The employee was injured when a hog on the production line struck his right arm unexpectedly, causing him to stab himself in his left forearm.  The employee was initially taken to the emergency room of the local hospital but when the bleeding in his forearm could not be controlled, he was transferred to the care of the Mayo Clinic in Rochester.  He required surgery on November 7, a fasciotomy and ligation of the ulnar artery. 

The employee was discharged on November 10, 2000, with a diagnosis of compartment syndrome.  He returned to Mayo Clinic on several occasions for treatment of his work injury.  He was diagnosed as having reflex sympathetic dystrophy in January 2001 and adhesive capsulitis of the left shoulder in April 2001.  Treatment consisted primarily of physical therapy.  Various work restrictions were provided during the course of treatment which limited the use of the employee=s left arm.

Since the employee=s restrictions precluded him from returning to his pre-injury job, the employer placed the employee in a variety of light-duty assignments through its return to work program, which allowed job placement independent of the seniority system.  The employee worked full-time but did not work any overtime, a fact which the employer attributed to a general lack of overtime at the plant.  The employee did not receive statutory rehabilitation services but worked for a time with a nurse who was a case manager.  From the reports in evidence, it appears her services were limited to coordinating medical care and in making sure that the employee=s light-duty assignments were within his physical restrictions. 

The employee was evaluated on two occasions by Dr. Thomas Litman on behalf of the employer and insurer.  In his initial report of September 26, 2001, Dr. Litman concluded that the employee=s left upper extremity problems were related to his work injury and that the employee had not yet reached maximum medical improvement.  Dr. Litman allowed the employee to work at the employer on a full-time basis, but recommended restrictions in the use of his left arm.  In his follow-up report of May 20, 2002, Dr. Litman concluded that the employee was now at maximum medical improvement and had permanent partial disabilities of six percent of the body due to the shoulder problem and ten percent of the body due to the left forearm conditions.  The permanent partial disability rated by Dr. Litman was paid to the employee in June 2002 by the employer and insurer.

The employer and insurer initially paid temporary partial disability benefits to the employee after his injury but stopped those payments in March 2001.  The employer and insurer did not file a Notice of Intention to Discontinue Compensation.  The employee filed a claim petition on May 6, 2002, alleging entitlement to temporary partial disability from November 20, 2000 and continuing, along with a claim for penalties under Minn. Stat. ' 176.225 for nonpayment of benefits.

The employee=s claim petition was heard by Compensation Judge Jennifer Patterson on August 6, 2003.  The issues at hearing, relevant for this appeal, were whether the employee was entitled to temporary partial disability compensation from November 20, 2000 to February 21, 2003 and whether the employee was entitled to an award of penalties.  In her Findings and Order, served and filed October 9, 2003, the compensation judge awarded temporary partial disability benefits to the employee and denied the claim for penalties.  The employer and insurer have appealed the award of temporary partial disability benefits.  The employee has appealed the denial of his penalty claim.^[1]

DECISION

Temporary Partial Disability

The employer and insurer have appealed the compensation judge=s award of temporary partial disability benefits.  They argue that a significant part of the employee=s wage on the date of injury was due to the overtime hours he worked and since overtime was not available after the injury, any dimunition in wages is due to this economic factor and not to the employee=s work injury.  We are not persuaded. 

An injured employee is entitled to temporary partial disability benefits if the employee has a physical disability, is able to work subject to that disability, and has an actual loss of earning capacity causally related to the disability.  Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  The parties agree that the employee earned $617.17 on average per week before his injury.  This figure is the measure of his pre-injury earning capacity.  The employee returned to full-time work with the employer after his injury.  His earnings for this full-time work are presumed to be an accurate measure of his post-injury earning capacity.  Roberts v. Motor Cargo Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 214 (1960).  This presumption may be rebutted.  Borchert v. American Spirit Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998).  The burden of rebutting the presumption is on the employer and insurer.  Yacoub v. American National Insurance, 60 W.C.D. 168 (W.C.C.A. 2000).  In order to rebut the presumption, the employer and insurer must present evidence of appropriate, better paying work actually available in the employee=s labor market.  Passofaro v. Blount Constr. Co., 49 W.C.D. 535 (W.C.C.A. 1993).  Whether or not the presumption has been rebutted is a question of fact for the compensation judge.  Ross v. New Mech Cos. Inc., slip op. (W.C.C.A. August 12, 2003).

The presence or absence of overtime at the employer=s plant after the work injury is not determinative in this matter.  As the compensation judge noted, there was little medical evidence on the question of the employee=s ability to work overtime.  The compensation judge concluded that Dr. Litman=s restrictions, which allowed the employee to work full time, could  not be construed to allow the employee to work overtime.  No other medical opinion on the number of hours the employee could work is in evidence.  Given the evidence, we can not conclude that the compensation judge erred in this determination.  The question then is whether any evidence was presented to the compensation judge which would demonstrate actual employment was available to the employee which would have eliminated his ongoing wage loss.  In the absence of such evidence, the compensation judge did not err in awarding temporary partial disability benefits.  The decision of the compensation judge on this issue is affirmed. 

Penalties

The employee alleged that he was entitled to a penalty against the employer and insurer based on the failure to file a Notice of Intention to Discontinue Compensation and on the failure to pay temporary partial disability benefits after March 25, 2001.  Whether a penalty is appropriate under Minn. Stat. ' 176.225 is generally a question of fact for the compensation judge.  Saarela v. Sun Country Airlines, slip op. (W.C.C.A. Sept. 25, 1998).  The compensation judge denied the employee=s penalty claim for nonpayment of benefits after March 25, 2001 because the defense raised by the employer and insurer was not frivolous or asserted solely for the purpose of delay.  Minn. Stat. ' 176.225, subd. 1.  Under the circumstances present here, we find no basis to reverse the compensation judge on this issue.

The question of  penalties for the failure by the employer and insurer to file a Notice of Intention to Discontinue Compensation before ceasing payments to the employee is more troubling.   While the employee=s attorney did not raise the issue in his opening statement, the employer and insurer=s attorney did refer to the issue in his opening statement.  The compensation judge made no finding on this issue.

We remand this matter to the compensation judge for a determination as to whether the employee is entitled to an award of penalties for non-compliance with the provisions of Minn. Stat. ' 176.238 and Minn. R. 5220.2630, the amount of such penalty, if any.