RHONDA S. KUNFERMAN, Employee, v. FORD MOTOR CO., SELF-INSURED, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 16, 2004

 

File No. WC04-158

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.  Where the employee returned to work on a full-time basis, during two time periods post-retraining, substantial evidence supports the compensation judge=s finding that the employee=s loss of earnings during those two periods were presumed to accurately represent her retained earning capacity and therefore served as a basis for  calculation of temporary partial disability benefits.

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.  Where the employee returned to work on a part-time basis during a two-year period of time post-retraining, and where the employee was released to work on a full-time basis and conducted no search for additional work to supplement her part-time hours, the compensation judge=s finding that the employee was entitled to the presumption that her actual earnings represented her earning capacity was not supported by substantial evidence and was clearly erroneous, and we therefore reverse the award of temporary partial disability benefits for that period of time.

 

Affirmed in part and reversed in part.

 

Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.

Compensation Judge: Danny P. Kelly

 

Attorneys:  Curtis H. Foster, Minneapolis, MN, for the Respondent.  D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson &  Hager, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s determination that the employee is entitled to temporary partial disability benefits for periods of time between 2001 and 2003.  We affirm in part and reverse in part.

 

BACKGROUND

 

The issue to be addressed by this court on appeal is whether the compensation judge erred in finding that Rhonda Kunferman, the employee, is entitled to temporary partial disability benefits for various periods of time between February 2001 and November 2003.  The employee=s claim relates to two injuries she sustained while working as an assembler at the truck plant operated by Ford Motor Company, the self-insured employer, in 1988 and 1991.  On June 30, 1988, at age 26, the employee sustained an admitted injury to her cervical spine when a ceiling fan fell onto her head, producing pain and stiffness in her neck and upper back.  On or about February 19, 1991, the employee began to notice numbness in both arms, from the elbows to the finger tips, which she attributed to her work activities and for which she initially sought treatment at the employer=s medical department.  Subsequently, she was treated by Dr. John Floberg, a neurologist at the Noran Neurological Clinic, who diagnosed repetitive use syndrome.

 

At the time of her injuries, the employer was self-insured for workers= compensation liability; the employee earned a weekly wage of $628.89 at the time of her injuries.  After her 1991 injury, the employee returned to work for Ford in various capacities but complained of ongoing arm symptoms, as well as shoulder and neck problems, resulting from the repetitive use of her hands necessitated by her work.  Because the employee eventually was unable to satisfactorily perform her light-duty jobs at the employer=s plant, her employment was terminated in April 1992.  Thereafter, she worked at a clothing store and card shop before commencing her work as a teller at the First National Bank of Farmington in February 1993. 

 

The parties have litigated various issues since 1991, including the issue of whether the employee=s 1991 injury was work-related, and whether the employee was entitled to disability benefits, medical expenses and retraining benefits as a result of her injuries.  Although the employer originally denied primary liability for the 1991 injury, in his findings and order served and filed April 24, 1992, a compensation judge found that the employee sustained a Gillette injury^[1] to her right forearms and hands while working for the employer on February 19, 1991, and that she was entitled to a rehabilitation consultation.  That decision was affirmed by this court.  Kunferman v. Ford Motor Co., slip op. (W.C.C.A. Aug. 12, 1992).  Subsequent claims for temporary total and temporary partial disability benefits, together with medical expenses associated with claimed repetitive use syndrome of both arms, shoulder symptoms, and chronic neck pain, were awarded by another  compensation judge in findings and order served and filed March 23, 1994.  The judge concluded that the employee also injured her cervical spine and shoulders in 1991 due to her repetitive jobs; those findings were affirmed by this court.  Kunferman v. Ford Motor Co., slip op. (W.C.C.A. Sept. 13, 1994).

 

In 1995, the employee filed a claim petition alleging entitlement to temporary partial disability from January 1, 1994, to the present and continuing, as well as entitlement to payment of medical expenses.  She later filed a rehabilitation request, requesting rehabilitation services and retraining.  Both claims were consolidated for hearing.  A few days before the scheduled hearing at the Office of Administrative Hearings, the parties settled the employee=s claim to-date for temporary partial disability benefits and medical expenses.  (Award on Stipulation filed May 23, 1995.)  On October 24, 1995, a hearing was held to address the employee=s rehabilitation request and request for retraining.

 

In a findings and order issued on November 29, 1995, another  compensation judge approved the retraining program requested by the employee at the University of Wisconsin/Eau Claire in the area of microbiology and biochemistry.  In a memorandum, the compensation judge stated that the Abriefs of the parties and the evidence presented also attempt to make a case for retraining as a computer programmer.  The compensation judge refuses to address this, as it was not specifically raised as an issue at the October 24, 1995, hearing.@  The employer appealed from that order, arguing that the compensation judge failed to consider the question of whether an alternative retraining plan in computer programming, as proposed by the employer, was a better program than the plan proposed by the employee, and also arguing that substantial evidence did not support the judge=s conclusion that retraining in the area of microbiology and biochemistry was appropriate for the employee.  In a decision issued on October 1, 1996, this court concluded that the compensation judge=s refusal to consider the self-insured employer=s alternative retraining plan was improper, as the compensation judge was required to analyze and review all of the factual issues raised, and remanded the matter to the compensation judge for further consideration.  Kunferman v. Ford Motor Co., slip op. (W.C.C.A. Oct. 1, 1996).

 

On remand, the matter was reassigned to another compensation judge.  In unappealed findings and order dated May 27, 1997, the judge awarded the employee=s claim for retraining in the field of biochemistry and microbiology at the University of Wisconsin-Eau Claire.  Because the employee had already completed some college courses, the judge found that the employee would be able to complete her degree in 156 weeks, the maximum period of time allowed by statute for retraining benefits.^[2]  The employer paid the employee=s college costs of approximately $16,000.00, along with weekly retraining benefits between September 2, 1997, through September 2, 2000, totaling approximately $85,000.00.

 

While enrolled in her retraining course, the employee filed a claim petition for payment of a minimum of 26 weeks of economic recovery compensation benefits (ERC).  The compensation judge denied this claim, and instead awarded payment of permanent partial disability benefits^[3] upon the employee=s completion of her retraining course and the cessation of temporary total disability benefits.  The judge ordered that the benefits be paid Aas impairment compensation unless all agreed that it should be paid as economic recovery compensation.@  No appeal was taken from that findings and order.

 

The employee did not complete the retraining program that was awarded to her, but discontinued the program in October 2000 shortly after her weekly retraining benefits expired, despite the fact that she was within a semester of completing her degree in biochemistry and/or microbiology.  In November 2000, the employee worked in the pharmacy stockroom of a local hospital for approximately two weeks; she testified that she quit this job because the physical tasks caused her to develop symptoms in her arms and neck.  The employee later worked as a bank teller, the same or similar type of job she held in 1995 when she originally made a claim for retraining benefits.  She held that job from the week ending February 15 through April 15, 2001.  The employee then sought employment in the Minneapolis-St. Paul, Minnesota, area, in part so that she could attend college classes at the University of Minnesota to complete her degree.  In September 2001, the employee began working in a stock room position for the chemistry department at the University of Minnesota, approximately 20-25 hours per week, at a starting wage of $7.00 per hour which was later increased to $10.00 per hour.   The employee continued working on a part-time basis through September 2003, when she was offered a full-time position with that same department, as a principal lab technician, earning $13.25 per hour.

 

On January 17, 2003, the employee filed a claim petition, seeking entitlement to payment of economic recovery compensation, temporary total disability benefits in 2001 and 2002, and temporary partial disability benefits for periods of time between 2001 and 2003.   On November 25, 2003, a hearing was held before a compensation judge, and the record remained open until January 13, 2004, to allow for additional evidence and written closing arguments.

 

The parties submitted reports from two vocational experts into evidence at the hearing. The employee submitted a report prepared by Dr. Frank Lamp, the employee=s previous QRC, dated July 27, 1995; that report also had been submitted at a previous hearing in support of the employee=s retraining claim.  Dr. Lamp recommended that the employee pursue a college degree in biochemistry and molecular biology.  Dr. Lamp=s associate conducted a labor market survey in July 1995, and concluded that Ain consideration of all relevant vocational factors including:  past work history, projected wage loss, past educational history, job outlook and physical suitability, the labor market survey supports Ms. Kunferman=s request to be retrained as a biochemist/molecular biologist at a college that offers course work that will lead to a four year degree.@^[4]  Dr. Lamp concluded that it would be possible for the employee to complete the required course work within the 156-week retraining program, and that with the completion of that degree and five years of experience, the employee could reach an income level approximately the same as her pre-injury wages earned with Ford Motor Company.

 

The employer submitted a report from Jan Lowe, M.S, who conducted a labor market survey in November 2003, to research information about job opportunities in both the Minneapolis-St. Paul, Minnesota, area and Eau Claire, Wisconsin, area, for applicants with and without four-year degrees.  In her reports of November 20 and December 16, 2003, Ms. Lowe concluded that the employee had not made reasonable attempts to locate employment related to her field of study.  She also concluded, based on the labor market survey, that there were employment opportunities available to the employee in the area of biochemistry/microbiology, even without a completed degree, which would have paid significantly more than what she earned at the University of Minnesota in a part-time position.  She provided examples of laboratory technician jobs available at the University of Minnesota and in the general labor market, some of which required a four-year degree and some which were available without a degree.  The full-time wages for those jobs ranged from $11 per hour to $24.60 per hour.  Ms. Lowe also concluded that it would benefit the employee to pursue laboratory technician employment available to individuals without a four-year degree if she intends to complete a degree and pursue a career in the field of microbiology.

 

The employee submitted very limited job search records into evidence.  Those records include six letters from prospective employers (four dated October and November 2000, one dated July 2001 and one undated), advising that no position was available for the employee.  In addition, the employee submitted a list of the names of sixteen banks or financial organizations in the Eau Claire, Wisconsin, and surrounding area, but there is no information on that list as to whether or when she applied to each of those employers.  The employee also submitted a list of approximately 40 prospective employers, with sparse notes next to some of the employers= names concerning job availability.  That list includes no explanatory information such as what type of job the employee may have sought or on what dates she might have applied.  (Pet. Ex. F.)

 

In his findings and order served and filed on February 24, 2004, the compensation judge denied the employee=s claims for economic recovery compensation.  He also denied the employee=s claims for temporary total disability benefits in 2000 and 2001, concluding that the employee failed to conduct a diligent search for employment after September 2000.  The employee did not appeal from the denials of economic recovery compensation and temporary total disability benefits.

 

The compensation judge awarded the employee=s claims for temporary partial disability benefits between 2001 and 2003, based on his conclusion that the employee=s reduced earnings were presumed to represent her earning capacity.  He cited these factors in support of that conclusion:

 

It is assumed that the employee=s actual earnings are representative of her earning capacity.  Said assumption was not adequately rebutted by the self-insured employer.  The employee does not have a degree in biochemistry/microbiology.  The employee has a GED, more than four years of college courses and a varied employment background.  The employment [at the bank in 2001 and at the University of Minnesota between 2001-2003] was within her physical restrictions.  A diligent search for employment was not required to establish entitlement to temporary partial disability benefits.  (Findings Nos.16 and 18.)

 

The self-insured employer appeals from the award of 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 (2004).  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).

 

In addition, Aa decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

Temporary Partial Disability Claim

 

The self-insured employer appeals from the award of temporary partial disability benefits, arguing that the employee=s wage loss after September 2000 was not causally related to her work injuries but instead resulted from her failure to complete the retraining program.  The employer also argues that (1) the employee prematurely discontinued her retraining program, (2) that she failed to diligently explore other employment options, such as those earlier identified by Jan Lowe, vocational consultant, and Frank Lamp, QRC, that would have paid her close to or in excess of her pre-injury wage, and (3) that the employee has not shown she was entitled to temporary partial disability benefits during the claimed periods as she was not entitled to the presumption that her actual earnings during those periods were representative of her earning capacity.

 

The employee argues that she established a presumptive earning capacity by finding employment at a wage loss for certain periods of time from and after February 2001, and therefore is entitled to temporary partial disability benefits during those periods of time.  Minn. Stat. ' 176.101, subd. 2, requires that temporary partial disability benefits be paid based on the difference between the weekly wage of the employee at the time of the injury and the wage the employee is able to earn in the employee=s partially disabled condition.  To demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability.  See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 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).  The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988).  However, when a disabled employee who is released to return to full-time work finds a full-time job, the earnings from such employment create a presumption of earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989).  In appropriate circumstances, this presumption can be rebutted with evidence indicating that the employee's ability to earn is different than the post-injury wage.  Patterson v. Denny's Restaurant, 42 W.C.D. 868, 874 (W.C.C.A. 1989).   In order to establish an earning capacity different from actual earnings, there must, however, be more presented than evidence of a hypothetical job paying a theoretical wage.  Saad v. A.J. Spanjers Co., 42 W.C.D. 1184, 1194 (W.C.C.A. 1990).

 

In this case, the employee was awarded retraining benefits and was enrolled in college for three years, between 1997 and 2000.  She withdrew prematurely from her retraining program in October 2000 after her 156 weeks of retraining benefits expired.  Since then, the employee has worked part-time and full-time during various periods of time, working at a wage loss.  The employer argues that the employee=s failure to complete the retraining program precludes her from receiving temporary partial disability benefits while working at a wage loss.  We find no authority for the proposition that failure to complete retraining automatically precludes entitlement to temporary partial disability benefits.  Instead, the ultimate issue in this case is whether the employee established a loss of earning capacity causally related to her work-related disability.

 

February - April 2001

 

 The employee discontinued her college enrollment in October 2000.  Approximately four months later, she returned to work for two months as a bank teller, which the employee testified was a full-time position.  The compensation judge concluded that the employee=s earnings as a bank teller were conclusively presumed to represent the employee=s earning capacity.  He cited to the employee=s educational background and that this job was within her restrictions, although the record contains no reference to any current restrictions imposed on the employee.  The compensation judge found the employee failed to conduct a reasonably diligent job search after September 2000, but also concluded that a diligent job search was not required to establish entitlement to TPD benefits.

 

In this case, the employee returned to work for two months in 2001 as a bank teller, working on a full-time basis.  There is no evidence in the record as to any other actual jobs available to the employee at that time.  In view of this record, it was not unreasonable for the compensation judge to conclude that the presumption, that the employee=s actual earnings from her full-time job as a bank teller represented her actual earning capacity, applied and was not rebutted.  We therefore affirm the award of temporary partial disability benefits for that two-month period.

 

September 2001 - September 2003

 

In September 2001, after five months off work, the employee began working at the University of Minnesota on a part-time basis; she had been offered this position in July 2001,  and was scheduled to begin work in September.  The employee worked in a chemistry stockroom position for two years until September 2003, averaging 20-25 hours per week, at an  hourly wage ranging from $7.00 to $10.00.  In September 2003, approximately two months before the evidentiary hearing, the employee was offered full-time work as a laboratory technician at the University of Minnesota.  At the time of the hearing, the employee continued working at that full-time employment, earning $13.25 per hour.

 

The employee acknowledged, through her testimony, that throughout the entire two years when she worked part-time for the University of Minnesota, she did not seek alternative full-time employment or additional employment, such as an additional part-time position, which would provide a wage closer to her pre-injury wage.  The only supplemental work the employee obtained during those two years, beyond her part-time hours, was occasional overtime lab and cleaning work. Even though she was aware, shortly after she was hired in September 2001, that there was a hiring freeze at the University due to its budget constraints, the employee hoped that her position eventually would become full time.  The employee testified that she planned to complete her degree at the University of Minnesota, and that her job on the University campus facilitated her continued course work.  As of the date of the hearing in November 2003, the employee had completed four courses at the University of Minnesota, which she attended between the fall semester 2001 and spring semester 2003.

 

While the employee has been rated as having a seven percent permanent partial disability relative to her cervical spine condition, she testified that she has not treated for any work-related condition or injury since long before 1997, when she began her retraining program, and that the only medical care she received during the last seven or more years was one physical examination  unrelated to her work injuries.  The record contains no reference to current physical work restrictions and no medical records were submitted into evidence at the hearing.  Nonetheless, it is undisputed  that the employee continues to have physical work restrictions resulting from her work injuries.  It is evident from the record, however, including from the employee=s testimony, that at no time since her earlier release to return to full-time work has there been any restriction on the number of hours the employee can work.

 

Vocational evidence indicates that with her educational background, the employee could have located employment in the field of biochemistry and/or molecular biology during this period of time, which would have paid significantly more than her part-time earnings, even without a completed degree.  The employee testified that during this two-year period she made no effort to look for full-time work but hoped that she eventually would be hired for a full-time position at the University.  In this case, the presumption that the employee=s earnings between September 2001 and September 2003 represent her earning capacity does not apply, since the employee, who worked full-time when injured and eventually  was released to full-time work, only worked on a part-time basis and made no effort to seek additional work hours.

 

Where a disabled employee is released to full-time work but obtains only part-time work, the employee may be eligible for temporary partial disability benefits if the employee can demonstrate that part-time work was the only work available as a result of the disability.  See, e.g., Denardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 631-32 (Minn. 1990) (supreme court held that where a part-time position was all that the employee was able to obtain because of her disability, that part-time wage was the most reliable evidence of the employee=s earning capacity).  In other cases, working less than full-time may or may not be reasonable under the particular facts of the case.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  We find nothing in this record to demonstrate that the employee=s part-time work was the only work available to her as a result of her injury, and we find nothing in this record to support a conclusion that the employee=s wage loss between September 2001 and September 2003 was causally related to her 1988 and 1991 work injuries.  We therefore reverse the award of temporary partial disability benefits for that period of time.

 

September 2003 to the Hearing Date

 

Since September 2003, the employee has worked as a principal lab technician.  The employee testified that her current position involves stockroom duties, preparation of labs in the chemistry department by setting up equipment and chemical supplies, and tear-down of the labs.  A 2003 labor market survey refers to the employee=s current job as being a union position with a salary ranging between $13.25 and $21.69 per hour.  Now that she is employed full-time by the University of Minnesota, she is provided tuition reimbursement for her course work.  The employee testified that her current employment has good prospects for future advancement.  She also testified that she would not have been offered this position absent her course work at the University of Wisconsin, as she believes that everyone hired in the same  position has a degree.  She also testified that the salary for her current position is the same as that which would be paid to an employee with a four-year degree.

 

The employer argues that the employee=s earnings for the University of Minnesota since September 2003 do not accurately reflect the employee=s earning capacity, arguing that the employee failed to diligently explore other full-time employment options. Although the compensation judge stated that he did not consider the employee=s job search when reaching his conclusions, an employee generally does not lose eligibility for temporary partial disability benefits by failing to search for higher-paying work when she is already employed on a full-time basis.  Peters v. Egan & Sons, 54 W.C.D. 262 (W.C.C.A. 1996); see also Tossey v. City of St. Paul, 60 W.C.D. 74 (W.C.C.A. 1999).

 

While the presumption of earning capacity is rebuttable, this court has on numerous occasions cautioned that an employer and insurer must present evidence of appropriate, better paying work actually available in the employee=s labor market to rebut the presumption.  See, e.g., Passofaro v. Blount Constr. Co., Inc., 49 W.C.D. 535 (W.C.C.A.1993) (and cases cited therein).  The record here includes evidence that with her educational background the employee could earn wages higher than her full-time wage at the University of Minnesota, but there was also evidence presented that the employee=s current employment and wages are in the range that both vocational experts concluded the employee could earn post-retraining.  The compensation judge could reasonably conclude that, for this time period, the presumption of earning capacity applied and was not rebutted.  We therefore affirm the compensation judge=s award of temporary partial disability benefits during the employee=s full-time employment between September 2003 and the date of hearing.