion, sufficient to rebut the actual-wage presumption, and where there was no evidence that the employee=s second post-injury/employer job was known to and available to the employee during the period of her first and lower-paying post-injury/employer job, the compensation judge=s conclusion that the employee=s actual wages at the first post-injury/employer job reasonably reflected her post-injury earning capacity at that time for purposes of temporary partial disability compensation was not clearly erroneous and unsupported by substantial evidence.

Affirmed.

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

Compensation Judge:  Penny Johnson

OPINION

WILLIAM R. PEDERSON, Judge

The employer and insurer appeal from the compensation judge's award of temporary partial disability benefits.  We affirm.

BACKGROUND

On October 1, 1998, Charlotte Carlson sustained a work-related strain to her neck and left shoulder in the course of her job doing commercial construction work as a journeyman electrician with Hunt Electric.  Ms. Carlson=s job entailed extensive overhead work installing ceiling lights and electrical cable, and more than half of her tasks were performed above shoulder level.  Ms. Carlson [the employee] was thirty-four years old on the date of her injury and was earning a weekly wage of $1,006.80.  Following her injury, the employee worked periodically for the employer in a modified job, prefabricating electrical parts,^[1] but she continued to have pain.  About a year after her injury, on September 28 and 29, 1999, the employee underwent a functional capacity evaluation [FCE], pursuant to which she was found to have marked limitations in lifting and elevated work, due to cervical, upper trapezius, and scapular discomfort.  Eventually, by a Findings and Order filed August 29, 2000, the employee was awarded permanent partial disability compensation for a cervical strain and underlying degenerative disc disease rated as a 7% impairment of her whole body.

In February of 2001, the employee had a flare-up of cervical and shoulder symptoms in the course of her work for the employer.  On March 14, 2001, she saw her treating neurologist, Dr. Jessica Heiring, regarding an increase in her neck symptoms over the course of the past month.  Dr. Heiring referred the employee for a cervical MRI scan and restricted her from doing repetitive upper extremity work more than two hours a day.

On March 30, 2001, the employee was examined for the employer and insurer by orthopedist Dr. David Boxall.  Dr. Boxall saw no need for ongoing formalized physical therapy or chiropractic treatment, concluding that the employee required no restrictions at all with regard to her left shoulder and a restriction only against lifting over thirty-five pounds with regard to her neck injury.

The employee=s cervical MRI scan, conducted on March 29, 2001, had proved negative, and on May 9, 2001, Dr. Heiring indicated that she had ruled out the option of surgery but had continued the employee=s restrictions.  On the basis of that same scan, Dr. Boxall, on May 22, 2001, concluded that the employee=s February 2001 flare-up had been only a temporary injury, from which the employee had reached maximum medical improvement [MMI] as of March 30, 2001, the date of her independent medical examination [IME] with Dr. Boxall.  In August of 2001, the employee was laid off from her job with the employer.  At the time of her layoff, the employee was earning $28.50 an hour, or $1,140 a week, with full fringe benefits.

On December 19, 2001, the employee underwent a rehabilitation consultation with QRC Lori Krawczyk.  On December 27, 2001, Ms. Krawczyk reported the employee to be a Aqualified employee@ for purposes of eligibility for statutory rehabilitation services, and she reiterated that conclusion to the insurer on January 4, 2002.  On January 17, 2002, Ms. Krawczyk faxed a rehabilitation plan to the insurer which the insurer declined to approve of, apparently on grounds that the employee had voluntarily withdrawn from the labor market in order to attend the Minnesota School of Business.  On about February 22, 2002, the employee filed a Rehabilitation Request, and on March 1, 2002, the employer and insurer filed their Rehabilitation Response, denying that request.

On March 8, 2002, through Top Temporary Services, the employee found and commenced full-time receptionist work within her restrictions with Silliker Laboratories.  The job paid $10.50 an hour, and the employee was evidently told that, though initially temporary, there was a possibility that it might be converted into a permanent position.

The employee=s Rehabilitation Request came on for an administrative conference on March 26, 2002, and, by a Decision and Order filed on that same date, an arbitrator for the commissioner determined that the employee was eligible for rehabilitation services and ordered the employer and insurer to pay her outstanding and ongoing expenses.  On April 12, 2002, the employee filed a claim petition, alleging in part entitlement to temporary partial disability benefits continuing from March 8, 2002, and to continuing rehabilitation benefits as directed by QRC Krawczyk, all consequent to her work injury on October 1, 1998.  On April 18, 2002, while the employee was still employed full time with Silliker Laboratories, the employee, QRC Krawczyk, and placement specialist Rebecca Larson, who had been assisting with the employee=s job search since April 1, 2002, executed and sent to the insurer a Job Placement Plan and Agreement [JPPA] targeting the following work for the employee:  (1) electrical-related work as an estimator, inspector, union representative, project manager, or sales person; (2) work as a property manager or maintenance supervisor; or (3) sales work related to construction, art production, or tools.  On April 19, 2002, Ms. Krawczyk informed the insurer that the employee was no longer enrolled in any classes at the Minnesota School of Business.  On April 24, 2002, the employer and insurer denied liability for the benefits alleged in the employee=s claim petition and requested a formal hearing with regard to the employee=s award of rehabilitation benefits, contending that Athe employee=s current employment upon which she is seeking temporary partial disability benefits is not suitable employment,@ that Athe employee is voluntarily under-employed,@ and that Athe employee has withdrawn from the labor market in order to focus on obtaining schooling through the Minnesota School of Business.@

In her May 28, 2002, report to QRC Krawczyk, placement specialist Larson documented information received from the employee on May 23, 2002, to the effect that the employee had recently investigated five different jobs targeted by her JPPA and had previously sent out more than twenty resumes, none resulting in a job more suitable for her than the job that she already had.  Ms. Larson=s report also contained copies of three different resumes drafted for the employee, each targeting a different type of job, and it documented fourteen potential job leads apparently either furnished to the employee or reported by the employee.  In her own Progress Report dated June 4, 2002, QRC Krawczyk indicated that, having been informed on May 15, 2002, of the employer and insurer=s ongoing denial of benefits and of Ms. Larson=s consequent prospective withdrawal from the case, the employee had become extremely

concerned that now I was not going to be working with her, as well as [the placement specialist], and what was she supposed to do.  She advised that she could not continue earning $10.00 per hour, and she is not able to pay her bills.  She advised that she sold her boat the previous day for extra money.

On June 20, 2002, after conducting a repeat independent medical examination, Dr. Boxall recommended increased restrictions with regard to the employee=s cervical spine, recommending that she avoid repetitive use of the arms at and above shoulder height and that she avoid keeping her head and neck in one position for more than two hours at a time without a break of fifteen minutes.

In a Job Placement Closing Report to QRC Krawczyk dated June 21, 2002, placement specialist Larson indicated that she was no longer able to satisfy the employee=s requests for cold calling assistance, Adue to the pending dispute@ regarding the employee=s entitlement to continuing rehabilitation benefits.  Ms. Larson=s report documents the employee=s report that she had been checking for jobs in the newspaper classified ads for nine months, both in hard copy and on the internet, and it documents another twenty-six job leads either furnished to or reported by--and in many cases applied for by--the employee.  Beginning about June 24, 2002, placement specialist assistance to the employee was taken over from Rebecca Larson by David Laurie & Associates, Inc.

On about July 8, 2002, with the help of a friend, the employee obtained new, temporary employment as a full-time administrative specialist with Nash Finch, at an hourly wage of $15.00, or $600.00 a week.  On July 18, 2002, the employee and QRC Krawczyk executed a Rehabilitation Plan Amendment that was later sent to the insurer, indicating that the employee would participate in full time job search now with the assistance of the Laurie firm.  On July 22, 2002, the temporary Nash Finch position was offered to the employee on a permanent basis, and she accepted.  On August 8, 2002, QRC Krawczyk prepared a rehabilitation request relative to the employer and insurer=s denial of rehabilitation services and bills, indicating in her Progress Report on that date that, in her opinion, the employee=s new position with Nash Finch was still not economically suitable for the employee, given the disparity between the employee=s wage at that job and her preinjury weekly wage of $1,006.00.  On August 9, 2002, the employee=s claim petition and the employer and insurer=s request for formal hearing were consolidated for hearing.

About a month earlier, on July 11, 2002, the employee had been evaluated for the employer and insurer by independent vocational expert L. David Russell, who had administered various vocational tests and had reviewed the employee=s medical history and her 1999 FCE.  On August 19, 2002, Mr. Russell reported to the employer and insurer=s attorney that the employee=s Acurrent earning capacity lies in a broad range of about $8.00 to $34.00 per hour,@ based in part on the Minnesota Department of Economic Security 2000 Minnesota Salary Survey  listing of wages for job types that Mr. Russell found suitable and generally available for the employee in her local job market.  On that finding, Mr. Russell concluded that it did not appear that the employee had withdrawn from the available job market in working at her job with Nash Finch, although A[e]arlier periods of her un-employment and under-employment may be a different story.@  Mr. Russell explained that A[t]he job search [that the employee] described did not appear to have substance as she could recall no applications and only one interview@ and Aher efforts were primarily limited to sending out resumes.@

On August 20, 2002, after viewing certain surveillance videotapes of the employee taken in July 2002, Dr. Boxall reported to the employer and insurer that he had changed his opinions with regard to the employee=s cervical spine-related restrictions, concluding now that the employee Acould work full time in any capacity and participate in any leisure time activities without any restrictions whatsoever.@

On August 22, 2002, job placement specialist Arlecia Taylor of the Laurie placement firm reported to QRC Krawczyk concerning her services to the employee from June 24, 2002, through August 21, 2002.  She indicated that, after reviewing with the employee her medical and rehabilitation history and records and her physical restrictions, a JPPA was developed targeting Afull-time work doing electrical related work, estimator, union representative, project manager, sales, property manager, maintenance supervisor, sales consultant, art product sales, and any other jobs of interest and within physical restrictions.@  Ms. Taylor indicated that, after performing various job search functions in assistance of the employee, including making over two hundred cold-call contacts with prospective employers, her office had discovered no position for which the employee was both physically and vocationally qualified.  She indicated that, during the period at issue, the employee had both cooperated with the job search plan and stayed in touch with the Laurie office by telephone, e-mail, and in-person contact.  On August 26, 2002, Ms. Taylor reported further to Ms. Krawczyk that her office had also conducted a labor market analysis, to determine the feasibility of full-time employment for the employee in the areas of: AAdministrative Assistant, Electrician, Electrical/Electronic Assembler, Driver Light or Delivery, Equipment Operator, Customer Service, and Cost Estimator,@ based on the employee=s Apast and present work history, education, and transferable skills.@  Ms. Taylor documented available positions with ten employers in those areas in the employee=s job market, concluding that, A[w]hile there are positions available in quite a few fields of employment, salaries are at a low.@  Of the positions that she was able to identify for which the employee was qualified, Administrative Assistant positions paid the mostBan average of $15.00 an hour--others, including a position in Electrical/Electronic Assembly, paying no more than $10.25 an hour.

The matter came on for hearing on August 27, 2002, as of which date the employee continued to be restricted by her doctors from performing over-shoulder activities on a repetitive basis for more than two hours a day and from lifting over the shoulder more than thirty-five pounds.  Issues at hearing included the employee=s entitlement to rehabilitation services and to temporary partial disability benefits continuing from March 8, 2002, to the date of the hearing.  Secondary issues included whether benefits were precluded by voluntary underemployment, lack of a diligent job search, or a release to work without restrictions.  Evidence introduced at hearing included the employee=s testimony that she searched diligently for work during all periods at issue, including following up on her own discoveries and leads from her QRC regarding about thirty jobs in areas identified in her rehabilitation file as ones for which she was qualified.  She testified that she conducted this diligent search for better work even while already working full time at Silliker Laboratories, and QRC Krawczyk also testified in part that the employee Awas cooperating in every way@ with the rehabilitation services of QRC Krawczyk and placement expert Larson during the benefits periods at issue.

By findings and order filed September 2002, the compensation judge concluded in part that the employee was not yet fully recovered from her work injury and that she was not yet employed at an optimum wage.  In that light, and expressly crediting the employee=s testimony as to her search for work, the judge concluded also that the employee had not been voluntarily underemployed since March 2002, that she was entitled temporary partial disability benefits continuing from March 8, 2002, based on her actual earnings, and that she was entitled to continuing rehabilitation benefits.  The employer and insurer appeal from the judge=s award of temporary partial disability benefits for the period March 8, 2002, through the week ending July 7, 2002, during which the employee was working at Silliker Laboratories for $10.50 an hour.

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

The compensation judge expressly found credible the employee=s testimony that she diligently searched for work in full cooperation with rehabilitation services at all times after March 8, 2002.  Based in important part on that conclusion, the judge determined that the employee was not voluntarily underemployed and awarded temporary partial disability benefits continuing from that date.  The employer and insurer do not contest the judge=s award of benefits beginning in July 2002, when the employee commenced her work with Nash Finch at an hourly wage of $15.00, but they contend that the employee had effectively withdrawn from the labor market during the time she worked at Silliker Laboratories at an hourly wage of $10.50.  They acknowledge that an injured employee=s actual post-injury wages have long been held to reflect the employee=s post-injury earning capacity, absent a clear showing by the employer and insurer of "something more than a theoretical possibility of a [different] position or wage."  Patterson v. Denny's Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989), citing Einberger v. 3M Co., 41 W.C.D. 727, n.14 (W.C.C.A. 1989), and Serra v. Hanna Mining Co., slip op. (W.C.C.A. Feb. 2, 1989); see also, e.g., Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993); Grieco v. Minnesota Natural Foods, 48 W.C.D. 174 (W.C.C.A. 1992); Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).  They argue, however, citing Caron v. Beatrice, slip op. (W.C.C.A. Aug. 12, 1991), and Garrett v. Ford Motor, slip op. (W.C.C.A. May 12, 1992), that the testimony of a vocational expert can be a critical element in such a showing, and they contend that there was Auniversal vocational testimony@ from both QRC Krawczyk and vocational expert Russell that the employee=s earnings of $10.50 an hour at Silliker Laboratories was not reflective of the employee=s earning capacity.  AThis universal testimony,@ they argue, Ais sufficient to create a rebuttal of the presumption that post injury earnings are reflective of an employee=s earning capacity.@  We are not persuaded.

The presumption at issue--that actual employment income represents an injured employee=s earning capacity at the time of that employment for purposes of temporary partial disability compensation--does not necessarily constitute a presumption that the employee may not someday earn still higher wages.   Moreover, the expert opinion referenced by the employer and insurer is not Auniversal,@ in that QRC Krawczyk=s conclusion that the employee=s earnings at Silliker Laboratories were not suitable was, taken in context, a conclusion only that the employee, at the time that she held that job, was entitled to continuing rehabilitation benefits so as to assist her in finding still higher paying employment.  It was the express opinion of QRC Krawczyk, of the employee herself, and of placement expert Taylor, and it was implicit also in the records of placement expert Larson, that the employee=s cooperation with rehabilitation assistance, including her job search efforts, was at all times responsible and reasonably diligent during the benefits period at issue.  Moreover, at Findings 8 and 11, the compensation judge emphasized that the employee was in full cooperation with rehabilitation assistance during the period at issue, and the employer and insurer make no argument on appeal to the contrary.  Mr. Russell=s testimony that other jobs were available to the employee was founded not on a survey of particular jobs verifiably available to the employee personally in her labor market but only on an internet listing of jobs purportedly available to her under various headings.  Mr. Russell acknowledged that he had not inquired as to whether any of those positions was actually available to someone with the employee=s restrictions, nor was there any evidence that even this general listing, current in August of 2002, was relevant to the March 8 to July 7 benefits period here at issue.  The internet listings generated by Mr. Russell do not necessarily represent "[any]thing more than a theoretical possibility of a [different] position or wage," Patterson, 42 W.C.D. at 875, as they would need to to effectively rebut the actual wage earning capacity presumption.

The employer and insurer argue also that the employee=s eventual $15-an-hour job at Nash Finch Ais further evidence that the employee was voluntarily under-employed and working well below her earning capacity during the period she worked for Silliker Laboratories at $10.50 an hour.@ They contend that the employee=s earning capacity during the period at issue should at least, and in the alternative, be imputed to have been $15 an hour.  These arguments presume that the job at Nash Finch was available and known to the employee during the period at issue, and there is no evidence that this is true.  Job opportunities open and close, and we reject the suggestion that, whenever a person finds a new job, the new job was always there and available all along.

Because it was not unreasonable for the compensation judge to conclude that expert vocational opinion in this case was not, when viewed in light of the employee=s own testimony and other expert opinion, sufficient to rebut the actual wage presumption, and because there is no evidence that the employee=s Nash Finch job was known to and available to the employee during the benefits period in question, we affirm the judge=s conclusion that the employee=s actual wages during the period in question reasonably reflected her earning capacity at that time.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  On that basis we affirm also the judge=s award of the temporary partial disability benefits here at issue.  Id.