MARK HUGHES, Employee/Appellant, v. CASE CORP. and ACE USA/PACIFIC EMPLOYERS INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 13, 2003

 

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY; WITHDRAWAL FROM LABOR MARKET.   Based on the fact that the employee was self employed in farming and the fact that the employee made no significant efforts to find other work for over a year after his seasonal job ended on March 30, 2001, the compensation judge could reasonably conclude that the employee was not eligible for temporary total benefits because he had essentially withdrawn from the competitive labor market during the spring, summer and early fall of 2001 and thereafter failed to conduct a diligent job search.

 

TEMPORARY TOTAL DISABILITY; REHABILITATION - COOPERATION.  The compensation judge erred in denying temporary total disability benefits where the employee was cooperating with his QRC in efforts to return to work.

 

TEMPORARY PARTIAL DISABILITY COMPENSATION.  The compensation judge erred in denying temporary partial disability compensation based on the employee=s prior withdrawal from the labor market and lack of job search where the employee had returned to the labor market and sought and found appropriate full-time work at a wage loss.  That a post-injury job is paid by commission rather than by hourly wages does not defeat an employee=s claim for temporary benefits.

 

Affirmed in part and reversed in part.

 

Determined by Stofferahn, J., Wilson, J., and Pederson, J.

Compensation Judge: James R. Otto

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the denial of temporary total and temporary partial disability compensation.  We reverse the denial of temporary partial disability compensation and we affirm in part and reverse in part the denial of temporary total compensation.

 

BACKGROUND

 

The employer, Case Corporation (also known as CNH Global), is a manufacturer of self-propelled farm equipment.  In addition to other categories of workers, the employer has over the years customarily hired seasonal workers to work between the end of the local harvesting season and the beginning of spring planting.  The employer=s seasonal workers are primarily hired from local farmers seeking an outside income during their non-farming season. 

 

The employee, Mark Hughes, first worked for the employer as a seasonal worker in January 1995, working until the first part of April 1995 when he left to resume his farming activities.  Thereafter the employee continued to accept seasonal employment from the employer each year on a similar schedule, which he alternated with farming during the agricultural season.  During August and September 2000, the employee also did some summer work for the employer as a test machine operator.  He was laid off again until late November when he again returned to work for the employer as a seasonal employee at an hourly rate of $12.21.  Beginning in January 2001 the employee was working substantial overtime hours in this job, and his weekly wage at the time of injury was $683.32.

 

On March 22, 2001, the employee sustained a work-related permanent aggravation to a pre-existing lumbar back condition.  His treating doctor diagnosed a lumbar sprain/strain and  imposed work restrictions limiting him to light-duty work.  He was able to continue working for the employer in a light-duty position until March 30, 2001, when he and about 10-15 other seasonal workers were laid off at the end of the seasonal employment.  The employee farmed during the summer of 2001 but did not do as much of the work himself.  He did not commence any job search after the layoff, although he did contact the employer once in December 2001 to inquire about seasonal work for the 2001-2002 winter season. 

 

The employer did not offer the employee seasonal work, and in January 2002 the employee began working with a qualified rehabilitation consultant (AQRC@), Mike Gurda.  The employee was seen along with his QRC by Dr. Jeffrey C. Dick in early February 2002 at the referral of his treating physician.  Dr. Dick recommended an exercise program followed by an FCA but did not provide other treatment or work restrictions.

 

 By agreement of the parties, the initiation of job placement efforts was delayed until after the employee=s appointment with Dr. Dick.  The employee at first limited his job search to seeking part-time work which would not interfere with his intended resumption of farming.  However, the employee learned in early April, 2002 that he had lost his eligibility for federal farm subsidy assistance and decided that he would not resume his farming activities that year.  He then expanded his job search to seek full-time employment and on May 3, 2002 he began working full-time plus overtime as a delivery driver for Benson Market on a commission basis.  His pay in that position through the date of hearing produced lower earnings than his weekly wage on the date of injury.

 

The employee filed a claim petition on February 15, 2002 seeking temporary total disability compensation.  On June 18, 2002, a hearing was held before a compensation judge of the Office of Administrative Hearings to consider the employee=s entitlement to temporary benefits and the employer=s defenses.  In his Findings and Order, the compensation judge found that the employee had withdrawn from the labor market upon returning to his farming activities in the spring and summer of 2001, and that he had not performed a reasonably diligent job search thereafter.  The judge also found that the employee had failed to show that his wage loss in the full-time, post-injury job with Benson Market was related to his work injury and disability, in that the post-injury employment was paid by commission rather than hourly wages and did not involve as many overtime hours as the employee=s job on the date of injury.  The compensation judge accordingly denied temporary total and temporary partial disability.  The employee appeals.

 

DECISION

 

1. Temporary Total Disability

 

An employee who voluntarily withdraws from the labor market is not making a reasonably diligent effort to find substitute employment and is not entitled to temporary total disability benefits.  Paine v. Beek's Pizza, 323 N.W.2d 812, 35 W.C.D. 199 (Minn. l982).   Unless the evidence otherwise establishes that an employee is totally unemployable, "[t]he injured employee proves temporary total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail."  Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. l988).

 

Here, the employee testified after his layoff in March 2001 that he did not perform a job search because of his farming. The evidence also showed that the employee=s farming operation had not provided any taxable income from at least 1997.  In late November or December 2001, he made a single call to the employer inquiring whether seasonal work would again be available.  After he learned that such work would not be available, he then at first sought only limited part-time employment which would not interfere with the resumption of full-time farming activities in the spring and summer of 2002.

 

The compensation judge found that the employee=s return to his farming activities following his layoff from his seasonal job on March 30, 2001 constituted a withdrawal from the labor market, and that the employee had failed to undertake a reasonably diligent job search thereafter, so that he was not entitled to temporary total disability compensation.

 

The employee argues on appeal that the compensation judge should have found that he was eligible for temporary total disability compensation between March 31, 2001 and August 1, 2001 on the basis that the employee acted reasonably in failing to undertake a job search during the period because he could anticipate that the employer might offer him a temporary late summer job in August 2001 as it had in 2000 and in some prior years.  He argues by similar reasoning that the employee was thereafter excused from a job search through early January 2002  because he might reasonably anticipate returning to work for the employer in November or December 2001. 

 

This court has previously noted that, A[w]here there appears to be a reasonable possibility that an employee might return to work with his prior employer, it may not be reasonable to require an immediate search for work elsewhere.@  Oihus v. Roadway Express, 61 W.C.D. 118, 124 (W.C.C.A. 2000).   Implicit in such an exception to the job search requirements, however, is a test of what is reasonable under the specific facts and circumstances of the case.  The question of what conduct is reasonable is one committed to the compensation judge, and like any other factual issue, this court will not disturb the compensation judge=s determination unless clearly erroneous. 

Unlike the more usual case involving an ongoing employment interrupted by the effects of a work injury, this case involves an employee whose seasonal employment simply ended at the close of his term of hire for reasons unrelated to the work injury.  The employee would not have had any reason to anticipate any offer of work between March 30 and late August, 2001.  When the employer did not contact him in August he then had no reason to expect work from the employer until late fall or early winter.  We note, also, that the employee did not even contact the employer until December 2001 to inquire about the possibility of a return to work.  Finally, we note that the employee=s argument, if accepted, would result in an award of wage loss benefits for extended periods in which the employee customarily was self employed in farming, a custom from which he admittedly had not departed during the period in question.  Given these and the other factors in the case, we cannot conclude that the compensation judge erred in failing to find that the employee acted reasonably in declining to search for work for the ten months from his layoff through early January 2002.

 

Regarding the period of claimed temporary total disability after January 29, 2002, the employee contends that the compensation judge erred in failing to base his decision on whether the employee cooperated with rehabilitation during this period, rather than his job search.

 

The record discloses that the employee requested the services of a qualified rehabilitation consultant in January 2002 and a rehabilitation consultation was authorized on January 18, 2002.  The employee met with QRC Mike Gurda on January 23, 2002 and the QRC determined the employee was eligible for statutory rehabilitation services in his report of January 29, 2002.  The QRC testified at the hearing that the employee had been cooperative at all times.  The parties agreed that no job search would be conducted until after the appointment with Dr. Dick.  Thereafter the employee conducted a job search at the direction of the QRC.

 

ARehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.@  Minn. Stat. ' 176.102, subd. 1(b).  This court has frequently emphasized the central role of rehabilitation in our statutes.  When rehabilitation services are provided, the central issue is whether the employee has made a good faith effort to cooperate.  Taylor v. Geo. A. Hormel, 42 W.C.D. 633 (W.C.C.A. 1989).

 

The evidence indicates that as of January 29, 2002, the employee was fully compliant with his QRC in efforts to return to work.  In those circumstances, it was error for the compensation judge to deny the employee=s claim for temporary total disability from January 29, 2002 to May 3, 2002.

We affirm the compensation judge=s denial of temporary total disability benefits through January 28, 2002 and reverse his denial of temporary total disability benefits from January 29, 2002 through May 3, 2002.

 

2. Temporary Partial Disability

 

The compensation judge denied temporary partial disability compensation on the basis that the employee had failed to prove a wage loss related to his injury and disability, predicated on four grounds the judge set forth in Findings 18 and 19, specifically, that (1) the employee had withdrawn from the labor market in the summer of 2001 and failed to seek competitive employment until April 2002; (2) the employee initially limited his job search to part-time work; (3) the full-time job the employee did eventually find was paid based on a commission or percentage of the load, rather than on an hourly wage; and (4) the employee did not work the same number of overtime hours in his post-injury employment as he did in his job on the date of injury.

 

                                   The employee asserts that the compensation judge erred in denying temporary partial disability compensation.  We agree, and reverse.

 

In order to demonstrate entitlement to temporary partial disability, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability.  See 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).  Temporary partial disability benefits are to be paid to an employee whose earning capacity has been adversely affected by a work injury and disability such that it is less than his pre-injury weekly wage.  An employee's earning capacity is the level of compensation the employee could obtain from employment he is physically capable of performing and which is actually available in his employment community.  Dahl v. U.S.X. Corp., 44 W.C.D. 321 (W.C.C.A. 1990); Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990). 

 

That the employee had previously withdrawn from the labor market or initially failed to conduct a reasonably diligent job search for over a year does not negate the employee=s entitlement to temporary partial disability compensation after the employee had returned to the labor market and sought and found appropriate full-time work.  Cf, e.g. Johnson v. State Dep=t of Veterans Affairs, 400 N.W.2d 729 (Minn. 1987); Kurowski v. Kittson Memorial Hosp., 396 N.W.2d 827, 39 W.C.D. 169 (Minn. 1986); Fielding v. George A. Hormel Co., 439 N.W.2d 12, 41 W.C.D. 942 (Minn. 1989); Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (1989).  The fact that the employee successfully sought and secured full-time work here demonstrates a return to the labor market.

 

The fact that the job the employee found is paid by commission rather than by hourly wage does not preclude an award of temporary partial disability benefits.  Similarly, with respect to the question of overtime, the employee testified that he worked all of the overtime hours available in this job, which in fact closely approached the level of overtime which had been available to him in the job he held on the date of injury.  Further, as the employee=s current job is not paid by an hourly wage, the number of overtime hours it requires or offers is not a particularly meaningful point of comparison. 

 

It is well established that evidence of an employee's actual wages are presumed to be a fair measure of the employee's earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960).  While the presumption of earning capacity may be rebutted, the record here is devoid of facts to rebut the presumption.  Employer and insurer have provided no evidence of any employment actually available to employee which would demonstrate a greater earning capacity.  Cf., Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 83 (W.C.C.A. 1990).  Employee is, therefore, entitled to temporary partial disability benefits based on his full-time, post-injury employment with Benson Market, and we reverse that portion of the compensation judge's decision.