MARY J. LEHMAN, Employee/Cross-Appellant, v. DAKOTA GROWERS PASTA CO. and SAFECO INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 30, 2003

 

HEADNOTES

 

EARNING CAPACITY; REHABILITATION - COOPERATION; TEMPORARY PARTIAL DISABILITY.  Where the employee conceded that her job search was minimal, and where a diligent job search was a critical component of the employee=s rehabilitation plan and JPPA, the compensation judge=s conclusion that the employee failed to prove that her wage loss during the period at issue was substantially related to her work injuries was not clearly erroneous and unsupported by substantial evidence, notwithstanding the rebuttable presumption that actual post-injury earnings normally constitute a fair representation of an employee=s post-injury earning capacity.

 

EARNING CAPACITY; REHABILITATION - COOPERATION; TEMPORARY PARTIAL DISABILITY.  Where the judge determined that the employee was generally cooperative with rehabilitation efforts during the period at issue, and where job logs and the testimony of the employee supported the judge=s decision, the compensation judge=s conclusion that the employee had demonstrated a loss of earning capacity attributable to her work injury and so was entitled to benefits based on her actual earnings was not clearly erroneous and unsupported by substantial evidence.

 

PERMANENT PARTIAL DISABILITY.  Where it was sufficiently supported by the employee=s medical records as well as her testimony, the compensation judge=s award of permanent partial disability benefits for the employee=s bilateral carpal tunnel syndrome was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge:  Bradley J. Behr.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s award of temporary partial disability benefits continuing from August 16, 2002, and of permanent partial disability benefits for the employee=s bilateral carpal tunnel syndrome condition.  The employee cross-appeals from the judge=s denial of temporary partial disability benefits from July 4, 2001, through August 15, 2002.  We affirm.

 

BACKGROUND

 

On September 18, 2000, Mary Lehman [the employee] sustained an injury to her cervical spine and upper back, together with a Gillette-type[1] injury in the nature of bilateral carpal tunnel syndrome, in the course of her work as a lasagna hand packer with Dakota Growers Pasta Company [the employer], for whom she had worked since 1977.  The employee was sixty years old at the time and was earning a weekly wage of $461.20 with the employer and $89.00 with the Leaning Tower of Pizza, where she regularly worked one day a week as a waitress.

 

The employee first sought medical attention for her injuries with occupational medicine specialist Dr. Thomas Oas on September 21, 2000.  Dr. Oas obtained a history of neck stiffness and pain radiating from the base of the neck into the upper trapezius areas bilaterally and on into her left arm.  The employee reported that, since the onset of her neck pain, she had also noticed tingling and numbness in both hands, similar to symptoms that she had experienced about nine years earlier, when she was diagnosed with carpal tunnel syndrome.  She apparently had an EMG at that time and was out of work for about six weeks.  The employee also advised Dr. Oas that for the past seven or eight years she had been on Coumadin for what she described as blood clots in her legs.  Dr. Oas diagnosed a cervical strain and possible recurrence of carpal tunnel syndrome.  He recommended that the employee avoid side-to-side movement and flexion of her neck and prescribed a course of physical therapy.  In an effort to sort out some of the neurologic symptoms the employee complained of in her arms, Dr. Oas also ordered an MRI of the cervical spine.  The MRI, performed on November 7, 2000, was interpreted as showing moderate degenerative disc disease but no herniations or nerve root compressions.  The employer and insurer admitted liability for the employee=s injury and, unable to accommodate the employee=s restrictions, commenced payment of temporary total disability [TTD] benefits.[2] 

 

The employee continued to see Dr. Oas periodically, and on February 7, 2001, the doctor noted that there had been no significant change in her condition.  He reported that she still complained of neck pain and numbness and tingling in her hands but that, because she was on Coumadin, Awe can=t treat her with traditional anti-inflammatories.@  Nerve conduction studies obtained by Dr. Oas did suggest moderate to severe bilateral carpal tunnel syndrome.

 

On February 21, 2001, the employee was examined for the employer and insurer by orthopedist Dr. Edward Kelly.  In a report issued March 7, 2001, Dr. Kelly reported that the employee had sustained a work-related neck strain that had aggravated underlying degenerative changes in her cervical spine.  He concluded, however, that the aggravation had not resulted in any permanent impairment, that the employee had reached maximum medical improvement [MMI], and that the employee could return to work without restrictions regarding her work activities.

 

The employee returned to see Dr. Oas on March 8, 2001.  Following examination on that date, the doctor agreed that the employee had reached MMI, adding that she had sustained a 10% whole body permanent partial disability [PPD] related to her cervical spine and a 3% whole body PPD related to her carpal tunnel syndrome.[3] 

 

The employee was apparently referred by the insurer to QRC John Hjelmeland for a rehabilitation consultation on or about March 15, 2001.  In his initial report to the insurer on that date, QRC Hjelmeland concluded that the employee=s restrictions affected her ability to return to her customary work and that, in order to work for the employer, work accommodations would have to be made.  He proposed a rehabilitation plan calling for a return to work with the date-of-injury employer or, in the alternative, a search for new employment with the assistance of a placement counselor.  Mr. Hjelmeland noted that there were

 

some complicating features to this case.  [The employee] does not possess formal education beyond 11th grade.  If she is unable to perform the work as assigned at [the employer], she will have very few transferrable skills to explore other employment opportunities.  She also has two significantly complicating features which include long term treatment of blood clots and osteoporosis.

 

In late March or early April of 2001, the employer offered the employee a job as a sanitation worker at a plant other than the one at which she had previously been working.  The job required climbing ladders, using mops and hand tools that required firm grasping, and lifting up to fifty pounds.  QRC Hjelmeland performed an on-site job evaluation on April 4, 2001,[4] and the employee completed a functional capacities evaluation [FCE] on April 19 and 20, 2001.  The therapist who conducted the FCE concluded that the employee=s Aphysical capabilities do not match the essential physical demands of the job outlined on the >Sanitation= job description.@

 

On May 3, 2001, Dr. Oas issued restrictions which included no lifting of more than thirty pounds, no repetitive gripping or grasping, and no repetitive neck rotation or flexion.  Neither Dr. Oas nor the FCE restricted the employee from working eight hours a day or forty hours a week.  However, Dr. Oas did not feel that the sanitation job was consistent with the employee=s restrictions, and therefore the employee declined the job offer.  The employer made no other offers of modified employment consistent with the employee=s restrictions.

 

The employee continued to work one shift per weekend as a part-time waitress at the Leaning Tower of Pizza from September 18, 2000, to July 3, 2001.  On this latter date, the employee=s TTD benefits were discontinued based upon a finding that the employee had reached ninety days post MMI from the effects of her injuries. 

 

On August 28, 2001, the employee filed a claim petition, seeking temporary partial disability [TPD] benefits continuing from July 4, 2001, based on her earnings at the Leaning Tower of Pizza.  She also sought PPD benefits for a 10% whole-body impairment related to her cervical spine and for a 3% whole-body impairment related to her bilateral carpal tunnel syndrome.  The employer and insurer denied the nature and extent of the employee=s injuries and contended that the employee had been fully compensated for her injuries.

 

In December 2001, QRC Flynn prepared a Rehabilitation Plan Amendment, together with a Job Placement Plan and Agreement [JPPA], calling for continued job search in an effort to supplement the employee=s earnings at the Leaning Tower of Pizza.  The JPPA required the employee to conduct a part-time job search and to prepare a daily log of her activities.

 

On April 9, 2002, the employee was seen for a vocational evaluation by employment specialist Richard Van Wagner, at the request of the employer and insurer.  Mr. Van Wagner interviewed the employee, performed vocational testing, and reviewed the employee=s medical and rehabilitation reports.  He subsequently issued a labor market research report as well.  In testimony eventually offered at trial, Mr. Van Wagner concluded that at least up until December 9, 2002, the employee was capable of employment beyond her position at the Leaning Tower of Pizza.  He opined that the employee had not conducted a reasonably diligent job search and that the employee=s earnings as a part-time waitress did not reflect her true earning capacity or her vocational capability.

 

On December 9, 2002, the employee=s treating internist, Dr. John Levitt, in response to an inquiry from the employee=s attorney, issued a report concerning the employee=s circulatory condition.  Dr. Levitt reported that the employee had a history of recurrent deep vein thrombosis and phlebitis of the left leg, that resulted in chronic swelling of that leg, together with a past history of ulceration of the lower leg and ankle because of impaired circulation.  He expressed the opinion that the employee should not work more than twenty hours a week because of her impaired circulation.  The doctor did not indicate how long the employee could be on her feet each day or the number of hours each day that she could work. 

 

The employee=s claims came on for a hearing before a compensation judge on December 12, 2002.  Among the issues presented to the judge were the employee=s entitlement to TPD benefits from July 4, 2001, to the date of hearing and her entitlement to PPD benefits consequent to her carpal tunnel condition.  In a Findings and Order issued February 6, 2003, the compensation judge determined that the employee had not proven that her loss of earnings from July 4, 2001, to August 15, 2002, was substantially related to her occupational injuries but that she had proven that her loss of earning capacity continuing from August 16, 2002, was attributable to her injury of September 18, 2000.  The judge awarded TPD benefits to the employee beginning August 16, 2002, based upon her actual earnings at the Leaning Tower of Pizza.  Concluding that the employee satisfied the requirements of the permanent partial disability schedule for her bilateral carpal tunnel condition, the judge also awarded benefits for a combined 5.91% impairment rating under Minn. Stat. ' 176.105, subd. 4, representing 3% to each wrist.  Both parties appeal.

 

DECISION

 

1.  Temporary Partial Disability Benefits

 

In order to establish entitlement to benefits for temporary partial disability, an employee must be working and earning at an actual loss of earning capacity that is causally related to her work injury.  See Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability.  Arouni v. Kelleher Constr. Co., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988).  When a disabled employee who is released to return to full-time work finds a full-time job, generally the earnings from such employment create a presumption of earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989).  Where a disabled employee is released to work on a full-time basis but works only at a part-time job, the employee may still be eligible for temporary partial disability benefits if any wage loss is causally related to the personal injury.  Nolan v. Sidel Realty, 53 W.C.D. 388, 394 (W.C.C.A. 1995).  Whether the wage loss during part-time employment is a result of the personal injury is generally a question of fact.  Id.  In deciding this issue, the compensation judge may consider any relevant evidence on the issue, including the nature and extent of the employee=s job search.  Stauty v. Luigino=s, Inc., 52 W.C.D. 119 (W.C.C.A. 1994).

 

In the present case, the compensation judge denied the employee=s claim for temporary partial disability benefits from July 4, 2001, through August 15, 2002, but awarded such benefits continuing from August 16, 2002.  The compensation judge had resolved the factual question of whether the employee=s wage loss was causally related to her work injury by focusing on the employee=s good faith effort to cooperate with and participate in her rehabilitation plan.  Finding that the employee had failed to demonstrate a reasonable and diligent job search within Dr. Oas=s physical restrictions during the period of July 4, 2001, to August 15, 2002, the judge had concluded the employee had not proven that her loss of earnings during that period was substantially related to her occupational injuries.  Finding that the employee had demonstrated a reasonable and diligent job search from August 16, 2002, to the date of hearing, the judge had concluded that the employee had demonstrated a loss of earning capacity attributable to her work-related injuries during that period of time.  The employer and insurer appeal from the judge=s award of benefits for the later period, and the employee cross-appeals from the compensation judge=s denial of benefits for the earlier period.

 

                        (a)  July 4, 2001, through August 15, 2002.  Having established actual post-injury earnings, the employee contends that the compensation judge erred in failing to require the employer and insurer to rebut the presumption of a compensable loss in earning capacity with something more than a theoretical possibility of a different position or wage.  See Patterson v. Denny=s Rest., 42 W.C.D. 868, 875 (W.C.C.A. 1989).  Citing Nolan v. Sidel Realty Co., 53 W.C.D. 388, 394 (W.C.C.A. 1995), she contends further that, although it may have been minimal, her job search during the period in question was only one factor to be considered in determining whether her wage loss is causally related to her work injury.    We are not persuaded.

 

While we agree that a reasonable and diligent job search is generally not a legal prerequisite to an award of temporary partial disability benefits, we note that the judge=s decision in the present case focused importantly on the employee=s cooperation with rehabilitation, not just on her job search.  The judge concluded that, in failing to cooperate with rehabilitation, the employee also failed to prove that her loss of earnings from July 4, 2001, to August 15, 2002, was causally related to her occupational injuries.  During this period of time, the employee=s rehabilitation plan called for a job search, and, as amended in December 2001, that plan came to include even a JPPA that required the employee=s search to be for three to four hours each day and to include two to three cold calls and applications each day.  In his memorandum, the compensation judge explained that,

during this period, no physician had restricted the employee from full-time work.  The employee submitted no documentary evidence of a search for appropriate work from July 4, 2001, to April 16, 2002, and the employee=s job logs documented only four contacts between April 16, 2002, and August 16, 2002.  The judge further noted that the QRC=s rehabilitation records contained no reports at all for the time period of July 31, 2001, to December 18, 2001.

 

The judge=s conclusion that the employee was not cooperating with rehabilitation efforts during this period is supported by substantial evidence.  In fact, the employee concedes that her job search was minimal.  Because the employee=s job search was a critical component of her rehabilitation plan, the judge reasonably concluded that the employee failed to prove that her wage loss during part-time employment was substantially related to her occupational injuries.  Under the facts of this case, and during the period at issue, we conclude that, even if the employee was entitled to the presumption that actual post-injury earnings constitute her earning capacity, the presumption has been rebutted by the employee=s failure to make a good faith effort to participate in her rehabilitation plan.

 

                        (b)  August 16, 2002, and continuing.  The compensation judge determined that the employee was generally cooperative with rehabilitation efforts after August 16, 2002, and he concluded that the employee had demonstrated a loss of earning capacity attributable to her September 18, 2000, injury after that date.  The judge=s conclusion is supported by job logs introduced into evidence and the testimony of the employee=s QRC.  Whether an employee has sustained a loss of earning capacity consequent to her work injury is a question of fact for the compensation judge.  Borchert v. American Spirits Graphics, 582 N.W.2d 214, 215, 58 W.C.D. 316, 318 (Minn. 1998).  The record in this case, including the employee=s disability, her age, education, skills, and experience, and her cooperation with rehabilitation assistance, all supports the decision of the compensation judge.  Accordingly, the decision of the judge is affirmed.

 

2.  Permanent Partial Disability

 

The employer and insurer argue that the employee is not entitled to compensation for a 5.91% permanent partial disability for her bilateral carpal tunnel syndrome because there is no objective medical evidence supporting such a rating.  Minn. Stat. ' 176.021, subd. 3; see also Arouni v. Kelleher Constr. Co., Inc., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).  They contend that the necessary documentation of pain and paresthesia persisting despite treatment is not supported by the record, particularly in light of the employee=s testimony that her carpal tunnel symptoms went away when she stopped working at the employer.  We disagree.

 

Minn. R. 5223.0470, subp. 2B(3), provides for a permanent partial disability rating of 3% for a nerve entrapment syndrome of the ulnar, radial, or median nerve at the wrist, evidenced by Apain and paresthesia persisting despite treatment or recurring and persisting despite treatment and substantiated by persistent findings on electrodiagnostic testing.@  The compensation judge found that the employee experienced bilateral hand pain while working for the employer in approximately 1992.  The condition was diagnosed at that time as bilateral carpal tunnel syndrome and accepted by the employer as a work-related condition.  The employee did not undergo surgery but continued to experience some degree of hand numbness and tingling from 1992 through September 2000.  The judge concluded that the employee=s injury of September 18, 2000, was also a substantial contributing factor in her symptoms.  The judge noted that the employee=s EMG testing on January 11, 2001, demonstrated moderate to severe bilateral focal median neuropathies.  In addition, the employee testified that she continues to experience numbness and tingling in both hands with activities such as ironing.  The judge acknowledged that, although the employee=s actual treatment for her carpal tunnel condition has been minimal, the doctors had been unable to prescribe anti-inflammatory medications because of the employee=s Coumadin therapy.  Also, the employee has been reluctant to consider surgery because it would require suspension of her Coumadin, creating an increased risk of phlebitis or deep vein thrombosis.

 

Given the considerations expressed by the compensation judge, the employee=s testimony, and the employee=s medical records, we conclude that the record in this case provides substantial evidence to support the compensation judge=s award of permanent partial disability benefits under the rules.  We therefore affirm that award.