JAMES H. MELIN, Employee, v. LAKEHEAD CONSTRUCTORS and ST. PAUL INS. COS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 26, 2003

 

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - MEDICALLY UNABLE TO CONTINUE; TEMPORARY BENEFITS - FULLY RECOVERED; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBDS. 1(e)(1) and 1(e)(2).  Where, on the date of the commencement of the 2000-2001 benefits period at issue, the employee had apparently been repeatedly back to work since his 1997 work injury, was currently on layoff from work, was not medically unable to perform any work, and was clearly over ninety days post his 1998 MMI, the compensation judge=s award of temporary total disability benefits was clearly erroneous under Minn. Stat. ' 176.101, subds. 1(e)(1) and 1(e)(2), notwithstanding the fact that the employee may have been anticipating surgery related to his work injury.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Where the employee found light duty work for a month while he awaited surgery and for a month following his convalescence from that surgery, and where the employer did not during that time offer the employee alternative higher paying work, substantial evidence supported the compensation judge=s conclusion that the employee=s imminent surgery and his continuing recovery from that surgery sufficiently restricted the employee to overcome the employer and insurer=s argument that the employee could have been working at higher-paying backhoe tasks such as he was able to perform prior to his work injury.

 

TEMPORARY TOTAL DISABILITY; REHABILITATION - COOPERATION; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBDS. 1(e)(1) and 1(e)(2).  Where the compensation judge found expressly that the employee did not conduct a reasonably diligent job search and where the judge nevertheless awarded the benefits at issue based solely on an express but erroneous conclusion that the employee was under and cooperated with a statutory rehabilitation plan during the period at issue, substantial evidence did not support the compensation judge=s award for that portion of the period during which the employee was not subject to a rehabilitation plan, but substantial evidence did support the award for the remainder of the period, and Minn. Stat. ' 176.101, subds. 1(e)(1) and 1(e)(2), did not apply to preclude that award, given that the employee remained restricted by his work injury and had not yet reached a second MMI consequent to injury-related surgery.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Donald C. Erickson

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's awards of temporary total and temporary partial disability benefits and from various subordinate findings supportive of those awards.  We affirm in part and reverse in part.

 

BACKGROUND

 

On March 26, 1997, James Melin sustained a work-related injury to his neck while pulling on a cable in the course of his employment as a heavy equipment operator with Lakehead Constructors, for whom he had worked exclusively since January 8, 1995.  Mr. Melin=s job with Lakehead Constructors [the employer] normally entailed the operation of various heavy, earth-moving machines such as backhoes, bulldozers, forklifts, jib cranes, and pay loaders, and he was frequently subject to lay-offs during seasons of frozen ground.   On the date of his injury, Mr. Melin [the employee] was fifty-one years old and was earning a weekly wage of $731.60.  He was subject to no work restrictions on that date, and, although he had been briefly treated for neck stiffness in the past, he was not currently being treated for any neck-related condition.

 

The employee notified the employer of the injury, and about a month later, on April 25, 1997, he sought treatment at the Ashland Clinic, where he was diagnosed with a likely disc herniation at C7-T1, prescribed anti-inflammatories, and restricted for a week from working.  He subsequently sought treatment also from chiropractor Craig Gilbaugh, who several times restricted him temporarily from working and eventually ordered an MRI scan.  The scan, conducted June 19, 1997, was read to reveal a small disc herniation at C6-7, a mild disc bulge and peridiscal spurring at C5-6, mild to moderate foraminal stenosis also at C5-6, and an annular bulge at T1-2.  Dr. Gilbaugh referred the employee to neurologist Dr. David McKee, who conducted an EMG and in turn referred the employee to neurosurgeon Dr. Richard Freeman.  Dr. Freeman examined the employee on July 30, 1997, and ordered a myelogram with CT scan, which evidently revealed bilateral neural canal narrowing at C5-6 and C6-7, and on August 20, 1997, Dr. Freeman restricted the employee from working and prescribed medication and physical therapy.

 

The employee ultimately remained off work for about two months, and on October 24, 1997, Dr. Freeman, prescribing continued heat, massage, ultrasound, and cervical traction treatments,  released him to return to work on a trial basis, indicating that he was Anot to do any overhead work like on a crane and he is not to do any dozer work.@^[1]  On November 4, 1997, the employee returned to work for the employer on a brief light-duty project doing clean-up work with a payloader and an excavator and thereafter on two projects in North Dakota, mostly operating a backhoe.  On January 29, 1998, Dr. Freeman issued a Health Care Provider Report, on which he indicated that the employee had reached maximum medical improvement [MMI] on October 25, 1997, stating that the employee was Anot to do any overhead work like on a crane.  No dozer work.@  The employee was laid off from employment with the employer about the end of February 1998, when the North Dakota project ended.  On March 10, 1998, he was served with Dr. Freeman=s January 29, 1998, report of MMI, and on May 6, 1998, Dr. Freeman issued a Health Care Provider Report in which he rated the employee=s work-injury-related permanent partial disability at 12% of the whole body, pursuant to Minn. R. 5223.0370, subp. 4D(1).

 

Over the course of the following three years, from early 1998 until late 2000, the employee continued to complain to Dr. Freeman of neck symptoms, including symptoms apparently stemming from an assault on the job back in December of 1997, and he continued to be periodically off work, for reasons including a heart attack suffered in April 1998 and various lay-offs from his work for  the employer and other employers, during which the employee availed himself of unemployment compensation.  Along the way, on October 15, 1998, the employee underwent another cervical MRI scan, which was read to reveal disc space narrowing with some desiccation at C5-6 and C6-7, together with broad-based disc herniation/annular bulging at both levels, and on October 28, 1998, Dr. Freeman recommended Amidline corpectomy at C6 with discectomies at C5-6 and C6-7 and a strut graft autogenous fusion from C5 to C7.@  Any cervical surgery was apparently postponed indefinitely, however, to accommodate surgery instead for carpal tunnel release bilaterally, in February and March 1999.  Further EMG and MRI studies late in 1999 were found by Dr. Freeman to reveal no significant change in the employee=s condition since October 1998, but another EMG in November of 2000 suggested to Dr. Freeman that the employee=s condition had worsened since 1998.  On December 13, 2000, Dr. Freeman concluded that, A[b]ased on his EMG findings and his known MRI assessment, [the employee] would appear to be a candidate at this time for an anterior cervical discectomy, decompression and fusion at C6-7.@  Dr. Freeman=s surgical recommendation was supported in a second opinion by another physician, and authorization for the surgery was granted by the insurer on April 12, 2001.  Three days later, while anticipating the surgery, the employee returned to work as a foreman for a company owned by his brother, Melin Well Drilling, where his primary tasks were answering phones and painting--a job he had previously availed himself of during lay-offs from his work as a heavy machinery operator.

 

On May 3, 2001, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from January 1, 2001, and retraining benefits pursuant to Minn. Stat. ' 176.102, subd. 11(c), consequent to his work injury on March 26, 1997.  The employee continued to work for Melin Well Drilling up until May 15, 2001, when he underwent the discectomy/decompression/fusion surgery recommended by Dr. Freeman.  On May 21, 2001, in their answer to the employee=s claim petition, the employer and insurer acknowledged liability for the employee=s March 26, 1997, work injury, but they denied the benefits claimed in the petition on various grounds, including allegations that, (1) during the benefits period at issue, the employee was off work Adue to an economic layoff from a new position and not as a substantial result of any claimed injury@ for which the employer and insurer were responsible and (2) Athe Employee=s request for retraining is premature and no plan has been submitted@ and A[t]here is also no evidence supporting the claim for retraining.@  On May 31, 2001, about two weeks after his surgery but prior to being medically released by his doctor to return to work, the employee returned again to working for Melin Well Drilling.

 

On July 3, 2001, Dr. Freeman released the employee to return to work without restrictions, and ten days later, on July 13, 2001, the employee returned to work for the employer, primarily at backhoe work but also on the jib crane and high forklift.  In the course of this work, the employee noticed that his neck began to hurt and his right hand would periodically go numb.  On September 26, 2001, the employee returned to see Dr. Freeman, to whom he complained of increased neck discomfort while looking up from the high forklift and jib crane.  Upon examination, Dr. Freeman found the employee=s cervical range of motion more impaired than it had been two months earlier, and he related the increase to the employee=s work on the Jib crane and high forklift.  Dr. Freeman diagnosed cervical myofascial pain with dysesthesia of the upper extremities and ordered another EMG/NCV and another cervical MRI scan, Ato reassess the cervical status and make certain that there is no evidence of any pseudarthrosis or evolving problems in h[is] neck.@

 

About October 11, 2001, the employee was laid off from his work with the employer. About a week later, on October 19, 2001, he underwent the cervical MRI scan ordered by Dr. Freeman, which revealed increased spinal stenosis.  On October 25, 2001, Dr. Freeman concluded that this stenosis was consequent to the employee=s surgery and the cause of his increased symptoms, although the change since the 1998 study was slight.  On November 16, 2001, Dr. Freeman noted that there was Ano question that [the employee=s] discomfort appears to be related to work being done overhead.  Additionally, frequent head turning or chronic posturing of the head and neck also appear to be relatively contraindicated by virtue of his cervical problems.@ On that conclusion, Dr. Freeman released the employee to return to work with restrictions, indicating that he was Anot allowed to perform overhead work@ and was Anot to work with frequent head turning,@ adding that A[n]o other restrictions appear to apply at this time to his current job activity.@  Subsequently, in that same month, the employee registered with the referral list of his union, the Operating Engineers Union.

 

On May 1, 2002, the employee began receiving rehabilitation assistance from QRC Kevin Eells.  On May 7, 2002, QRC Eells contacted the employer about possible employment for the employee, but an offer was not extended, pending the employer=s receipt of information regarding the employee=s updated restrictions.  On about May 15, 2002, QRC Eells formulated an R-2 rehabilitation plan that called in part for a return to work with the employer, determination of updated restrictions from Dr. Freeman, and job search if it should be determined that the employer did not have work within those restrictions. The employee returned to see Dr. Freeman on May 20, 2002, complaining that Aapproximately two weeks ago, while holding a log, he experienced a sharp pain in his neck and his left upper extremity@ and since then had felt the fingers on his left hand lock up on three separate occasions and experienced occasional tingling in his right arm and an increased tendency to drop objects from his right hand.  Dr. Freeman suspected that the employee=s cervical myofascial discomfort and upper extremity dysesthesia were related to a residual neural canal narrowing at C6-7 and neural canal stenosis on the right at C5-6, and he ordered an upgraded MRI scan.  On May 31, 2002, QRC Eells= rehabilitation plan was forwarded to the insurer, which evidently endorsed the plan on June 3, 2002.

 

On June 16, 2002, the employee returned to work at Melin Well Drilling at earnings that were less than his date-of-injury wage.  Short-term backhoe work subsequently became available at the employer, and the employer evidently informed the employee=s union representative of that fact but not the employee or his QRC.  On June 20, 2002, Dr. Freeman read the MRI scan that he had recently ordered of the employee=s neck, conducted on June 4, 2002, to reveal no significant abnormalities.  On July 17, 2002, on a Health Care Provider Report apparently faxed to the office of the employer and insurer, he continued the employee=s November 16, 2001, restrictions against overhead work and frequent head turning, citing both A03/26/97" and AMay 2002" as dates of injury.  The report indicated that the employee had reached MMI with regard to both of those injuries and that there had been Ano change in his disability since it was recorded for the March 26, 1997 injury.@

 

The matter came on for hearing on the following day, July 18, 2002, on which date the employee remained employed at a wage loss with Melin Well Drilling.  Issues at hearing included the employee=s entitlement to temporary total disability benefits from December 13, 2000, through April 14, 2001, from May 13, 2001, through May 30, 2001, and continuing from October 12, 2001, and temporary partial disability benefits from April 15, 2001, through May 12, 2001, and from May 31, 2001, through July 2, 2001.  Secondary issues included the date on which the employee reached MMI, whether the employee was disabled from his date-of-injury employment, whether any of the employee=s time off work was due to seasonal layoffs rather than physical disability, whether the employee conducted a reasonably diligent job search for alternative employment during his seasonal layoffs, whether the employee ever withdrew from the labor market for reasons unrelated to his work injury, and whether the employee was restricted from employment from December 13, 2000, through May 15, 2001.  At the hearing, the insurer=s attorney served on the employee the Health Care Provider Report from Dr. Freeman that had been faxed to him the day before, in which Dr. Freeman had opined that the employee had reached MMI subject to an 11.5% permanent partial disability of the body as a whole, pursuant to Minn. R. 5223.0370, subps. 4D and 5A.  The employee testified at hearing, as did his union representative, that, contrary to the position of the employer, backhoe work at the employer would be outside his restrictions.  QRC Eells testified essentially that, in his opinion, an on-site analysis would be needed to make that determination. Also testifying at hearing was the employer=s equipment manager, John Lohse, who testified that, while the employer did not currently have any work available for the employee, he expected the employer to have work available for the employee within his restrictions in the future.

 

By findings and order filed December 10, 2002, the compensation judge concluded in part that the employee was entitled to temporary total and temporary partial disability benefits for all periods at issue.  Supportive of this conclusion, the judge determined at item 1.b. of his AStatement of Issues and Decision@ that the employee had reached MMI on March 10, 1998, but had

 

subsequently required and received surgery for his neck condition.  The subsequent surgery indicates he became medically unable to continue working prior to the surgery.  Another finding [of] notice and service of MMI were required after the employee became medically disabled to continue working and required surgery.  The notice of MMI served March 10, 1998 is not a defense to the employee=s current request for benefits.

 

The judge found in the following item of his AStatement of Issues and Decision,@ item 1.c., that the employee was at MMI as of the date of hearing, July 18, 2002, Aand, thus, any TTD benefits are limited to the period ending 90 days after the hearing,@ and at item 1.d., with regard to the subissue of A[w]hether the employee is not entitled to reinstatement of [temporary total disability] benefits as per Minnesota Statutes ' 176.101, subd 1(e)(1) as he returned to work,@ he determined generally that Athe employee is entitled to reinstatement of benefits as he was laid off prior to reaching MMI after he became medically unable to continue working.@^[2]  The employer and insurer appeal.

 

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 found that the employee was entitled to all wage replacement benefits at issue: (1) temporary total disability benefits from December 13, 2000, through April 14, 2001; (2) temporary partial disability benefits from April 15, 2001, through May 12, 2001; (3) temporary total disability benefits from May 13, 2001, through May 30, 2001; (4) temporary partial disability from May 31, 2001, through July 2, 2001; and (5) temporary total disability benefits continuing from October 12, 2001.  The employer and insurer contend on appeal that all of these awards except, apparently, the award for temporary total disability from May 13, 2001, through May 30, 2001, are unsupported by substantial evidence on various grounds.^[3]

 

1.  Temporary Total from December 13, 2000, through April 14, 2001

 

In item 1.a.(1) of the AStatement of Issues and Decision@ section of his Findings and Order, the compensation judge explained his award of temporary total disability benefits for the period December 13, 2000, through April 14, 2001, as follows:

 

Dr. Freeman recommended [that] the employee receive neck surgery on December 13, 2000.  Due to the employee=s worsened neck symptoms and deteriorating neck condition, he was unable to work at his normal occupation during this period of time.  He is entitled to the [temporary total disability] benefits claimed for this period.

 

The employer and insurer contend that the judge=s award of benefits for this period is unsupported by the evidence, in that (1) the employee was not subject to any restrictions during the period, (2) the employee was off work due to a seasonal layoff at the time, not due to any work-injury-related disability, (3) the employee conducted no job search during the period, and (4) the award was contrary to Minn. Stat. ' 176.101, subds. 1(e)(1) and 1(e)(2).  We agree that the award was contrary to the statute.

 

Minn. Stat. ' 176.101, subds. 1(e)(1) and 1(e)(2) (1997), provide as follows:

 

(e) Temporary total disability compensation shall cease when the employee returns to work.  Except as otherwise provided in section 176.102, subdivision 11, temporary total disability compensation may only be recommenced following cessation under this paragraph, paragraph (h), or paragraph (j) prior to payment of 104 weeks of temporary total disability compensation and only as follows:

 

(1) if 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 within one year after returning to work if the layoff or termination occurs prior to 90 days after the employee has reached maximum medical improvement.  Recommenced temporary total disability compensation under this clause ceases when any of the cessation events in paragraphs (e) to (l) occur; or

 

(2) if temporary total disability compensation ceased because the employee returned to work or ceased under paragraph (h) or (j), it may be recommenced if the employee is medically unable to continue at a job due to the injury.  Where the employee is medically unable to continue working due to the injury, temporary total disability compensation may continue until any of the cessation events in paragraphs (e) to (l) occurs following recommencement.  If an employee who has not yet received temporary total disability compensation becomes medically unable to continue working due to the injury after reaching maximum medical improvement, temporary total disability compensation shall commence and shall continue until any of the events in paragraphs (e) to (l) occurs following recommencement.  For purposes of commencement or recommencement under this clause only, a new period of maximum medical improvement under paragraph (j) begins when the employee becomes medically unable to continue working due to the injury.  Temporary total disability compensation may not be recommenced under this clause and a new period of maximum medical improvement does not begin if the employee is not actively employed when the employee becomes medically unable to work.  All periods of initial and recommenced temporary total disability compensation are included in the 104-week limitation specified in paragraph (k).

 

On the date of the commencement of the benefits period here at issue, December 13, 2000, the employee had apparently been repeatedly back to work since his 1997 work injury, was most recently on layoff from work with Melin Well Drilling over a year after first returning to work, and was clearly over ninety days post his attainment of MMI on March 10, 1998.  Therefore he was not entitled to recommencement of benefits under subdivision 1(e)(1) of the Minn. Stat. ' 176.101.  He would be entitled to recommencement of benefits under subdivision 1(e)(2) of that section only if he was Amedically unable to continue at a job@ and only if he was Aactively employed when [he became] medically unable to work.@  Minn. Stat. ' 176.101, subd. 1(e)(2).  We acknowledge that Dr. Freeman had recommended surgery for the employee on the start date of the period at issue, as well as over two years earlier, on October 28, 1998.  Dr. Freeman did not, however, expressly restrict the employee from working as of either date, nor, although he did testify to telling his doctor that Athe pain is getting so bad, I=ve got to do something with it,@ did the employee testify that he was totally unable to work as of the later date.  Particularly given also that the employee did, in fact, subsequently return to work for a period prior to his surgery, and given that, at any rate, any increase in disability and potential restriction that might be inferred from Dr. Freeman=s notes on December 13, 2000, did not occur while the employee was actively employed, subdivision 1(e)(2) is also inapplicable to entitle the employee to total disability benefits during the period at issue.  The judge=s determination that the employee was medically unable to continue working during this period is therefore unsupported by substantial evidence, and his award is therefore clearly erroneous under Minn. Stat. ' 176.101, subd. 1(e).^[4]

 

Because the judge=s conclusions with regard to the benefits period at issue were unsupported by substantial evidence and clearly erroneous under Minn. Stat. ' 176.101, subd. 1(e), we reverse the compensation judge=s award of temporary total disability benefits for the period December 13, 2000, through April 14, 2001.  Because we are reversing on the basis of the employee=s restrictions and the statute, we need not address the employer=s arguments as to the diligence of employee=s job search.

 

2.  Temporary Partial from April 15, 2001, through May 12, 2001, and from May 31, 2001, through July 2, 2001

 

In the AStatement of Issues and Decision@ section of his Findings and Order, the compensation judge explained his award of temporary partial disability benefits for the period April 15, 2001, through May 12, 2001, as follows: AWhile awaiting surgery the employee worked as a foreman for his brother=s well drilling company.  I find [that] the employee=s earnings do accurately reflect his earning capacity and [that] therefore he is entitled to the [temporary partial disability] benefits claimed.@  In that same section of his decision, the judge explained his award of temporary partial benefits for the period May 31, 2001, through July 2, 2001, as follows: AThese earnings were generated when the employee was recuperating from surgery and before Dr. Freeman released him to return to work without restrictions.  I find the employee=s earnings do accurately reflect his earning capacity during this period of time and therefore he is entitled to the benefits claimed.@  The employer and insurer contend that these conclusions of the judge are unsupported by substantial evidence, in that the employee was not formally subject to any work restrictions during these periods and, even if he were restricted and otherwise entitled to benefits, his actual wages at Melin Well Drilling did not represent his true earning capacity, in that he remained during those periods capable of performing date-of-injury work at least as a backhoe operator, as evident in the testimony of the employer=s equipment manager, John Lohse.  We are not persuaded.

 

The employee was actively engaged in employment with Melin Well Drilling during both of the post-injury benefits periods at issue, and he earned wages for that employment.  An employee=s post-injury wages create a rebuttable presumption of the employee=s actual earning capacity, see, e.g., Noll v. Ceco Corp., 42 W.C.D. 553, 557 (W.C.C.A. 1989), absent a showing by the employer and insurer of "something more than a theoretical possibility of a [different] position or wage," Patterson v. Denny's Rest., 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. Minn. 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).  Moreover, a finding of earning capacity is not delegated to rehabilitation experts but is a matter of ultimate fact to be determined by the compensation judge, based upon the relevant evidence of record.  Noll, 42 W.C.D. at 557.

 

In this case, the employee found light duty work with Melin Well Drilling both for a month while he awaited his surgery and for a month following the more critical first two weeks of his convalescence, as he awaited formal release to perhaps more strenuous work by his doctor.  In such circumstances, and particularly given that the employer did not during that time offer the employee alternative higher paying work, it was not unreasonable for the compensation judge to conclude that the employee=s imminent surgery and his continuing recovery from that surgery sufficiently restricted the employee to overcome the employer and insurer=s argument that the employee could have been working at higher-paying backhoe tasks such as he was able to perform prior to his work injury.  Because the judge=s decision on this issue was not unreasonable, we affirm the compensation judge=s award of temporary partial disability benefits from April 13, 2001, to May 12, 2001, and from May 31, 2001, to July 2, 2001.

 

3.  Temporary Total Continuing from October 12, 2001

 

In the AStatement of Issues and Decision@ section of his Findings and Order, the compensation judge explained his award of temporary total disability benefits for the period continuing from October 12, 2001, as follows:

 

I find [that the] employee was off work on a seasonal layoff and did not make a reasonably diligent job search for employment within his restrictions.  However, the employee was under no obligation to make a reasonably diligent job search as he was under a statutory rehabilitation plan and he cooperated with the plan.  The employee is entitled to [temporary total disability] benefits to the date of the hearing, and a maximum, up to 90 days thereafter as he was at MMI as of the date of the hearing.

 

The employer and insurer contend that the judge=s award is unsupported by substantial evidence and contrary to law, in that (1) the employee was not subject to a rehabilitation plan during the period at issue until after May 22, 2002, and (2) this award, like the other temporary total disability award here at issue on appeal, was contrary to Minn. Stat. ' 176.101, subds. 1(e)(1) and 1(e)(2).  We agree that the judge=s award is based on a factual error for part of the period at issue, in that the employee was not even subject to a rehabilitation plan until May 15, 2002.

Having concluded expressly that the employee did not conduct a reasonably diligent job search during the period at issue, the compensation judge nevertheless awarded the benefits at issue based on a simple conclusion that the employee was under no obligation to search for work during the period because Ahe was under a statutory rehabilitation plan and he cooperated with the plan.@  As the employer and insurer have argued, this basis for the award constitutes a factual assumption that is clearly erroneous for a large part of the period at issue, in that there was no rehabilitation plan in place until May 15, 2002.  The employee has argued that A[w]hat the Compensation Judge actually found was that the Employee did not engage in a diligent job search and that during part of this period the Employee was subject to an R-2 Rehabilitation Plan@ (underscoring in original).  We see no evidence that A[w]hat the judge actually found@ was that the employee was subject to an R-2 Rehabilitation plan Aduring part of this period@ only.  The language of the judge=s Adecision@ on this issue is concise and appears to us entirely unambiguous: A[T]he employee was under no obligation to make a reasonably diligent job search as he was under a statutory rehabilitation plan and he cooperated with the plan@ (emphasis added).  We construe the judge=s word Aas@ to mean Abecause,@ and the clause that that word introduces is factually incorrect.  In that the judge offers no other valid reason why the employee should be excused from a reasonably diligent job search during that part of the period at issue that precedes the May 15, 2002, rehabilitation plan,^[5] we reverse the judge=s award of temporary total disability benefits for the period October 12, 2001, through May 14, 2002.

 

The employee was, however, subject to a rehabilitation plan for the period continuing from May 15, 2002.  The employer and insurer argue that, even during this period of rehabilitation assistance, benefits were erroneously awarded, in light, again, of Minn. Stat. ' 176.101, subds. 1(e)(1) and 1(e)(2).  With regard to this period, however, the employee had not yet, until the day before hearing, reached MMI from the event of his discectomy/decompression/fusion surgery, which clearly rendered him medically unable to work for at least the period of his immediate convalescence.  Given this fact, the statute is not triggered to disqualify the employee from benefits on an MMI basis, in that, although he had returned to work following his surgery, his layoff had occurred within one year after his return to work and prior to ninety days post MMI.  Because it was neither unreasonable with regard to the employee=s obligation to search for work nor clearly erroneous with regard to the statutory recommencement provisions, we affirm the compensation judge=s award of temporary total disability benefits continuing from the date of the issuance of his rehabilitation plan, May 15, 2002.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.