CHRISTOPHER S. MCBRIDE, Employee/Appellant, v. MINNESOTA LTD., INC., and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer. 

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 9, 2004

 

No. WC04-160

 

HEADNOTES

 

NOTICE OF DISCONTINUANCE - TEMPORARY TOTAL DISABILITY.  Substantial evidence supported the discontinuance of temporary total disability compensation where the employee was released to work with restrictions and was videotaped performing work activities for a local auto repair business.

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY; WAGES - IMPUTED WAGE.  In order to qualify for temporary partial disability compensation, there must be reasonably definite evidence that the injured worker  sustained an actual loss in earning capacity.  Where the employee did not conduct a job search and performed work activities for a friend=s local auto repair business at no pay or other compensation, the compensation judge did not commit clear error in failing to award temporary partial disability compensation based on an imputed wage.

 

Affirmed.         

 

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

Compensation Judge: Patricia J. Milun

 

Attorneys:  Thomas R. Longfellow, St. Paul, MN, for the Appellant.  Thomas A. Atkinson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the denial of temporary total and temporary partial disability compensation for the period from October 23, 2004, through the date of hearing.  We affirm.

 

BACKGROUND

 

The employee, Christopher S. McBride, began working for the employer, Minnesota Limited, in 1998 as a laborer.  The employer=s business consisted of pipeline construction and repair, and the employee=s work activities included digging, carrying pipe, and sandblasting and painting pipe.  On September 3, 2003, the employee was working for the employer on a pipeline near Superior, Wisconsin, and was injured when he fell into the bed of a truck while lifting an 80-pound bag of sandblasting sand.  The employee experienced sharp pain in his low back and down his left leg.

 

The employee consulted with a chiropractor, Dr. Scott McBride[1], on September 4, 2003, and was taken off work.  An MRI scan of the employee=s lumbar spine at St. Lukes CDI on September 22, 2003, showed a small central and left paramedian disc protrusion at L5-S1 in contact with, but not compressing, the left S1 nerve root.  The employee=s chiropractor released him to work effective October 1, 2003, with restrictions of no repetitive bending, twisting or lifting, no lifting over 20 pounds, and no prolonged sitting or standing. 

 

The employee attempted to return to work with the employer but the employer had no work available for him within his restrictions.  The employee testified that he did not seek other work within his restrictions until January 22, 2004, when he began a job search with the assistance of a qualified rehabilitation consultant.

 

Based on information that the employee had been seen working at Nashwauk Auto Repair, the employer and insurer hired a surveillance firm which videotaped the employee=s activities on October 22 and 23, 2003.  In the videotape, the employee is shown arriving at Nashwauk Auto Repair both days about 8:30 a.m. when the business opened and driving a truck owned by the repair shop=s owner.  Most of the time, the employee is inside the building and cannot be seen.  However, he is seen outside several times, changing spark plugs in a car and crawling and working under a car and a truck.  On one of the two days, he is shown closing and locking the shop at the end of the business day.  He also is shown driving a tow truck owned by Nashwauk Auto Repair to an evening service call. 

 

On November 6, 2003, the employer and insurer filed a Notice of Intent to Discontinue Benefits asserting that the employee=s entitlement to temporary total benefits ceased on October 29, 2003, when he allegedly returned to work for Nashwauk Auto Repair.  After an administrative conference, discontinuance was granted by a compensation judge on December 3, 2003.  The employee filed an Objection to Discontinuance and a hearing was held before Compensation Judge Patricia Miluu on February 17, 2004. 

 

At the hearing , the employee and the owner of Nashwauk Auto Repair testified that the employee was not an employee of Nashwauk Auto Repair and that he received no pay for any activities there, but instead had for many years been in the habit of going there to socialize with the owner of the shop, its employees, and members of the general public who congregated there to discuss politics, gossip, and drink coffee.  The employee characterized the work he was videotaped performing on customer vehicles as Aputzing around@ and stated that he did so only to keep busy and active and to help out his friend.  Nashwauk Auto Repair=s owner testified to the hourly rate of compensation paid to employees and to independent contractors working at this shop.  He further testified, however, that the employee=s efforts helping with car repairs or other activities of the business were not sufficiently numerous or skillful to have much financial value, and certainly were not of a value which would warrant pay similar to that earned by the shop=s employees or independent contractors.

 

In her Findings and Order, served and filed March 12, 2004, the compensation judge found that the employee was not temporarily totally disabled after October 23, 2003 as he had shown a capacity to perform work activities and had performed work activities while at Nashwauk Auto Repair.  The judge further found that the employee had failed to perform a reasonably diligent job search between October 2, 2003 and January 22, 2004.  Finally, the judge found that the evidence was insufficient to determine the reasonable value of the services the employee performed for Nashwauk Auto Repair.  Accordingly, the judge denied both temporary total and temporary partial disability compensation for the relevant periods.  The employee appeals.

 

DECISION

 

1. Temporary Total Disability Compensation.

 

The compensation judge affirmed the discontinuance of temporary total disability compensation principally on the basis of the surveillance videotape which showed the employee performing various activities at Nashwauk Auto Repair on October 22 and 23, 2003.  The employee contends on appeal that the judge=s decision was not supported by substantial evidence. 

 

The employee points specifically to his own testimony and that of Gunder Nelson, owner of Nashwauk Auto Repair.  Both the employee and Mr. Nelson testified that the work the employee did for Nashwauk Auto Repair was unpaid and voluntary and that it was secondary to the employee=s primary intention of Ahanging out@ at Nashwauk Auto Repair to socialize and drink coffee.  The employee and Mr. Nelson also offered explanations for the employee=s use of Mr. Nelson=s truck, for his possession on at least one occasion of the keys to the repair shop, and for various other details shown on the videotape.  The employee further points out that the tape does not reveal what he did inside the repair shop, where he spent most of each day, nor show the extent to which he may have been away from the shop for medical appointments.  The employee contends that, in the light of this testimony, the evidence in the case, taken as a whole, was insufficient to support the finding that he was performing work at Nashwauk Auto Repair.

 

We disagree.  While the evidence of the videotape was explained or disputed by the testimony of the employee and Mr. Nelson, it was for the compensation judge to determine the relative weight of the evidence.  The judge gave significantly less weight to the testimony of the employee and Mr. Nelson than she did to the surveillance tape, the employee=s activities depicted on the tape, and the inferences which might reasonably be drawn from those activities.  This was a matter of witness credibility and a determination of credibility is entrusted to the compensation judge.  This court will not reverse determinations made primarily on that basis, unless clearly erroneous.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989);  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

Citing Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967), the employee points out that a person is, in any event, deemed to be temporarily totally disabled "if his physical condition, in combination with his age, training, and experience, and the type of work available in the community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income." He contends that even if the judge could reasonably find that he was performing some work activities at Nashwauk Auto Repair, those activities and their value were so limited as to constitute "sporadic and insubstantial" employment which should not disqualify the employee from receipt of temporary total disability compensation.

 

We note, however, that  "[t]he injured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail."  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). Here, the compensation judge found that the employee had failed to conduct a reasonably diligent job search for the periods in question.  Thus, even if  the judge had concluded that the work at Nashwauk Auto Repair was "sporadic and insubstantial," she could reasonably conclude that the employee had failed to show that this work was all he was able to secure.

 

2. Temporary Partial Disability Compensation.

 

The employee next argues, in the alternative, that the compensation judge, having found that the employee was performing work activities for Nashwauk Auto Repair, erred in failing to award temporary partial disability compensation based on an imputed wage for this work. We do not find this argument persuasive. 

 

In order to be entitled to temporary partial disability benefits, the employee must establish, among other requirements, that there has been an actual loss in earning capacity, generally with evidence of post-injury earnings and of a diligent job search. Dorn v. A.J. Chromy Construction Co., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976); Thelen v. Thelen Heating & Roofing, 59 W.C.D. 84 (W.C.C.A. 1999); Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987). The burden is on the employee to prove by a fair preponderance of the evidence that he or she is entitled to workers= compensation benefits. Fisher v. Saga Corp., 463 N.W.2d 501, 43 W.C.D. 559 (Minn. 1990).

 

First, the compensation judge found that there was insufficient evidence to impute a value to the employee=s services.  We note that, while there was evidence as to the compensation typically received by employees and independent contractors at Nashwauk Auto Repair, the shop=s owner, Mr. Nelson, specifically denied that the employee=s quality, quantity or rate of work was such as to warrant a similar rate of compensation.  Further, at the hearing, the employee provided no evidence as to the hours he worked at Nashwauk Auto Repair, information which would be necessary to establish an imputed wage. Indeed, the employee=s testimony at the hearing was that he spent no time working at Nashwauk Auto Repair and was just Aputzing around.@  Where there was no evidence on which to determine an imputed wage, we cannot say that the compensation judge erred in failing to do so. 

 

In addition, the compensation judge found that the employee failed to conduct a job search or to otherwise demonstrate that an imputed wage for services performed at Nashwauk Auto Repair would have been a fair representation of his post injury earning capacity. While the employee appealed this finding, his brief does not identify any evidence which would dispute this determination.

 

 


[1] The employee is not related to the chiropractor.