MELISSA A. MICHEL, Employee, v. UNIVERSITY OF MINNESOTA, and SEDGWICK CLAIMS MGMT SVCS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 28, 2003

 

HEADNOTES

 

STATUTES CONSTRUED - MINN. STAT. ' 176.011, SUBD. 18.  Substantial evidence supports the determination of the compensation judge that the employee=s second job constituted regular employment.

 

TEMPORARY TOTAL DISABILITY - TEMPORARY PARTIAL DISABILITY.  Substantial evidence supports the determination of the compensation judge that the employee was entitled to wage loss benefits since she had physical limitations affecting her earning capacity and she cooperated with rehabilitation services.

 

Affirmed.

 

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

Compensation Judge: Peggy A. Brenden

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s determination of the employee=s wage on the date of injury and from the compensation judge=s award of temporary total and temporary partial disability benefits.  We affirm.

 

BACKGROUND

 

On March 27, 2002, Melissa Michel, the employee, was employed on a temporary basis by the employer, the University of Minnesota, to help install a new exhibit at the Weisman Art Museum.  Two days after starting this job and while disassembling a mobile crane or gantry which had been used to remove a previous exhibit, a part of the crane came loose unexpectedly, striking her on the inside of her right knee.  The employee described severe pain after this incident which made it impossible for her to stand for some time. 

 

The employee treated on the same day at the emergency room at Fairview University Medical Center.  No fracture was found and the employee was placed in a knee immobilizer and given pain medication.  She returned to the emergency room on April 8 and was provided with additional treatment and advised to consult with an orthopedist.^[1] 

 

The employer and insurer accepted liability for the employee=s work injury and the first report of injury admitted an hourly wage of $12.71 for a 40 hour week.  The employee also worked for Perkins as a server, having started there in February, and at the time of her injury she was earning an average of $242.21 per week.  The employee also worked as a model at the art department of the University of Minnesota on an on call basis at $17.50 per hour and worked at Mixed Blood Theater doing painting of scenery at $10.00 per hour.  The employee, who was 24 years old on the date of her injury, was a recent college graduate with a degree in art. 

 

The employee continued working at the Weisman Art Museum after her work injury and completed her temporary contract there.  She attempted to continue working at Perkins as well but stopped after one day when she experienced increased right knee pain with the standing and lifting aspects of the job. 

 

The employee saw Dr. Michael Nemanich, orthopedist, on April 15, 2002.  She complained of pain over the anteromedial aspect of her right knee and of a popping sensation in her knee.  She also indicated the pain was getting better.  On examination, Dr. Nemanich noted a pop in the knee with flexion and extension and found tenderness around the patella and over the medial and lateral joint line.  X-rays were normal.  Dr. Nemanich diagnosed right knee pain secondary to patellofemoral pain.  He recommended anti-inflammatory medication and physical therapy.  No work restrictions were provided. 

 

The employee began physical therapy at the Institute for Athletic Medicine on April 29, 2002.  The employee at that time complained of buckling and popping of her right knee while walking as well as difficulty with going up and down stairs, kneeling, squatting, and sitting with knee bent.  The short term goal identified by the physical therapist was to return the employee to work with restrictions or as the doctor permitted in one to two weeks.

 

The employee returned to Dr. Nemanich on May 16, 2002, reported that she was doing better but still having some soreness and achiness in her knee and indicated that she still had popping in her knee when she squatted or knelt.  Dr. Nemanich recommended continued physical therapy and also placed work restrictions on her Aas apparently there has been some confusion regarding what she can and can=t do at work.@  Dr. Nemanich restricted the employee from squatting, bending, kneeling or any lifting more than 10 pounds Auntil this pain improves.@

 

Dr. Nemanich=s office note refers to meeting with the employee and her QRC.  At the hearing in this matter Patrick Wilder testified and indicated that he had been asked by the employer and insurer to provide medical management services to the employee beginning in May.  He provided transportation to the doctors appointments.  Although Mr. Wilder is a QRC he was apparently providing services initially as a disability case manager.  No rehabilitation records or reports are in evidence.

 

Sometime in May 2002 the employee began working for New French Bakery as a cashier at its retail store as well as at its booth at the Farmer=s Market.  She had difficulty performing this job because of increased pain in her right knee and stopped working for the employer at the end of June.  During this time she also worked briefly for 3 Ring Scenic, doing scenery painting and also did some modeling for the U of M Art Department.  She testified she stopped modeling because the necessity of staying in one pose for a long period caused increased pain in her knee.  The employee did not work after July 21. 

 

The employee did not attend all sessions of the recommended program of physical therapy.  The records refer to her as a Ano show@ on at least one occasion but the employee testified that she had not gone to the missed session because of a misunderstanding over the date and time of the appointment. 

 

In early August 2002 the employee called the QRC and advised him that her knee was worsening.  He called and scheduled an appointment on behalf of the employee with Dr. Nemanich.  The employee returned to see Dr. Nemanich on August 28, 2002.  His notes indicate she had slight improvement but had been unable to return to her regular work.  After stopping physical therapy her pain worsened.  On examination Dr. Nemanich noted crepitation with knee range of motion.  Dr. Nemanich recommended an MRI because of her continued symptoms and restricted her to sedentary work.

 

The QRC testified that a rehabilitation plan was developed after the August appointment with Dr. Nemanich and the employee began a job search in accordance with that plan.

 

The employee returned to Dr. Nemanich on September 18, 2002.  The recent MRI was read as being normal and Dr. Nemanich recommended additional physical therapy which began the next day.  Dr. Nemanich continued her sedentary work restrictions.  On October 31 the employee returned to Dr. Nemanich indicating that she had not been able to find sedentary work and asking him to lessen her restrictions.  Dr. Nemanich allowed her to stand and walk for up to four hours a day and changed her anti-inflammatory medicine. 

 

The employee was evaluated on December 4, 2002 on behalf of the employer and insurer by Dr. Thomas Nelson.  Dr. Nelson=s conclusion was that the employee had sustained a contusion to the patella on March 27, 2002 which had resulted in patellafemoral pain syndrome.  His opinion was that the employee did not need any further medical treatment or work restrictions for her knee condition.  In a subsequent report, Dr. Nelson indicated that any need for work restrictions should have ended by May 1, 2002. 

 

The employee returned to work on December 9, 2002, becoming employed as a receptionist for Manhattan Toy.  She testified that her earnings were about $27,000.00 a year which would be about $520.00 a week.

 

This matter was heard on the employee=s claim petition on December 19, 2002 before Compensation Judge Peggy Brenden.  Issues for determination were the average weekly wage of the employee on the date of injury and whether the employee was entitled to temporary total and temporary partial disability benefits from April 1, 2002 and continuing.  In her Findings and Order, served and filed January 6, 2003, the compensation judge determined that the weekly wage of the employee included her earnings from the University of Minnesota and from Perkins for a total of $750.61.^[2]  The compensation judge also found that the employee was entitled to temporary total disability and temporary partial disability as claimed.  The employer and insurer appeal.

 

DECISION

 

1. Weekly Wage

 

At the time of her injury, in addition to her employment at the Weisman Art Museum, the employee worked at Perkins, at the Mixed Blood Theater, and as a model at the Art department  of the University of Minnesota.  The issue at the hearing was whether the employee=s earnings from all of her employment should be used in calculating the weekly wage.  The employee contended the earnings should be used and she alleged a weekly wage of $916.06. 

 

The statute provides that AIf, at the time of the injury, the employee was regularly employed by two or more employers, the employee=s days of work for all such employments shall be included in the computation of weekly wage.@  Minn. Stat. ' 176.011, subd. 18.  In the present case, because the employee=s work at the Mixed Blood Theater and at the Art department were on an on-call basis, the compensation judge found those employments not to be regular and did not include earnings from those jobs in the weekly wage calculation. 

 

The employer and insurer stipulated that the employee=s wage at the Weisman Art Museum was $508.40.  The compensation judge added the average earnings at Perkins, $242.21, to arrive at a weekly wage on the date of injury of $750.61.  

 

The employer and insurer argue on appeal that the wages from Perkins should not have been included because the employee=s employment there was not regular as required by the statute.  The employer and insurer point to evidence in the record that the employee=s schedule at Perkins was very flexible, allowing her to take time off if needed and to work extra shifts if the employer needed her.  The employer and insurer argue that this Aextreme flexibility@ means the employee=s job at Perkins was not regular. 

 

The employee began at Perkins in the beginning of March 2002.  In the three weeks before her injury the employee averaged 21 hours per week of work and earned $726.62.  While her work schedule may have been flexible it was proper for the compensation judge to find this employment regular and to include those earnings in the calculations of the weekly wage.  See also Hormann v. Evangelical Lutheran Good Samaritan Center, slip op. (W.C.C.A. Feb. 2, 2001).

 

The employer and insurer also argue that the result reached by the compensation judge does not accurately reflect the pre-injury earning capacity of the employee, citing Bradley v. Vic=s Welding, 405 N.W.2d 243, 39 W.C.D. 921 (Minn. 1987).  The employer and insurer argue that the employee testified in her deposition and at the hearing that her ultimate goal was to be employed full-time in the field of art.  In the meantime, she intended to supplement her employment in art with additional jobs which would give her full-time employment.  The employer and insurer argue that since the job at the Weisman Art Museum was to be full-time, the employee=s goal had been met and only her earnings there should be used for the weekly wage.

 

While the job at the Weisman Art Museum was to be full-time, it was also temporary and not expected to last more than one month.  There are indications in the record that the employee intended to continue to work at Perkins during the time she also worked at the Weisman Art Museum.  The employee points to her purchase of work shoes for Perkins just days before her work injury.  Whether, in the absence of her work injury, the employee would have worked only at the Weisman Art Museum or whether she would have also worked at Perkins is speculation.  The plain language of the statute calls for earnings to be computed on the basis of employment worked on the date of injury.  It is undisputed that as of that date the employee was regularly employed at Perkins as well as at the Weisman Art Museum.  The compensation judge did not err in refusing to exclude the earnings at Perkins and in including those wages in calculating the weekly wage.

 

2. Wage Loss Benefits

 

The compensation judge determined that, as a result of her work injury, the employee experienced limitations in her physical abilities which contributed to her loss in earnings and earning capacity.  The employer and insurer challenge this determination, arguing that it is not supported by substantial evidence.

 

The employee testified as to the symptoms and limitations she has had in her physical activity since her right knee injury in March 2002.  As indicated in the medical records, her complaints have been consistent and at no time did she indicate that her injury had resolved.  Based upon those complaints, as well as on objective findings of crepitation and popping in the right knee, Dr. Nemanich placed significant restrictions on the employee.  While Dr. Nelson, the IME, reached a different conclusion, the compensation judge did not accept that conclusion.  Contrary to the assertion of the employer and insurer, we do not believe that the statement by the compensation judge in her memorandum that there was Ano question her right knee has impacted and continues to impact her ability to find and hold gainful employment@ means the compensation judge ignored the IME opinion.  It is the province of the compensation judge to consider competing medical opinions and to adopt an opinion as a basis for the decision.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Further, the employee=s testimony constitutes substantial evidence to support a finding that the employee has a disability which affects her ability to work and which limits her earning capacity.  Hanson v. Bagley Hardwood Prods., slip op. (W.C.C.A. January 7, 2002).

 

The employer and insurer also question whether the employee engaged in a diligent job search which would entitle her wage loss benefits. They argue that the employee=s job search was minimal and, since the employee worked at more than one job when she was hurt, the employee should have looked for more than one job. The question of whether the employee has engaged in a diligent job search is one of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989), Cloud v. Leech Lake Housing Auth., slip op. (W.C.C.A. December 11, 2002).  The compensation judge noted that, before August, the emphasis in the employee=s case was on medical management aimed at improving her physical condition so an extensive job search was not required. While not specifically stated, the compensation judge apparently found the employee=s actions reasonable in those circumstances. In addition, the employee did in fact find employment in May 2002 at the New French Bakery and at 3 Ring Scenic. The employee was working with a QRC selected by the employer and insurer beginning in May. The employer and insurer did not provide statutory rehabilitation services and limited the QRC=s involvement to medical management only.  Once job search services were provided by the QRC in August 2002 the question for the compensation judge is whether the employee cooperated with the QRC.  Taylor v. Geo. A. Hormel & Co., 42 W.C.D. 633 (W.C.C.A. 1989), Lunsman v. Lunda Constr., 62 W.C.D. 396 (W.C.C.A. 2002).  There is no evidence that the employee failed to cooperate with the QRC.

 

The decision of the compensation judge is affirmed.