RAY DAVIDSON, Employee/Cross-Appellant, v. THERMO KING, and ACE USA, Employer-Insurer/Appellants, and MN DEP'T OF LABOR & INDUS./VRU, and CENTER FOR DIAGNOSTIC IMAGING, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 2, 2004

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - RETIREMENT.  Where the employee accepted a special incentive retirement arrangement from the employer prior to a workforce reduction, where the employee sought rehabilitation assistance and searched for work after leaving his employment with the employer in order to supplement his income, and where the employee testified that he doubted whether he could physically perform a position that the employer later contended the employee would have been able to perform within his restrictions, substantial evidence supports the compensation judge=s finding that the employee did not voluntarily retire from the entire job market and that he was not precluded from claiming disability benefits. 

 

PERMANENT TOTAL DISABILITY - EFFECTIVE DATE. Where the employee accepted a special incentive retirement arrangement from the employer prior to a workforce reduction, and where the employee sought rehabilitation assistance and searched for work after leaving his employment with the employer, substantial evidence of record supports the compensation judge=s conclusion that the employee remained temporarily totally disabled for approximately 15 months after his employment ended, and became permanently totally disabled thereafter.

 

Affirmed.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys: David K. Furness, Walbran, Furness, & Leuning, Owatonna, MN, for the Cross-Appellant.  Kay Nord Hunt & Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits between June 28, 2001, and December 9, 2002, and from the award of permanent total disability benefits since December 10, 2002.  The employee cross-appeals from the denial of the employee=s claim for temporary partial disability benefits in 1999 and 2001.  We affirm.

 

BACKGROUND

 

Mr. Ray Davidson, the employee, began working for Thermo King, the employer, on January 29, 1969, at age 24, and continued working there as a machine operator through June 28, 2001.  Throughout his employment, he worked as a machinist, operating a variety of industrial machines used in the manufacturing process. 

 

This claim relates to an admitted work injury the employee sustained to his left shoulder on July 27, 1999.  At the time of his injury, the employee was 54 years old, and earned a weekly wage of $723.97.  On that date, as he set up a machine, he pulled on a crescent wrenchto loosen a nut and felt a pop in his left shoulder.  He sought treatment from Dr. Thomas Kiefer at the Airport Clinic, who diagnosed left shoulder rotator cuff impingement and released the employee to work within restrictions.  Following his injury, the employer and its insurer, ACE USA, admitted primary liability for a left shoulder injury.  The employee initially lost no time from work as a result of his injury, and continued to work as a machine operator. 

 

The employee has a history of extensive medical treatment.  He was stricken with polio at age 3, which affected both feet, ankles, his legs up to his knees, and his right arm.  He has undergone 14 or 15 surgeries on his feet and ankles, which left him with limited ability to walk and stand.  The employee also reported to Dr. Kiefer that he had surgery on his left shoulder in the mid-1980's, for Aprobable arthritis.@  In addition, he has undergone a fusion of his right shoulder, and his right arm is of limited use; he uses his right arm as an assist to his left arm, and is unable to reach overhead with his right arm.  The employee=s medical history also includes a fractured femur in the 1970s or 1980s, and a fracture of his left thumb in 1967, which occurred when he caught his thumb in a conveyor belt.

 

The employee underwent a pre-employment physical at the time of his hire by Thermo King in 1969, and was approved by the examining physician for a job that required sitting or standing but no heavy lifting or long distance walking.  Prior to his injury in 1999, the employee was able to physically perform all of his job tasks while employed by the employer.

 

Following his injury in July 1999, the employee continued to treat with Dr. Kiefer through December 1999, and reported ongoing left shoulder and left elbow pain.  Dr. Kiefer prescribed medication and a cortisone injection which provided no lasting relief. The employee claims to have missed some hours of work in August and September due to his shoulder pain, and testified that at various times during this period he left work early due to left shoulder pain,  therefore working less than his 40 hour per week schedule.  In early November, the employee=s left shoulder symptoms were aggravated as a result of his work duties, and Dr. Kiefer restricted him entirely from work between November 4-12, 1999; he was paid temporary total disability benefits during that period of time.

 

In December 1999, Dr. Steven Moen, orthopedist, examined the employee at Dr. Kiefer=s referral.  Dr. Moen provided an additional steroidal injection, and prescribed physical therapy.  Due to the employee=s continued symptoms and work limitations, Dr. Moen referred him for a second orthopedic evaluation.  In May 2000, Dr. Richard Strand examined the employee, provided him with additional steroid injections, and eventually diagnosed a torn rotator cuff, based on the results of an MRI scan.  In August 2000, the insurer asked Kathleen Jordan, qualified rehabilitation consultant (QRC), to conduct a rehabilitation consultation.  Ms. Jordan determined that the employee was qualified for rehabilitation services and proposed that she provide medical management and rehabilitation assistance with the goal of returning the employee to full-duty work for the employer.  Dr. Strand performed surgery on the employee=s left shoulder on September 8, 2000, in the nature of decompression and repair of his rotator cuff.  Following surgery, the employee missed approximately 14 weeks of work, and by November 20, 2000, returned to work with additional limitations on the use of his left upper extremity.  He continued working as a machine operator; his co-workers continued to assist him with heavy tasks.  Rehabilitation services evidently were closed after the employee returned to work.

 

On December 5, 2000, the employer announced that it was eliminating a number of jobs at the Bloomington plant, including numerous positions in the department where the employee worked, in order to transfer work to other plants.  The employee continued to work at the Bloomington plant, and obtained ongoing medical treatment from Dr. Strand.  In March of 2001, the employee reported continued shoulder pain with occasional pain in his left arm and numbness in his left hand.   The employee informed the employer=s site safety specialist that he was having ongoing problems with his left shoulder, but he continued working his regular job.  The employee was off work for 1 2 weeks in mid-March due to his left shoulder condition, and was paid temporary total disability benefits.  On March 28, 2001, Dr. Strand assigned permanent light-duty restrictions, including no lifting over 20 pounds, no outstretched use of the left arm, and no overhead reaching.

 

On April 2, 2001, the employer offered a special retirement incentive arrangement to its employees, an arrangement that was negotiated between the employer and the union and was offered to employees who met certain age and service categories.  The employee qualified for inclusion in this program, which offered a lump sum cash payment, the ability to start receiving retirement benefits at an early age, and certain health insurance benefits.  After the reduction in workforce was announced, the employee discussed this program with representatives of the employer and the union and was provided a great deal of information about the program.  He voluntarily accepted the retirement offer, although he had not received a layoff notice and had not been informed that he was in danger of being laid off in the near future.^[1]  The employee elected to accept the retirement offer and signed the agreement on April 23, 2001.  Accepting the retirement offer resulted in the employee retiring as of July 1, 2001 and forfeiting his seniority rights.  That forfeiture meant that after accepting the retirement, the employee would not be able to obtain other jobs at Thermo King until all laid-off employees had been called back.  According to the employer=s director of human resources for the Minneapolis headquarters site, the employer=s facility is a union shop, and therefore seniority was a paramount factor in all employees= continued employment at the time of the workforce reduction. 

 

The employee=s job was eliminated in the workforce reduction, and thereafter only 3 or 4 machinist positions were retained at the employer=s Bloomington location.  According to testimony by the employer=s director of human resources, she did not believe the employee had sufficient seniority to hold one of the few remaining machinist jobs, although she believed there was a position in the electrical department, as an electrical subassembler, that would have accommodated the employee=s physical capabilities and that he could have held with his seniority.  However, the employer did not offer any jobs to the employee after April 2, 2001, and the employee testified that he believed he could not physically perform work in the electrical department and that he did not know other work might be available with the employer before he left in June 2001.

 

In May and June 2001, after the employer closed down the operation of the employee=s machine, he was assigned to light-duty work, including a job counting machine parts,  before his retirement date.  On June 20, 2001, the employee met with Kathleen Jordan for another rehabilitation consultation, after which she again determined that the employee was qualified for rehabilitation services.  No additional rehabilitation services were provided in 2001, however.  A request made by the employee later that year for a change in QRC was evidently denied.  The employee stopped working for the employer on June 28, 2001, pursuant to the retirement agreement.

 

The employee underwent additional surgery on August 29, 2001.  The employee noted improvement in his symptoms post-surgery.  The employee requested rehabilitation assistance through the Department of Labor and Industry, and on January 11, 2002, the employee met with Mr. Thomas Witty, QRC, who provided rehabilitation services to the employee.  By mid-February 2002, Dr. Strand released the employee to return to light-duty work.  The employee advised the doctor that he wished to work at a forklift job; Dr. Strand approved of that type of work.  The employee continued to treat with Dr. Strand through mid-April 2002, and followed up with his family doctor, Dr. Mark Lebenski, in May and June 2002.  Dr. Lebenski prescribed physical therapy, which, according to the employee, provided no symptom relief.  He also provided the employee with a steroidal injection, and referred him to an orthopedist, Dr. Peter Daly.  Dr. Daly referred the employee for an MRI arthrogram, which showed no recurrent tear.  By September 2002, Dr. Daly diagnosed some progression of the deep surface tendonopothy and mild degenerative changes, and concluded that no further surgery was warranted, in spite of the employee=s persistent pain.  Dr. Daly referred the employee to physical therapy for light strengthening exercises.

 

The employee applied for Social Security Disability Income Benefits, and on August 16, 2002, he was evaluated by Dr. A. Neil Johnson at the request of the Social Security Administration.  Dr. Johnson concluded that the employee had marked weakness in his right hand and arm, found that the employee had a hard time grasping and had severe impairment of dexterity.  Dr. Johnson also noted the employee had difficulty walking and standing for long periods of time, and diagnosed a loss of range of motion, mild atrophy and weakness of the left shoulder girdle, and an inability to use his left shoulder overhead.  By a decision dated September 2, 2002, the Social Security Administration determined that, according to its criteria, the employee had become disabled  on June 24, 2001, and therefore was eligible for benefits as of December 2001.  At the time of hearing, the employee received $1,432.00 per month in Social Security Disability Income.

 

QRC Witty had referred the employee for placement services by July 2002.  The employee received job placement services until September, and those services were suspended evidently after the employee=s social security award.  By November 5, 2002, Dr. Daly concluded that given the employee=s residual polio deficits and the compromise of his left shoulder, it would be difficult for Mr. Davidson to find work.  In a report dated December 10, 2002, Dr. Daly concluded  that the employee was permanently totally disabled now that his left shoulder could not compensate for his other polio-related disabilities.  In his report dated January 6, 2003, QRC Witty concluded that the employee was unable to return to work in suitable gainful employment, and suggested that rehabilitation be closed as the employee would not benefit from continued services.

 

At the request of the employer and insurer, Mr. Craig Galvin, QRC, evaluated the employee on January 14, 2003.  Mr. Galvin noted that while earlier receiving rehabilitation assistance, the employee had three to four interviews but no job offers.  Mr. Galvin concluded that the previous vocational services were Avery appropriate and good quality,@ although he did not recommend resuming placement services.  He concluded that the only possibility for gainful employment for the employee was with the employer, and that the employee was permanently totally disabled, based on his age, education, transferrable skills and physical condition.

 

On September 14, 2001, the employee filed a claim petition, claiming entitlement to temporary partial disability benefits from August 2 through to September 19, 1999, and from February 19 through March 11, 2001.  The employee also claimed entitlement to ongoing temporary total disability benefits from June 28, 2001, and rehabilitation services.  He later amended his claim to include an alternative claim for permanent total disability benefits after December 9, 2002.  A hearing was held before a compensation judge and by Findings and Order, served and filed on April 4, 2003, the compensation judge found that the employee did not voluntarily retire from the labor market on June 28, 2001, and that he sought and cooperated with rehabilitation assistance and actively sought employment thereafter.  The compensation judge awarded the employee temporary total disability benefits between June 28, 2001 and December 9, 2002.  The compensation judge found that the employee was permanently totally disabled as of December 10, 2002.

 

The employer and insurer appeal from the award of temporary total and permanent total disability benefits.  The employee cross-appeals from the denial of his claim for temporary partial disability benefits.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine 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).  Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

The compensation judge found the employee to be temporarily totally disabled between June 28, 2001, and December 9, 2002, and permanently totally disabled since December 10, 2002, as a substantial result of his 1999 work-related injury.  The employer and insurer appeal, arguing that the employee voluntarily retired from the labor market and therefore is not entitled to temporary total or permanent total disability benefits.

 

In this case, there is no dispute that the employee by now is permanently totally disabled, in view of the medical and vocational evidence. The employer and insurer argue, however, that the employee voluntarily retired from Thermo King by accepting the employer=s offer of an early retirement package and that but for his decision to retire, the employee could have remained employed there at a job within his physical work restrictions.  The employer and insurer therefore argue that the employee=s unemployment is not causally related to his work injury, but instead resulted from his voluntary withdrawal or unemployment for reasons unrelated to his disability.  The employer and insurer also argue that if this court affirms the finding that the employee is entitled to permanent total disability benefits, the date of such determination should be June 28, 2001, the date the employee retired, and not December 9, 2002, the date determined by the compensation judge.  The issues raised by the employer and insurer=s appeal therefore are (1) whether the evidence supports the compensation judge=s finding that the employee=s retirement from his work with the employer does not preclude him from asserting a claim for benefits, and (2) whether the evidence supports the compensation judge=s conclusions concerning the dates of entitlement to temporary total and permanent total disability benefits.

 

Permanent Total Disability

 

Permanent and total disability  Ameans that the employee=s physical disability, in com­bination with the employee=s age, education, training and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Minn. Stat. ' 176.101, subd. 5(b).  It is well established that the concept of Atotal disability@ depends primarily upon the employee=s ability to obtain or maintain gainful employment rather than his physical condition.  McClish v. Pan‑O‑Gold Baking Co., 336N.W.2d 538, 36 W.C.D. l33 (Minn. l983).  To recover compensation benefits, the employee must establish the work injury is a substantial contributing cause of the disability.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 42 W.C.D. 91 (Minn. 1989).

 

A[A] voluntary withdrawal or retirement from the labor market, which is not the involuntary result of the compensable disability, may . . . preclude a finding of permanent total disability@.  Behrens v. City of Fairmont, 533 N.W.2d 854, 856, 53 W.C.D. 41, 43 (Minn. 1995) (citations omitted).  See also McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 541, 36 W.C.D. 133, 138 (Minn. 1983) (AOne who has voluntarily retired and withdrawn from the labor market is not eligible for total disability benefits@).  ARetire­ment@ is specifically defined in the workers= compensation act.  Minn. Stat. ' 176.101, subd. 8, provides:

 

ARetirement@ means that a preponderance of the evidence supports a con­clu­sion that the employee has retired.  The subjective statement of an employee that the employee is not retired is not sufficient in itself to rebut objective evi­dence of retirement but may be considered along with other evidence.

For injuries occurring after January 1, 1984, an employee who receives social security old age and survivors insurance retirement benefits is presumed retir­ed from the labor market.  This presumption is rebuttable by a prepon­derance of the evidence. 

 

This court has defined retirement as Ano more than a voluntary withdrawal from the labor market which the employee intends to be permanent.@  Pfeifle v. Peterson-Biddick, 56 W.C.D. 459 (W.C.C.A. 1997); see also Hansford v. Berger Transfer, 46 W.C.D. 303 (W.C.C.A.1991).  The fact that the employee Aretired@ from employment with his date-of-injury employer is not dispositive of the question of whether the employee has permanently retired from the labor market.  Dillemuth v. Owatonna Tool Co., 59 W.C.D. 349, 357 (W.C.C.A. 1999) (citing­ Shaw v. Metz Baking Co./Tastee Div., slip op. (W.C.C.A. Aug. 15, 1994); Brown v. Metropolitan Transit Comm=n, slip op. (W.C.C.A. Sept. 7, 1993, slip op. at 4 n.3); Marsh v. Moore Data Management, slip op. (W.C.C.A. Sept. 1, 1993);  Woelfle v. Bermo, Inc., slip op. (W.C.C.A. Nov. 15, 1989)).  Whether an employee has retired from the labor market is dependent upon the facts of each case.  Id.  Several factors are relevant to this consideration, including the employee=s expressed intent to retire or continue working; application for social security retirement benefits; evidence of a financial need for employment income, including the adequacy of a pension or other retirement income; whether the employee or the employer initiated the discussion of retirement; whether the employee sought rehabilitation assistance; and whether the employee actively sought alternative employment or was working. Id.

 

Here, the employee had worked for Thermo King since 1969 and continued working after his 1999 work injury, within restrictions related to his left shoulder injury.  He evidenced no desire to leave his position with the employer prior to the offer of early retirement.  It was the employer who initiated the special early retirement offer.  The employee testified that he previously planned to work until at least age 65 or until he was eligible to draw full benefits from social security, and that he would have continued to work for Thermo King if there had been a job that he could physically handle.  The employee testified that he knew he could no longer handle his own job at Thermo King due to constant pain in his left arm and shoulder, and that he believed he would be unable to handle whichever job was available with his seniority at Thermo King.  He also argues, however, that he did not intend to retire from the entire labor market.  Prior to leaving Thermo King, the employee sought other employment, including light driving or delivery jobs, car shuttle jobs, and forklift driving.  He intended to work elsewhere, at least part-time, because he knew his retirement annuity Awouldn=t pay enough to keep us going very good.@^[2]  He sought rehabilitation assistance to find other work after his job with the employer ended, and based on a consultation by QRC Jordan on June 20, 2001, the employee was qualified for rehabilitation assistance.  The employee=s post-retirement job search focused on finding light delivery, security and other jobs that could be performed one-handed.  The employee argues that he diligently sought work, and cooperated with the rehabilitation assistance he received through the Vocational Rehabilitation Unit of the Department of Labor and Industry, in order to attempt to supplement his income.

 

The employer discussed with the employee the ramifications of his retirement decision on the availability of work with the employer post-retirement.  We note that there was evidence presented by the employer that the employee most likely could have continued working for the employer in its electrical department had he not accepted the early retirement package.  There is no evidence in the record, however, that describes the nature and specific physical requirements of the electrical department job; the record only contains testimony by an employer representative that an individual with restrictions similar to the employee=s had previously worked in the electrical department and that the employer could have accommodated the employee=s restrictions.  In addition, after the early retirement package was offered to the employee on April 2, 2001, and once he accepted the early retirement package, the employer did not offer the employee a position elsewhere in the plant that could have accommodated his work restrictions.   The employee admittedly did not request of the employer that it search for alternative employment at the plant for him.  However, and according to the employee=s testimony, which the compensation judge specifically credited as being credible, the employee doubted whether he could physically perform the electrical position the employer now suggests would be available.  The employee also testified that he did not know other work might be available with the employer before he left in June 2001; the compensation judge also found this testimony to be credible.  As it is the trier of fact's responsibility to assess the credibility of a witness.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)), a finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).

 

The compensation judge found that the employee did not retire from the entire labor market.  The only objective evidence of retirement offered by the employer and insurer is the employee=s acceptance of the special early retirement package.  This is insufficient to establish retirement from the labor force in view of the specific facts of this case, including the employee=s expressed intent to remain employed at least on a part-time basis to supplement his family=s income and the fact that he sought work for over a year after his retirement from Thermo King.  Substantial evidence supports the compensation judge=s finding that the employee did not voluntarily retire nor did he permanently withdraw from the general labor market, and we affirm.

 

Temporary Total Disability

 

The compensation judge determined that the employee was temporarily totally disabled between June 28, 2001, his last date of employment with Thermo King, until December 10, 2002, when Dr. Daly concluded that the employee was permanently totally disabled.  In their appeal, the employer and insurer alternatively argue that the employee=s permanent total disability status should date from June 28, 2001, not December 10, 2002.

 

In order to be eligible for temporary total disability benefits, an employee must establish a reduction in earning capacity which is causally related to the work injury.  Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 34 (Minn. 1981).  "[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income."  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  Permanent total disability benefits are payable when such disability is likely to exist for an indefinite period of time.  Behrens v. City of Fairmont,  533 N.W.2d 854, 856, 53 W.C.D. 41, 43 (Minn. 1995) (citations omitted).  The employer and insurer argue that in view of the evidence of record, Aif this Court agrees with the Compensation Judge that Employee=s unemployment is causally related to a compensable disability and not due to voluntary withdrawal or retirement from the labor market for nondisability reasons, the Court must also conclude that as of June 28, 2001, Employee was entitled to permanent total benefits.@ 

 

Before his employment with the employer ended, the employee sought work he could perform after his retirement.  He also sought rehabilitation assistance, and, shortly before his retirement date of June 28, 2001, his QRC determined that he was eligible for additional rehabilitation assistance.  Between June 2001 and December 2002, the employee sought employment, received ongoing medical treatment, including surgery on August 29, 2001, and ultimately was released by his physician to return to work within restrictions.  Thereafter, the employee actively treated with Dr. Strand, and later sought other medical opinions on additional treatment he could attempt in order to alleviate his ongoing symptoms.

 

The employee apparently obtained three or four job interviews during this time but received no job offers.  The fact that the employee could have worked for the employer had he not retired was a factor for the compensation judge to consider.  The compensation judge considered all of the evidence and found that the employee cooperated with rehabilitation and diligently sought work from June 28, 2001, through December 9, 2002.  It is not the role of this court to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).

 

The compensation judge based her conclusions on both medical and vocational factors, and stated in her memorandum that

 

Dr. Daly concluded the employee was not a surgical candidate and stated on November 5, 2002, that it would be difficult for Mr. Davidson to find employment.  On December 10, 2002, Dr. Daly opined that the employee was permanently totally disabled.  Mr. Witty found that Mr. Davidson was unable to return to substantial gainful employment when it appeared that there were no further surgical options available to the Employee to improve his left shoulder function.  The preponderance of the evidence leads me to conclude that the employee became permanently totally disabled as of December 10, 2002.

 

Substantial evidence supports the compensation judge=s finding that the employee was temporarily totally disabled between June 28, 2001, and December 9, 2002, and we affirm.

 

Temporary Partial Disability Claim

 

The employee cross-appealed the compensation judge=s denial of his claim for temporary partial disability benefits.  An employee is entitled to temporary partial disability benefits Awhile the employee is employed, earning less than the employee=s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee=s partially disabled condition is due to the injury.@  Minn. Stat. ' 176.101, subd. 2(b).  In order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  See also Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).

 

Between August 2 and September 19, 1999, the employee allegedly missed some hours of work due to his shoulder pain.  He claims that at various times during this period he left work early due to left shoulder pain, and therefore worked less than his 40 hour per week schedule.  Again, between February 19 and March 11, 2001, the employee allegedly missed some work because of his left shoulder problems.  Although the employee testified that his shoulder pain increased while working during these time periods, and although he believed he took vacation time for some of the missed work hours, the employee=s wage records do not show that the employee received vacation pay for any missed work hours during the time periods in question.  The employee testified that he thought he took vacation time because his arm was sore but that he did not want to go through his doctor to be taken off work.  The employee contends that he was not paid for some of these vacation days and that he had reduced earnings during those weeks.  The employee was apparently treated for his injury during the weeks that he had reduced earnings, but did not obtain any doctor=s notes to document his absences nor submit any documentation to the employer and insurer.

 

The compensation judge denied the employee=s claim for temporary partial disability benefits, finding that the employee had not shown that his reduction in earnings from August 2 through September 19, 1999, and from February 19 through March 11, 2001, was due to his work injury.  Substantial evidence supports this finding, and we affirm.