CAROL A. SCHJENKEN, Employee, v. BERMO, INC., SELF-INSURED, adm=d by BERKELEY RISK ADM=RS CO., Employer-Insurer/Appellants/Petitioners.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 13, 2004

 

HEADNOTES

 

REHABILITATION - ELIGIBILITY.  Minn. R. 5220.0100, subp. 22, requires the employee be precluded from engaging in either the job the employee held at the time of the injury or the employee=s usual and customary occupation to be eligible for rehabilitation assistance.  Substantial evidence supports the compensation judge=s conclusion that the employee=s usual and customary occupation was a welder, and that the employee was likely to be permanently precluded from engaging in this occupation.  Substantial evidence supports the compensation judge=s determination that the employee was a qualified employee and was entitled to rehabilitation services.

 

PRACTICE & PROCEDURE - EXPANSION OF THE ISSUES.  Where the employer had three months notice of the employee=s claim for temporary partial disability, presented testimony at the hearing in defense of the claim, and showed no specific prejudice as a result of the addition of the claim, the compensation judge properly included the employee=s claim for temporary partial disability benefits at the hearing.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Where the employee provided evidence of ongoing restrictions and reduced wages, obtained a number of jobs during the period in dispute, and provided evidence of a job search, substantial evidence supports the conclusion that the employee suffered a loss of earning capacity as a result of her work injury, and the compensation judge=s award of temporary partial disability benefits.

 

PETITION TO VACATE - NEWLY DISCOVERED EVIDENCE.  It is not the purpose of this court=s authority pursuant to Minn. Stat. '' 176.461 and 176.521, to permit repeated litigation of factual issues already decided on competent evidence.  The award of temporary partial disability benefits in this case is effective through the date of hearing.  If, post-hearing, the employee is no longer entitled to wage loss benefits because she has returned to work for the employer at full wages, Minn. Stat. '' 176.238 and 176.239 provide the appropriate remedy for discontinuing payment of wage-loss benefits.

 

Affirmed.  Petition to vacate denied.

 

Determined by Johnson, C.J., Wilson, J., Rykken, J.

Compensation Judge: Patricia J. Milan

 

Attorneys: Leslie M. Altman, Rider Bennett, LLP, Minneapolis, MN, for the Appellants/Petitioners.  Mark J. Fellman, Attorney at Law, St. Paul, MN, for the Respondent.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals from the compensation judge=s award to the employee of rehabilitation benefits and temporary partial disability benefits.  We affirm.  The petition of the self-insured employer for vacation of the Findings and Order based on newly discovered evidence is denied.

 

BACKGROUND

 

Carol A. Schjenken, the employee, sustained a work-related injury in the nature of a disc herniation at C6-7 on February 8, 2000, while working for Bermo, Inc., the employer, then self-insured for workers= compensation liability.  The parties stipulated the employee earned a weekly wage of $744.91.^[1]  The employer admitted liability for the employee=s personal injury.

 

The employee attended high school through the tenth grade, and obtained her GED in 1977.  Thereafter, the employee completed vocational courses in machine tool operation, blue print reading, and math for use in process control.  The employee has worked primarily in manufacturing jobs, including the operation of production machines, engine lathes, milling machines, and drill presses.  In approximately 1986, the employee took a job at Polaris where she worked primarily as a welder, manufacturing mufflers and exhaust systems, dies and fixtures.  Her work at Polaris included tig welding, spot welding, assembly work and operating press brake and punch press machines.  In 1994, the employee left Polaris and took a welding job at Bermo, Inc.  While working for the employer, the employee took advantage of on-site educational programs and completed courses in statistical process control, trade math, and basic blue print reading.

 

Approximately one and a half years after the employee was hired, the employer down-sized the welding department.  The employee moved into the assembly department where she performed a variety of assembly jobs.  Thereafter, the employee returned to the welding department on approximately three occasions, for about three months at a time.  The employee was working in the assembly department on the date of her injury.  The employee last worked in the welding department, prior to her February 2000 personal injury, in December 1999.  The employee=s wage varied depending upon the position in which she was working.  When working in assembly, the employee was paid approximately $16.00 an hour.  When working as a welder in December 1999, the employee was paid $18.64 an hour.

 

As a result of her personal injury, the employee underwent a cervical decompression surgery in March 2000.  She returned to work with the employer in May 2000 in an assembly position.  At that time, the employee did not have sufficient seniority to qualify for a welding job.  The employee testified that while on the assembly line, she had a difficult time making the hourly quota because of her injury.  At some point, the employee returned to the welding department for a short time but testified she was unable to do the job because her neck injury prevented her from wearing the welding hood.  On June 11, 2001, the employee was laid off by the employer.  She returned to work for the employer on September 24, 2001, in an assembly position but was again laid off on January 18, 2002.

 

In March 2002, the employee accepted a job with Fireworks Forever, doing retail sales and customer service.  The employee=s hours varied and she was paid $8.50 per hour.  In July 2002, the employee returned to work for Bermo, Inc., and was again laid off on September 29, 2002.  Up to the date of the hearing, the employee has not been recalled to work by the employer.  In April 2003, the employee went to work for Wal-Mart as a cashier for eight days and then returned to Fireworks Forever.

 

In November 2002, Ms. Debra A. Bourgeois, a Qualified Rehabilitation Consultant (QRC), performed a vocational evaluation of the employee at the request of the self-insured employer.  Ms. Bourgeois obtained an educational, vocational and social history from the employee, reviewed certain medical records, arranged for a vocational testing of the employee, and performed a labor market survey.  Based upon this background, Ms. Bourgeois concluded the employee had not performed a diligent job search from and after September 24, 2001.  She opined the employee had transferable skills in occupations such as machinist, assembler, general office clerk, receptionist, customer service representative, cashier, janitor, hostess, retail sales person, security guard, home healthcare aid, nursing aid, and welder.  Ms. Bourgeois concluded the employee was employable within any of these occupations.  Based upon her labor market survey, the QRC concluded that welding and assembly jobs paid between $11.00 and $13.00 per hour which is less than the employee was earning with Bermo, Inc.  However, Ms. Bourgeois opined that there were currently fewer jobs due to economic conditions which lowered the prevailing wage rate.  Thus, Ms. Bourgeois concluded the employee=s wage loss was due to the economy, not her personal injury.

 

John Busse, a Qualified Rehabilitation Consultant, conducted a rehabilitation assessment of the employee in February 2003.  Mr. Busse obtained an educational and vocational history from the employee and prepared a Rehabilitation Consultation Report (R -2) in which he concluded the employee was eligible for rehabilitation services.  The employee then filed a Rehabilitation Request seeking rehabilitation services.  The employer objected to the requested services and prevailed at an administrative conference.  The employee requested a formal hearing.

 

Mr. Busse testified by deposition, and prior thereto, reviewed the report of Ms. Bourgeois.  Mr. Busse concluded the employee was precluded from returning to work as a welder or to the assembly-type of work she performed for the employer.  Accordingly, Mr. Busse concluded the employee was a qualified employee eligible for rehabilitation services.

 

At some point prior to the scheduled hearing, the employee sought to amend her claim to include a claim for temporary partial disability benefits.  The self-insured employer objected to the claimed amendment.  The compensation judge overruled the objection.  In a Findings and Order filed September 29, 2003, the compensation judge found the employee was qualified for rehabilitation services and ordered the self-insured employer to pay for the services of a QRC and awarded temporary partial disability benefits.  The self-insured employer appeals.

 

DECISION

 

Qualified Employee

 

The employer appeals the compensation judge=s finding that the employee is a qualified employee for rehabilitation services.  Citing Read v. Ford Motor Co., 45 W.C.D. 487 (W.C.C.A. 1991), the appellant contends the employee=s usual or customary occupation is that of an assembler, the job the employee was performing at the time of her injury.  The employee was able to return to a job in the employer=s assembly department following her injury until she was laid off.  Accordingly, the appellant contends the employee is not a qualified employee because she is not precluded from engaging in her usual and customary occupation as an assembler.  We disagree.

 

The rule at issue in the Read case was Minn. R. 5220.0100, subp. 4, which provided that a qualified employee was one who:

A. is permanently precluded or is likely to be precluded from engaging in the usual and customary occupation or position in which the individual was engaged at the time of the injury; and

 

B. can reasonably be expected to benefit from rehabilitation services which could significantly reduce or eliminate the decrease in employability.

 

The rule has since been amended.  Minn. R. 5220.0100, subp. 22, provides:

 

Qualified employee. "Qualified employee" means an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:

A.  is permanently precluded or is likely to be permanently precluded from engaging in the employee's usual and customary occupation or from engaging in the job the employee held at the time of injury;

B.  cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and

C.  can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician's opinion of the employee's work ability.

 

Part A of the current rule requires the employee be precluded from engaging in either the job the employee held at the time of the injury or the employee=s usual and customary occupation.  The employee is a trained welder and worked in that position for Polaris Industries and the employer for approximately ten years.  The compensation judge could reasonably conclude the employee=s usual and customary occupation was a welder.  The employee attempted to perform a welding job at Bermo, Inc., for two days after her injury.  She testified she could not do the job, so she returned to an assembly job.  The employee testified that, given her restrictions, she is now unable to work as a welder.  The compensation judge may rely on an employee=s testimony in deciding whether the employee is capable of performing a particular job.  Brening v. Roto-Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975).  Further, QRC Busse testified the employee was precluded from returning to job as a welder.  Mr. Busse=s opinion was adequately founded and the compensation judge could reasonably rely upon it.  Substantial evidence supports the judge=s decision that the employee is likely to be permanently precluded from engaging in her usual and customary job as a welder.

 

The appellant next argues the employee is not eligible for rehabilitation services because there is no causal connection between the work injury and the employee=s inability to return to her usual and customary employment.  Following her work injury, the employee returned to work with the employer doing assembly work, essentially the same position she held before her injury.  Because the employer had down-sized the welding department, the employee then had insufficient seniority to obtain a welding job.  From May 15, 2000 until June 11, 2001, the employee was able to perform her job duties as an assembler until she was laid off on June 11, 2001, for economic reasons.  The employee conceded she would still be employed at Bermo, Inc., but for the economic slowdown.  Therefore, the appellant argues the employee=s inability to return to work with the employer is due to economic conditions, not her work injury.  We again disagree.

 

There is no dispute the employee has restrictions due to her personal injury.  While she did return to assembly work after her injury, the employee testified she had difficulty doing some of the jobs because they required repetitive motion of her neck.  Ms. Bourgeois opined that because of the employee=s injury, there would be Asome machine operation positions and assembly positions that may be too repetitious and cannot be modified to accommodate her restrictions.@ (Resp. Ex. 1.)  The issue is not the reason for the employee=s lay-off, but rather, whether, after the lay-off, the personal injury is a cause of the employee=s wage loss.  In Rissanen v. Boise Cascade Corp., slip op. (W.C.C.A. June 28, 1989), this court held an employee=s ability to perform a modified job following an injury and prior to an economic lay-off does not negate the employee=s eligibility for rehabilitation benefits.  QRC Busse opined the employee was a qualified employee.  The compensation judge found the employee is a qualified employee eligible for rehabilitation services.  Because this decision is supported by substantial evidence, this court must affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

Temporary Partial Disability Benefits

 

The appellant first argues the compensation judge improperly expanded the issues at hearing to include the employee=s wage loss claim.  The appellant argues it was denied basic fairness and a fair opportunity to defend against the claim for temporary partial disability benefits.  Accordingly, the self-insured employer asks the award of benefits be vacated.  We are not persuaded.

 

In October 2001, the employee filed a claim petition seeking rehabilitation services and later filed a Rehabilitation Request.  Following an administrative conference, at which rehabilitation services were denied, the employee requested a formal hearing.  By order dated May 6, 2001, a compensation judge consolidated the employee=s claim petition and request for formal hearing.  At a pretrial on April 28, 2003, counsel for the employee amended the claim to include a claim for temporary partial disability benefits.  By letter dated April 29, 2003, directed to the employer=s attorney, the employee=s counsel supplied wage records in support of the wage loss claim.  At the onset of the hearing, the compensation judge ruled that appropriate notice was given by the employee of the requested expansion of the issues and allowed the temporary partial benefits claim to be litigated.

 

In certain circumstances, an untimely allowance of an amendment to a claim petition is a violation of due process and is prejudicial.

 

Basic fairness requires that parties in a workers= compensation proceeding be afforded reasonable notice and an opportunity to be heard before a decision concerning entitlement to benefits can be made.

 

Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 894, 40 W.C.D. 869, 872 (1988).  The employer received notice of a temporary partial disability claim on April 28 and had three months to prepare to defend against that claim.  The employer, at the hearing, presented the testimony of Ms. Bourgeois in defense to the temporary partial disability claim.  Neither at the hearing nor in its brief did the employer state what further evidence necessary to defend against the claim it was unable to develop or present because of the employee=s request to amend her claim petition.  We find no basis to conclude the employer was denied basic due process.  We, therefore, affirm the compensation judge=s decision to include the temporary partial disability claim at the hearing.

 

On November 5, 2003, the self-insured employer petitioned to vacate the compensation judge=s Findings and Order filed September 29, 2003.  In that petition, the employer contended the compensation judge=s award of temporary partial disability benefits was based upon an incorrect weekly wage.  In a decision filed November 24, 2003, this court denied that petition to vacate.  Accordingly, this issue is moot.

 

The appellant next argues, that following her injury, the employee was able to perform her job duties as an assembler with the employer until her layoff for economic reasons.  The appellant argues the employee=s rate of pay at Bermo, Inc., decreased due not to her personal injury but to a weak economy.  The only expert testimony regarding the employee=s reduced earning capacity, the appellant contends, is that of Ms. Bourgeois who concluded the employee=s injury caused no loss of earning capacity.  The employer agrees the employee=s earning capacity diminished from 2000 to 2002.  The employer argues, however, the employee failed to prove her wages fell due to her personal injury.  Accordingly, the employer contends the award of temporary partial disability benefits must be reversed.

 

To prove entitlement to temporary partial disability benefits, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity causally related to the disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).  The presence of physical restrictions and the effect of such restrictions on an employee=s ability to work is a central consideration in determining entitlement to wage loss benefits.  See, e.g., Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn.1987).  A job that is no longer available to an employee is of little or no value for purposes of determining entitlement to wage loss benefits.  See, e.g., Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).

 

Dr. Bartie, Dr. Sletten and Dr. Stern all placed restrictions on the employee=s ability to work secondary to her personal injury.  The compensation judge accepted these doctor=s opinions and found that certain jobs at Bermo, Inc., exceeded the employee=s restrictions.  The employee testified her personal injury prevented her from performing some of the material duties of welding and assembly jobs.  Mr. Busse opined the employee was unable to return to her pre-injury job as a welder and opined her work restrictions presented some obstacles to the employee finding alternate employment.  Although Ms. Bourgeois opined the employee sustained no loss of earning capacity caused by her personal injury, she did acknowledge some machine operation and assembly positions might be too repetitious and could not be modified to accommodate the employee=s restrictions.  Considering this evidence, the compensation judge could reasonably conclude the employee suffered a loss of earning capacity causally related to a work-related physical disability.

 

The self-insured employer next argues the employee failed to perform a diligent job search to find work at a wage close to her previous earning capacity.  The appellant argues the employee relied almost exclusively on the newspaper to look for employment, and did not submit any employment applications or call on perspective employers.  Ms. Bourgeois performed a Labor Market Survey in January 2003, which identified jobs for which she opined the employee was qualified which paid from $8.00 to $15.00 an hour.  The appellant contends the employee=s jobs at Fireworks Forever and Wal-Mart were not representative of her earning capacity.  For these reasons, the appellant contends the award of temporary partial disability benefits must be reversed.

 

The compensation judge awarded temporary partial disability benefits from September 24, 2001 through January 20, 2002, from March 7, 2002 through September 22, 2002, and from April 9, 2003, through the date of the hearing.  Between September 24, 2001 and January 20, 2002, the employee worked in assembly for the employer.  On March 7, 2002, the employee went to work for Fireworks Forever until she returned to work for Bermo, Inc,. in July 2002.  The employee was again laid off in September 2002 and was unemployed until she went to work for Wal-Mart on April 9, 2003.  The employee testified she left the job at Wal-Mart after eight days because she began to experience shoulder, back, and neck pain.  The employee then returned to Fireworks Forever where she remained employed on the date of hearing.  Since she returned to work in April 2003, the employee=s job search consisted of reading classified job advertisements and talking to friends in California and Nevada about job leads.

 

A reasonable and diligent job search is not a legal prerequisite to an award of temporary partial disability benefits.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  As a general rule, an employee=s post-injury earnings are presumed to be an accurate reflection of the employee=s ability to earn or 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).  The employer can rebut this presumption but to do so, it must show more than a theoretical possibility of a higher wage without evidence that the work is actually available in the employee=s labor market.  Passofaro v. Blount Constr. Co., 49 W.C.D. 535 (W.C.C.A. 1993).

 

Following her personal injury, the employee was recalled by the employer on two occasions.  On neither occasion was the employee able to return to a welding position and suffered a corresponding wage loss.  At no time since her personal injury has the employee been provided with rehabilitation assistance.  Several of the jobs identified by Ms. Bourgeois in her labor market survey were through employment agencies.  Ms. Bourgeois testified she did not know the name of the employer, the hours of employment, the benefits, or anything else about the job other than the hourly wage.  Other jobs in the labor market survey required training as a nursing assistant which the employee did not possess.  Other jobs in the labor market survey stated a salary range commencing at $8.00 or $9.00 an hour.  This is approximately what the employee earned at Fireworks Forever.  There is no evidence these employment opportunities were ever communicated to the employee or evidence that she was aware of any of them.  The compensation judge concluded the employer failed to overcome the presumption that the employee=s actual post-injury earnings were representative of her earning capacity.  We conclude substantial evidence supports the compensation judge=s decision and it is affirmed.

 

Petition to Vacate

 

The self-insured employer asserts that after the hearing before the compensation judge, the employee again returned to work for the employer.  The petitioner states the employee worked as a laborer earning $12.93 an hour from August 18 until August 25, 2003, when she was reassigned to the welding department where she earned $19.34 an hour.  By letter dated August 19, 2003, counsel for the self-insured employer requested the judge reopen the hearing and allow the self-insured employer to present additional evidence regarding the employee=s post-hearing earnings.  The compensation judge, apparently, did not rule on the employer=s request.  The employer contends the employee=s post-hearing earnings constitute newly discovered evidence which bear on the award of wage loss and rehabilitation benefits.  The employer asks that the compensation judge=s findings and order be vacated and the case be remanded to the compensation judge to consider the newly discovered evidence.

 

A compensation judge is required by statute to issue a decision which includes a determination of Aall contested issues of fact and law.@  See, Minn. Stat. ' 176.371.  A compensation judge does not, however, have authority to make findings with prospective affect beyond the date of the hearing.  Donnahue v. Glory Shine Cleaning, Inc., slip op. (W.C.C.A. June 13, 1996).  In this case, the compensation judge awarded temporary partial disability benefits from April 9, 2003, to the date of the hearing.  The compensation judge also ordered the self-insured employer to pay for the services provided by QRC Busse through the date of the hearing.  If, as the petitioner suggests, the employee is no longer entitled to wage loss benefits because she has returned to work at full wages, Minn. Stat. '' 176.238 and 176.239 provide an expedited procedure for discontinuing the payment of wage-loss compensation.  Similarly, Minn. Stat. ' 176.102, subd. 8, provides a procedure to resolve any dispute about post-hearing entitlement to rehabilitation services.

 

Minn. Stat. '' 176.461 and 176.521 give this court the authority to set aside an award of compensation.  It is not however, the purpose of the statute to permit repeated litigation of factual issues already decided on competent evidence.  Jacobson v. Uptown Transfer & Storage Co., 268 Minn. 336, 129 N.W.2d 41, 23 W.C.D. 231 (1964).  AWhile compensation decisions do not enjoy the same finality as ordinary judgments, the parties are entitled to have their litigation laid to rest with some assurance of finality.@  Turner v. Federal Reserve Bank of Minneapolis, 298 Minn. 161, 167, 213 N.W.2d 414, 418, 27 W.C.D. 149, 156 (1973).  In workers= compensation cases, issues of entitlement to further benefits often arise after the date of a hearing.  In such cases, benefits disputes are typically resolved through subsequent litigation.  If findings and orders could be vacated based solely upon a change of circumstances occurring after the hearing, there would be no finality.  Accordingly, the employer=s Petition to Vacate is denied.