AUTUMN SATTLER, Employee, v. PIPESTONE COUNTY MEDICAL CTR., SELF-INSURED, Admin=d by MINN. COUNTIES INS. TRUST/RSKCO, Employer/Appellants, and MN DEP=T OF HUMAN SERVS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 18, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  There is ample evidence to support the compensation judge=s finding that the employee sustained a work injury to her left shoulder on September 28, 2001.

 

NOTICE OF INJURY.  Substantial evidence supports the compensation judge=s finding that the employee gave actual notice of the September 28, 2001 personal injury no later than October 16, 2001, well within the 30 day statutory limit for giving notice.

 

WEEKLY WAGE - CALCULATION.  Substantial evidence supports the compensation judge=s determination that the employee=s earning history during the one week in which she performed work duties was sufficient to determine the employee=s weekly wage.  The judge properly excluded from consideration the following two weeks during which the employee performed no work duties and had no earnings.  The compensation judge, however, used an improper method to compute the daily wage, and the amount of the employee=s weekly wage is accordingly modified using the statutory method of calculation pursuant to Minn. Stat. ' 176.011, subd. 3.

 

TEMPORARY TOTAL DISABILITY - MISCONDUCT.  As the employer paid no work­ers= compensation benefits to the employee, temporary total disability benefits could not be Arecom­menced@ and Minn. Stat. ' 176.101, subd. 1(e)(1), does not apply.  Substantial evidence supports the award of temporary total disability where the employee=s absences were due to illness or other events not rising to the level of  Awilful and wanton disregard of the employer=s interests@ so as to constitute misconduct under workers= compensation law.

 

TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET.  A voluntary move to a different labor market, even one with fewer employment opportunities, does not automatically constitute a withdrawal from the labor market.  Under the circumstances in this case, we cannot conclude the employee=s move from Pipestone, Minnesota, to Madras, Oregon, constituted a withdrawal from the labor market.

 

JOB SEARCH - SUBSTANTIAL EVIDENCE.  While evidence of an ongoing job search was somewhat minimal, we cannot conclude, on these particular facts, that the employee=s job search was unreasonable Aunder the circumstances,@ or that the award of temporary total disability was so manifestly contrary to the evidence as to require reversal.

 

PENALTIES.  The compensation judge did not abuse his discretion in awarding penalties under Minn. Stat. ' 176.225, subd. 1, where the denial of timely notice was clearly contrary to the facts and law, and where there was substantial evidence from which the compensation judge could reasonably infer that the employer failed to make a good faith investigation of the facts prior to denying the claim.           

 

Affirmed as modified.

 

Determined by Johnson, C.J., Wilson, J. and Stofferahn, J.

Compensation Judge:  James R. Otto

 

                                                                      OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals from the compensation judge=s findings that (1) the employee sustained a personal injury on September 28, 2001 arising out of and in the course of her employment; (2) the employee gave timely notice of her personal injury; (3) the employee=s weekly wage as of the date of injury was $269.66; and (4) the employee is entitled to temporary total disability benefits from September 29, 2001 to the date of hearing.  The self-insured employer further appeals the compensation judge=s award of a penalty, pursuant to Minn. Stat. ' 176.225, for  frivolous denial of a claim and/or interposition of a frivolous defense.  We affirm as modified.

 

BACKGROUND

 

Autumn Sattler, the employee, was hired  by the Pipestone County Medical Center, the employer, on September 21, 2001, as a part-time nursing assistant in the Ashton Care Center, a long-term care facility.  It was anticipated the employee would work between 20 and 30 hours per week.  During the first week or two the employee was to receive orientation, consisting primarily of Ashadowing,@ that is, following co-workers around, observing the work and learning policies and procedures.  During the first week of scheduled work, the employee was ill on Monday, September 24, and left work early on Tuesday, September 25, due to the illness of her four year old son.  On Wednesday, September 26, she was seen by Dr. David Balt for a re-check and completed an em­ployee health screen required by the employer, but did not work.  (Er. Ex. E; Ee Ex. L.)  The em­ployee completed a full, eight-hour work day on September 27.

 

On Friday, September 28, 2001, the employee worked the night shift, from 11:00 p.m. to 7:00 a.m.  At about 1:00 a.m., the employee and a co-worker attempted to turn a heavy patient in bed using a draw sheet.  As the employee pulled up to lift the patient, the co-worker op­posite her gave way and did not lift.  The employee heard her arm Asnap@ and felt immediate pain.  She thought she had pulled a muscle in her arm.  Another nursing assistant was present and assisted the co-worker in completing the turn.  The employee finished the shift, but testified she observed only and did not attempt to help anyone ambulate, dress anyone, carry trays or do any lifting.

 

Sometime prior to September 28, the employee had volunteered to work two five hour swing shifts, between 4:00 and 9:00 pm on the weekend.  Although she was not trained in the shift, the employee thought she could do enough to alleviate some of the stress of working short-staffed.  The evening of September 29, the employee worked as a float, answering call lights, passing snacks, filling ice waters and similar activities.  At some point during the evening, an argument occurred between the employee and another nurs­ing assistant about what the em­ployee should be doing.  Connie Harkema, the charge nurse on the shift, agreed the employee was not getting the training or supervision she needed that night.  They discussed the situation and Ms. Harkema agreed that it was Aok@ for the employee not to come into work the following day.

 

 On Monday, October 1, the employee testified she spoke to the Director of Nurses, Sandy Walters, and let her know what had happened on the weekend.  The employee also told her she had pulled a muscle.  Ms. Walters advised the employee to keep her posted.  The employee was scheduled to work October 2 and 3, but missed work when her refrigerator broke down.  On October 4, the employee brought her son in to see Dr. Balt for flu-like symptoms.  She testified she mentioned the pulled muscle in her shoulder to Dr. Balt and was given some Vioxx, an anti-inflammatory medica­tion.  The employee returned to see Dr. Balt on October 9, com­plaining of nausea and Aaching all over@ since the previous Friday, October 5, and reporting pain in the shoulder joint or joints.

 

On October 15, the employee again saw Dr. Balt, reporting the aching all over feeling had resolved, but complaining of left shoulder pain.  On examination, the doctor noted crepitus, parti­cularly with external and internal rotation with abduction.  An x-ray taken that day showed no fracture or dislocation, and was otherwise negative.  Dr. Balt ordered an MRI scan of the shoulder and took the em­ployee off work.  The employee testified that after seeing the doctor, she called and left a voice message for Ms. Walters, letting her know Dr. Balt believed she had something more than a pulled muscle and she would be having an MRI scan.  According to the employee, Ms. Walters returned the call that day, and asked her to come in and file a workers= compen­sation claim.  They also discussed a functional capacities evaluation of the employee scheduled for the following day, October 16.  Ms. Walters told the employee she did not want her to go if she was not Aone hun­dred percent.@  (T. 28, 42.)

 

On October 16, the employee telephoned Claudia Krueger, the employer=s human resources manager.  The employee told Ms. Krueger she had sustained a work injury and was told to come into the office to fill out the forms.  Ms Krueger also informed the employee she was going to be terminated.  The employee went into the office on October 18th and completed  a written ac­cident report.  At that time Ms. Krueger handed the employee a letter terminating her employment effective October 12, 2001, the last day she was scheduled for work, for absenteeism and failure to follow through with the required health screen and functional capacities assessment.

 

During the same time, an MRI scan was taken on October 16 which was read as showing a full thickness supraspin­atus tear with asso­ciated joint effusion.  Dr. Balt=s office referred the em­ployee to the Orthopedic Institute in Sioux Falls, South Dakota, where she was seen on Oc­tober 17 and 18.  Dr. Robert Suga, an ortho­pedic surgeon, recommended surgical repair of the shoulder.  A subacromial decompression/acromioplasty of the left shoulder was performed by Dr. Suga on October 22, 2001.  No evidence of a rotator cuff tear was found during the surgery, but a stage II impinge­ment with a hook-like configuration of the acromion was found, with some macer­ation of the tendon in the area of impingement.  The employee was discharged the following day and referred for physical therapy three times a week for four weeks.

 

The self-insured employer served a notice denying primary liability on October 23, 2001, asserting the employee failed to report the injury in a timely manner, and that there was no evidence of a causal relationship between the employee=s work and the claimed injury.  As of the date of hear­ing, the employer had paid no wage loss benefits or medical expenses.

 

The employee was without income, and in early December 2001, moved to Madras, Oregon, to live with her parents.  She worked at Jericho Adult Foster Care, in Culver, Oregon, for three or four weeks during the month of December.  Sometime thereafter, the employee enrolled in a jobs program through the Oregon Department of Human Services.

 

On May 10, 2002, the employee was examined by Dr. Mark Wikenheiser at the request of the employer and insurer.  Dr. Wikenheiser concluded the employee had underlying degenerative changes in the anterior acromion of the left shoulder, and sustained a rotator cuff tendinitis as a result of the September 28, 2001 work incident.  He further opined the work incident was a substantial con­tributing cause of the employee=s need for surgery.  Dr. Wikenheiser con­cluded she was not yet at maximum medical improvement, and recommended a formal physical therapy program to improve range of motion and strengthen the left shoulder.  The doctor believed the employee was capable of performing light duty work with restrictions at that time.  On June 27, 2002, Dr. Wikenheiser provided a supplementary report, indicating that if the history provided by the employee was not accurate, it was unlikely the work activities of September 28, 2001 would have caused her shoulder tendinitis.

 

The employee filed a claim petition on February 15, 2002, seeking temporary total dis­ability benefits from and after September 29, 2001, payment of medical expenses, and rehabili­tation services.  Sometime later, the petition was amended to add a claim for penalties.  The case was heard by a compensation judge at the Office of Administrative Hear­ings on June 28, 2002.  The judge found the employee had sustained a personal injury to her left shoulder on September 28, 2001, and awarded payment of wage loss, medical and rehabilitation benefits.  The compensation judge additionally awarded a penalty of 30 percent of the total compensation payable to the em­ployee.  The self-insured employer appeals.  

 

DECISION

 

1.  Causation

 

The appellant argues that substantial evidence does not support the compensation judge=s finding that the em­ployee sustained a per­sonal injury to the left shoulder on September 28, 2001.  The employer asserts the employee volunteered to work five hour shifts on September 29 and 30, 2001, after the claimed injury; that the employee left work on September 29, 2001 due to a dis­agreement with a co-worker and not due to any problem with her shoulder; that notice of the claimed injury was not given to the employer until October 18, 2001; and the employee did not work as scheduled on October 2, 3, 5, 10, 11, and 12, first due to a broken refrigerator and then due to strep throat and a sore shoulder.  The employer contends these facts establish the employee did not sustain an injury as alleged on September 28, 2001.  We are not persuaded.

 

The sole issue before this court on appeal is whether the 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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the find­ings must be af­firmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).   In this case, the evidence amply supports the compensation judge=s determination that the employee sustained a personal injury to her left shoulder on September 28, 2001.  The employee=s testi­mony at hearing was consistent with the history she gave to all of the medical providers who treated or examined her.  A memorandum from Ms. Walter, the Director of Nurses, faxed on October 18, 2001, indicates the employee did not work as scheduled on October 5, 6, 10, 11 and 12, due, in part, to a sore shoulder.  (Er. Ex. E.)  The sole medical evidence supporting the employer=s denial of causa­tion is the AClari­fication@ provided by Dr. Wikenheiser on June 27, 2002.  In this supplementary report, Dr. Wiken­heiser recited facts provided by the employer stating, Aif the above report is accurate, I would not relate her shoulder symptoms to the alleged September 28, 2001 work injury.  If, however, the his­tory she provided to me and to her orthopedic surgeon is correct, then I believe the tendinitis is related to the alleged work incident.@  (Er. Ex. A.)  The compensation judge found the employee a credible witness and accepted her testimony.  The evidence of record clearly supports the compensation judge=s finding of a work injury on September 28, 2001, and we affirm.

 

2.  Notice of Injury

 

The self-insured employer asserts the employee failed to give proper notice of the injury and is precluded from payment of workers= compensation benefits.  This argument is entirely without merit.

 

The notice statute, Minn. Stat. ' 176.141, provides, A[i]f the notice is given or [actual] knowledge obtained within 30 days from the occurrence of the injury, no want, failure, or inaccuracy of a notice shall be a bar to obtaining compensation.@  The employee testified that ap­proximately an hour after the injury occurred, she told the charge nurse at the front desk she thought she had pulled a muscle, but wanted to work the remainder of the shift without doing any lifting.^[1]  The employee further testified that on Monday, October 1, 2001, she spoke to Ms. Walters, the Director of Nurses, and told Ms. Walters she thought she had pulled a muscle but didn=t think it was a big issue.  (T. 36.)  Claudia Krueger, the employer=s human resources director, testified Ms. Walters had supervisory auth­ority over the employee and an injury would normally be reported to the charge nurse or Ms. Walters.  (T. 102, 106, 108.)  On October 15, 2001, after seeing Dr. Balt, the employee called and left a voice mail mes­sage for Ms. Walters stating the doctor thought she had something more than a pulled muscle.  According to the employee, Ms. Walters returned her call later that day, and asked her to come in and file a workers= compen­sation claim.  (T.42.)  Both the employee and Ms. Krueger testified the employee contacted Ms. Krueger by phone on October 16, 2001, and that the employee told Ms. Krueger she had injured her shoulder at work.  The em­ployee went to Ms. Krueger=s office on October 18, 2001, and completed a written workers= compen­sation report. (T. 43-44, 105-106.) 

The compensation judge found the employee gave actual notice of the personal injury no later than October 16, 2001 and written notice of her left shoulder injury on October 18, 2001.  Based on the employer=s evidence alone, there is no question but that the employee gave notice of the September 28, 2001 injury to the em­ployer within 18 days, well within the statutory 30 day limit.

 

3.  Weekly Wage

 

The compensation judge found the employee=s daily wage was $72.24, based on an hourly wage of $8.63, plus a $0.40 adjustment for evening and night work, and an eight-hour day.  The compensation judge further found the employee=s weekly wage on September 28, 2001 was $269.66.  In his memorandum, the judge indicated the calculations were based on 3-1/2 days of work -- one-half day on September 25 and full days on September 27, 28 and 29.  The judge concluded this work week constituted an appropriate period for calculating the employee=s weekly wage.  The self-insured employer contends these findings are not supported by substantial evidence and are contrary to law.

 

Minn. Stat. ' 176.011, subd. 3, provides, in pertinent part, that if the amount of the daily wage received by the employee,

 

was irregular or difficult to determine, or if the employment was part time, the daily wage shall be computed by dividing the total amount of wages . . . the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages . . . was earned . . . . If the employee worked or earned less than a full day=s worth of wages . . . , the total amount earned shall be divided by the corresponding proportion of that day.

 

The employee was hired to work part time, two or three days a week, eight hours a day.  She worked for the employer only a brief time, performing nursing assistant duties during the first week of employment only.  The compensation judge did not err in concluding the employee=s earnings history during that week was sufficient to determine the employee=s weekly wage.  The judge properly excluded from consideration the following two weeks during which the employee performed no work duties and had no earnings.

 

We conclude, however, the compensation judge used an improper method for computing the daily wage.  Evidence of the employee=s actual hours of work and actual earnings was submitted by the parties, thus the statutory method of calculation is applicable.  Based on the employee=s time sheet, during the week ending September 30, the employee worked 6.25 hours, presumably on September 25 (see Er Ex. E), 8 hours on September 27, and 8 hours on September 28, the day of the injury, for a total of 22.25 hours.  Daily wage is calculated on the employee=s earnings up to and including the day of the injury.  Patrick v. Christensen Family Farms, 63 W.C.D. ___ (W.C.C.A. 2002).  Thus, the five hours of overtime work on September 29, the weekend swing shift, are not includable in the pre-injury weekly wage calculation.  Based on the Employee Payroll History, the employee earned $192.02 for her 22.25 hours of work that week.^[2]  (See Ee Ex. I; Er Exs. D, E.)  Dividing $192.02 by the days and proportional days worked (2 + [6.25 ) 8] = 2.78) results in a daily wage of $69.07, rather than the $72.24 found by the compensation judge.  We modify Finding 6 accordingly.

 

The judge then found the employee=s weekly wage was $269.66 on September 28, 2001 based, apparently, on the employee=s total earnings for the pay period ending September 30, 2001.  As discussed above, this amount includes five hours of overtime earned on September 29, 2001, after the date of injury.  The compensation judge=s weekly wage determination must, therefore, be adjusted accordingly.  The weekly wage is calculated by multiplying the daily wage by the number of days Anormally worked@ for the employment involved.  If an employee works an irregular number of days, or less than five days, per week,

 

[T]he number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment . . . by the number of weeks in which the employee actually performed such duties.

 

Minn. Stat. ' 176.011, subd. 18.  The employee actually performed the duties of her employment on three days (pre-injury) during the one week in which she performed work duties.  Therefore, based on the daily wage, as modified, the employee=s average weekly wage is $207.21 (3 x $69.07).

 

4.  Temporary Total Disability

a.  Misconduct.  The self-insured employer contends the employee is disqualified from re­ceiving tem­porary total disability benefits because she was terminated for excessive absences con­stituting Amis­conduct@ under Minn. Stat. ' 176.101, subd. 1.(e)(1).  This statute, however, applies only to Arecom­mence­ment@ of temporary total disability benefits.  In this case, the employer has paid no workers= compensation benefits to the employee and temporary total benefits, therefore, could not be Arecom­menced.@  Since this case deals with the employee=s initial entitlement to benefits and not a recommencement of those benefits, the misconduct statute does not apply.  See Stute v. Tom Thumb Food Mkts., 59 W.C.D. 625 (W.C.C.A. 1999).

 

b.  Withdrawal from the labor market.  The appellant contends that by moving to Madras, Oregon, population approximately 3,500, the employee withdrew from the Minnesota labor market and is disqualified from receipt of benefits.  We disagree.  An employee has the right to choose where she will live.  Paine v. Beek=s Pizza, 323 N.W.2d 812, 815, 35 W.C.D. 199, 205 (Minn. 1982).  A voluntary move to a different labor market, even one with fewer employment opportunities, does not automatically constitute a withdrawal from the labor market.  Rather, the standard is one which measures the employee=s actions against the statutory objectives of reducing workers= com­pensation costs and bettering the employee=s situation.  Kurrell v. Nat=l Con Rod, Inc., 322 N.W.2d 199, 35 W.C.D. 76 (Minn. 1982); Giles v. State, Dep=t of Transp., 59 W.C.D. 1 (W.C.C.A.1999). 

 

Here, the employee lived in Pipestone - a small town not dissimilar in size to Madras, Oregon - for only six months prior to the injury.  She was a single mother with a small child to care for and support.  Following the injury, the employee had no income, could not pay the rent and was evicted from her apartment in November.  She moved to Madras, where she resided with her parents, who were also available to provide daycare for the child.  Soon after arriving in Oregon, the em­ployee obtained part-time, temporary work at Jericho Adult Foster Care through a friend.  Under these circumstances, we cannot conclude that the employee=s move to Madras constituted a with­drawal from the labor market.

 

c.  Job Search.  Finally, the self-insured employer maintains the employee failed to es­tablish temporary total disability, first by finding employment, albeit short-lived, and then by failing to conduct a diligent search for employment.  

 

The employer first contends the employee demonstrated an ability to work by obtaining employment at Jericho Adult Foster Care.  The ap­pellant argues the employee is, therefore, not eligible for subsequent periods of temporary total disability.  ATotal disability,@ however, is not based solely on total in­ability to perform work, but is also based on an inability to find work within the employee=s re­strictions.  Unavailability is shown by a diligent job search to no avail.  Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 732-33, 40 W.C.D. 948, 953-54 (Minn.1988).

 

The employee testified she worked eight to twelve hours per week at Jericho, doing light kitchen duty - preparing salads and meals to freeze and then bake - for five adults.  She worked three to four weeks before the job ended.  There was no evidence that the job was available to the em­ployee after the end of December 2001.  Therefore, the sole issue is whether the employee conducted a reasonably diligent job search thereafter.  A diligent job search Ais a search that is reasonable under all the facts and circumstances.@  Id. at 734, 40 W.C.D. at 956.

 

The employee testified she was released to light-duty work in December, with restrictions of no lifting over 10 pounds and no overhead lifting.  Because of her financial situation, she was un­able to complete the prescribed physical therapy.  In May 2002, Dr. Wikenheiser concluded the em­ployee had not reached maximum medical improvement, and recommended a two or three month rehabili­tation program to improve strength and range of motion in the left shoulder.  Until therapy was completed, Dr. Wikenheiser believed the employee could perform light-duty work with re­strictions of no lifting over 35 pounds and no lifting above shoulder level.  At no time prior to the hearing was the em­ployee released to return to work as a nursing assistant.

 

The employee was provided no rehabilitation assistance by the employer.  No written re­strictions were obtained from treating physicians, nor was a physical capacities assessment made.  The employee testified that after the Jericho employment ended, she enrolled in a job program at the Work­force Center through the Oregon Department of Human Services.  The program included classes on resume writing, interviewing and computer skills, among others, to enhance employ­ability.  The employee stated she looked at want ads and met regularly with a group that shared job contacts.  The employee submitted COIC Jobs Attendance sheets for March 2002, listing multiple job contacts and related activities for that month.^[3]  The compensation judge concluded the employee had established en­titlement to temporary total disability.  While evidence of an ongoing job search is somewhat mini­mal, we cannot conclude, on these particular facts, that the award of temporary total disability was so manifestly contrary to or unsupported by the evidence as to require reversal.  We must, therefore, affirm. 

 

5.  Penalties

 

The employer and insurer maintain the compensation judge=s award of penalties, pursuant to Minn. Stat. ' 176.225, subd. 1, is not supported by substantial evidence.  The statute provides for an additional award of up to 30 percent of the total compensation awarded where the employer or insurer have interposed a frivolous defense or frivolously denied a claim.  AFrivolously@ means with­out a good faith investigation of the facts or on a basis that is clearly contrary to fact or law.  A denial of liability was served on October 23, 2001, within a matter of days of the employee=s written report of the injury.  The employer=s assertion that the employee failed to give timely notice of the injury was patently contrary to the facts and law.   The employer further asserted there was no evidence of a causal relationship between the work and the employee=s injury.  The compensation judge con­cluded that the medical evidence available at that point, all of which was consistent with the em­ployee=s report of a work injury, combined with the fact that the employee had an MRI scan, was seen by an orthopedic surgeon in Sioux Falls, and had undergone surgery during that time period, evidenced a failure to make a good faith investigation of the facts prior to denying the claim. The employer eventually obtained an independent medical examination report in May 2002 from Dr. Wikenheiser.  Dr. Wikenheiser concluded the employee=s injury was causally related.  There was no report to the contrary until Dr. Wikenheiser=s somewhat equivocal report dated the day before the hearing.  At the hearing, although there were apparently witnesses to the incident, the employer presented no evidence contradicting the employee=s history of  when and how the injury occurred.  Thus, we find no evidence supporting the facts contained in the employer=s AClarification@ upon which Dr. Wikenheiser=s supplementary report was based. As this court has noted on numerous occasions, the imposition and extent of penalties is generally within the sound discretion of the compensation judge.  See, e.g., Crimmins v. NACM North Central Corp., 45 W.C.D. 435 (W.C.C.A. 1991); Erickson v. Texaco Refining, 45 W.C.D. 181 (W.C.C.A. 1991).  Given the facts and circumstances, we cannot say the compensation judge abused his dis­cretion in this case.  We affirm.