JULIA P. CICI, Employee, v. METHODIST HOSP., SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., Employer/Appellant.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 31, 2005

 

No. WC05-125

 

 

HEADNOTES

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE; TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee remained subject to restrictions, and worked at various temporary contract positions for intermittent periods of time between 2002 and 2004, substantial evidence supports the compensation judge=s determination that the employee=s work injury was a substantial contributing cause of her loss of earnings for those periods of time.

 

Affirmed.

 

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

Compensation Judge: Bradley J. Behr

 

Attorneys: Charles M. Cochrane, Cochrane Law Office, Roseville, MN, for the Respondent.  Karen M. Charlson, Felhaber, Larson, Fenlon & Vogt, St. Paul, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s finding that the employee was entitled to temporary partial disability benefits for intermittent periods of time between 2002 and 2004.  We affirm.

 

BACKGROUND

 

On June 18, 1990, Julia Cici, the employee, was employed by Methodist Hospital, the self-insured employer, and sustained an admitted low back injury while lifting and installing a computer.  The employee was 39 years old at the time of her injury, and worked as a computer technician or PC coordinator, earning a weekly wage of $600.00.  Although the employee continued working for approximately six weeks after her injury, she experienced increasing low back and lower extremity pain.

 

As a result of her symptoms, the employee sought chiropractic treatment, and later was referred to Dr. Michael Bromer, a neurologist, who prescribed anti-inflammatory and pain medication, an epidural steroid injection and home exercises.  After conservative treatment did not relieve the employee's symptoms, Dr. Bromer referred the employee to Dr. Edward Hames, a neurosurgeon, who diagnosed a right L5 radiculopathy secondary to an L5-6 herniated nucleus pulposus.  On October 25, 1990, the employee underwent surgery, performed by Dr. Hames, in the nature of decompression and microdiscectomy at the L5-6 level.^[1]  After her surgery, the employee underwent physical therapy at Abbott-Northwestern Hospital from late October 1990 through mid-January 1991, and eventually returned to work in mid-1991.  During November and December of 1991, the employee again experienced severe low back and right leg symptoms, and underwent diagnostic tests which showed a recurrent right disc herniation at the L5-6 level.

 

On January 6, 1992, the employee underwent surgery in the nature of an L5 through L6 complete laminectomy, with a right L5-6 repeat lumbar microdiscectomy.  After her second surgery, the employee underwent physical therapy and later attended a chronic pain rehabilitation program at the Sister Kenny Institute.  The employee eventually was diagnosed as having another recurrent disc herniation.

 

The employee also experienced non-work-related bilateral hip problems.  Initially she was diagnosed with bursitis and underwent physical therapy in July 1991.  During the first six months of 1993, the employee's hip problems increased, and she was diagnosed as having a vascular necrosis of the right and left femoral heads.  On August 25, 1993, the employee underwent a total left hip replacement, and on November 12, 1993, she underwent a total right hip replacement and was disabled for a period of time during recuperation from surgery.

 

In 1995, the employee underwent an ulnar nerve release surgery, for another condition not at issue here.  For a period of time in the early 1990s, the employee received Social Security disability income, evidently on the basis of her hip, upper extremity and lower back conditions.

 

This matter was the subject of earlier litigation.  The parties entered into a stipulation for settlement in February of 1991 which closed out all of the employee's future workers' compensation benefits except future reasonable and necessary medical expenses.  An award on stipulation was served and filed on February 20, 1991.  After her recurrent disc herniation, the employee petitioned to vacate the stipulation for settlement in June of 1993.  In a decision dated November 10, 1993, this court granted the employee's petition to vacate the 1991 award on stipulation on the ground that the employee's medical condition substantially changed after the award had been issued.  Cici v. Methodist Hospital, 50 W.C.D. 149 (W.C.C.A. 1993), summarily aff=d (Minn. Mar. 1, 1994).

 

In February 1995, a hearing was held to address various claims for temporary disability benefits during intermittent periods between 1990 and 1995, as well as a claim for permanent partial disability benefits.  In her findings and order issued on March 7, 1995, a compensation judge awarded the claimed temporary total disability benefits as well as permanency benefits representing a 14% whole body impairment attributable to the employee=s low back condition.  The judge denied the employee=s claim for temporary partial disability benefits between December 1994 and February 1995 on the basis that the employee failed to establish her burden of proving that she sustained a loss in earning capacity as a result of her work-related injury of June 18, 1990.  On appeal, this court affirmed the findings and order.  Cici v. Methodist Hospital, slip op. (W.C.C.A. Aug. 31, 1995).

 

The employee is a college graduate and has significant computer knowledge.  She completed college courses at the University of Minnesota during the 1970s and, in approximately 1980, she graduated from Golden Gate University with a bachelor of science degree in Business Administration.  Although the employee has had limited formal computer training and is essentially self-taught in the computer field, she has substantial computer knowledge and experience, and has been employed in numerous professional positions.

 

For approximately four years, beginning in 1995, the employee performed consulting and systems administration work for Mainstream Consulting Group; her position was eliminated for financial reasons.  Thereafter the employee worked at various technical positions.  Between May 1999 and March 2000, the employee worked for Ulysses Net Solutions, performing UNIX systems administration, earning a salary of $36,000/year.  She voluntarily quit that position in anticipation of the closing of that company.  The employee next worked for Integra Telecom of Minnesota as a data technician, between March 2000 and March 2001, earning $52,000 per year, and was laid off from that position for reasons unrelated to her low back injury and condition.

 

The employee testified that she continued to notice flare-ups of her low back condition, which have been managed with epidural steroid injections, physical therapy, pool therapy and pain medications.  She obtained periodic treatment at Noran Neurological Clinic, due to ongoing symptoms and, by 2000 and 2001, experienced increased symptoms in her low back.  By the time of her layoff in March 2001, the employee=s low back condition had worsened, with increasing pain, numbness down both legs and weakness in her right leg.  The employee consulted Dr. Fred Lux at the Noran Neurological Clinic on July 2, 2001, for severe low back pain.  She used a cane due to difficulty bearing weight on both legs.  Dr. Lux ordered an MRI scan, which was taken on July 17, 2001, and which indicated a moderately large recurrent disc herniation and degenerative disc disease.  Dr. Lux re-examined the employee on July 23, 2001, and, based on the results of the MRI scan, restricted the employee from work pending a surgical consultation.

 

Dr. Hames, the neurosurgeon who performed her surgeries in 1990 and 1992, examined the employee on August 2, 2001, to address her ongoing low back pain as well as numbness and tingling in her legs.  Dr. Hames diagnosed severe degenerative disc disease at L4-5 and L5-S1, and recommended against additional surgery.  He expressed concern that further surgery would require a fusion, which he did not recommend in view of the employee=s weight level and smoking history.  Instead, he recommended weight loss to create less stress on her lumbar spine.

 

While off work in 2001, the employee sought work within her restrictions of no lifting over ten pounds, no squatting, climbing or crouching, limited bending and stooping, infrequent kneeling, no repeated use of her feet, and no pushing or pulling over ten pounds.  Between December 2001 and February 2002, she obtained employment with U.S. Bank, through a temporary placement agency, and earned full-time wages of $20.00 per hour.  Since February 2002, she has worked at various temporary or consulting positions, ranging from two weeks to five months in duration, most of  which were obtained through temporary personnel agencies.  Some of the positions were part-time, and others were full-time; the employee=s wages varied between $10.00 and $17.00 per hour, with overtime pay earned for her work with one of the employers.  By comparison, at the time of her injury in 1990, the employee worked full-time, earning $600 per week, which calculated to an hourly wage rate of $15.00.

 

On April 2, 2002, the employee underwent an examination with Dr. Daniel Randa at the employer=s request.  Dr. Randa opined that the employee did not require additional surgery, and that she had not been totally disabled after March 15, 2001.  He concluded that her current symptoms were long-standing since 1990, that her work in a computer technical support capacity was non-physical, and that he found no indication in her medical history examination or records that she was temporarily totally or temporarily partially disabled from employment.  He further concluded that the employee had reached maximum medical improvement with respect to her lumbar spine disorder.

 

On April 23, 2002, Jan Lowe, who initially evaluated the employee in 1995, conducted a vocational evaluation of the employee on behalf of the insurer, to evaluate the employee=s earning capacity and to assess whether the employee needed additional certification in the computer field.  In view of the employee=s demonstrated employability and her physical capacities, Ms. Lowe concluded that she continued to be employable in the computer industry where she recently had held regular employment, and prepared a labor market survey to show examples of job openings which had been available to the employee.  Ms. Lowe concluded that the employee=s earning capacity ranged between $35,000.00 and $50,000.00 per year, based upon her qualifications and the labor market conditions.

 

A hearing was held on June 13, 2002, to address the employee=s claims for a surgical consultation, rehabilitation assistance, and temporary total disability benefits for a nine-month period in 2001.  In findings and order served and filed on August 12, 2002, the compensation judge found that the employee was entitled to a second surgical opinion from Dr. Dyste; the employer did not appeal this finding.  The judge awarded payment of temporary total disability benefits between July 23 and August 2, 2001, but denied benefits for other claimed periods in 2001, on the basis that the employee had not performed a reasonably diligent job search and was not disabled from working during these same time periods.  On appeal, this court affirmed the compensation judge=s findings and order.  Cici v. Methodist Hospital, 63 W.C.D. 421 (W.C.C.A. 2003).^[2]

 

The employee experienced periodic flare-ups of her low back symptoms.  She underwent additional physical therapy in early 2003; since her 1990 injury, the employee has also periodically received epidural injections to treat her symptoms.  Additional litigation ensued concerning her need for additional medical care, including a hearing held on June 5, 2003, to address on the employee=s claim for expenses related to emergency room treatment for her low back, rendered at Fairview Southdale Hospital on four occasions between 2001 and 2003.  The hearing also addressed the employee=s petition for penalties claimed due to delayed payment of medical expenses, prescriptions and medical mileage.  In findings and order served and filed on August 4, 2003, a compensation judge awarded payment of medical expenses and Roraff attorney fees, but denied the claim for penalties.  No appeal was taken from that findings and order.

 

In approximately July 2003, the employer=s insurance administrator requested that Ms. Luanne Graham, qualified rehabilitation consultant (QRC), conduct a rehabilitation evaluation of the employee.  The employee was working full-time at that point, in a temporary contract position, and the QRC determined that she was eligible for rehabilitation services.  The employee=s vocational goal was to establish a permanent placement in a full-time position that offered benefits.  Upon further assessment, the QRC recommended that the employee obtain her certification as a Microsoft Certified Systems Engineer (MCSE), or that, at a minimum, she complete a portion of the certification related to network administration or security.  The employer provided ongoing rehabilitation assistance.  The QRC did not place the employee in a formal job search program, nor did she provide the employee with any job leads, but she monitored the employee=s ongoing job search and reviewed the job search documentation provided to her by the employee.

 

Another hearing was held on February 18, 2004, to address the employee=s claims for payment of medical expenses incurred in 2003, and to address the issue of whether the employee=s injury to her left arm and wrist, resulting from a fall on approximately March 17, 2003, occurred as a direct consequence of her 1990 low back injury.  In his findings and order served and filed on April 6, 2004, a compensation judge found that the employee=s medical treatment in 2003 at the Noran Neurological Clinic, for her low back condition, was reasonable, necessary and causally related to her 1990 work injury.  The compensation judge also found that the employee=s fall on March 17, 2003, when her right leg gave out, resulted in a left wrist injury that was a direct consequence of her low back condition.  The judge awarded medical expenses related to the employee=s left wrist injury; no appeal was taken from that findings and order.

 

The employee has periodically consulted Dr. Lux for ongoing low back symptoms.  In December 2003, she reported to Ms. Dodie Downey Russell, a nurse practitioner who works with Dr. Lux, that her symptoms had increased during the previous two weeks.  She reported that by the end of the day, she felt increased low back pain and left lateral leg pain, and that she could not bear weight on her left leg unless she used a cane.  She continued pool therapy and use of pain medications as well as amitriptyline to aid her sleep.  On January 16, 2004, the employee underwent an epidural steroid injection to her low back, which alleviated her symptoms somewhat, although her symptoms flared up again later in 2004.

 

The current claim on appeal arises from a claim petition the employee filed on February 25, 2004, in which she sought payment of temporary partial disability benefits for three intermittent periods of time: February 4-17, 2002, May 19, 2002, through September 21, 2003, and May 4 through October 23, 2004.  The employee also sought approval for a skills enhancement training course in the area of computer systems.  The self-insured employer denied liability for the claimed wage loss benefits and training expenses.

 

On July 13, 2004, Ms. Jan Lowe conducted another employability evaluation and directed a labor market survey.  Ms. Lowe noted that the economic conditions that had adversely affected the computer industry over the previous two years had started to ease, although she  acknowledged that there was still stiff competition for jobs in this field.  Based on the labor market survey and the employee=s work history since 2002, Ms. Lowe concluded that the employee was well-qualified for a variety of positions in the computer industry which fell within her physical restrictions, and that the employee=s earning capacity ranged from $30,000.00 to $40,000.00 per year.  She also concluded that A[a]ttendance at the MCSE training program will not enhance Ms. Cici=s employability unless she finishes the program and diligently seeks employment,@ and that without that training and related certification, she would still qualify for a number of other positions.

 

Dr. Randa re-evaluated the employee on August 11, 2004, at the employer=s request.  He diagnosed the employee with chronic degenerative lumbar spondylosis with previous lumbar disc herniations that had been surgically treated.  Dr. Randa concluded that the employee=s current lumbosacral complaints were quite mild, and that her neurological examination showed no objective deficits.  He determined that the employee had reached  maximum medical improvement by the time of his earlier examination on April 2, 2002, and that she remained at MMI.  Dr. Randa also noted that the employee experienced intermittent aggravations depending upon her level of activity, but found  no evidence that the employee had been temporarily partially disabled or temporarily totally disabled since February 4, 2002.  He concluded that:

 

Aside from perhaps a few days of rest for acute flareups of her low back pain, there is no interval of time in which [the employee] was temporarily partially disabled.  Ms. Cici has been capable of working whatever jobs are available within her profession within the restrictions as outlined in the medical records. . . . Ms. Cici should avoid activities that require frequent flexion of the lumbar spine or lifting more than 20 to 30 pounds on a regular basis.  Aside from this, she is capable of working full-time.

 

Dr. Randa recommended continued use of anti-inflammatory medications, plus amitriptyline and Neurontin, and perhaps stronger pain medication if needed for flare-ups of pain.  He also advised that a brief course of physical therapy for four to six sessions would be reasonable for significant flare-ups of low back pain.

 

A hearing was held on December 8, 2004, to address the employee=s claim petition.  Extensive documents were submitted into evidence, including rehabilitation records generated by the employee=s qualified rehabilitation consultant (QRC); wage records; medical records documenting treatment since the employee=s June 18, 1990, injury; records submitted by the employee to document her job search, including copies of job postings displayed on the internet, applications and letters she had submitted to potential employers, and lists of jobs for which she  applied; and reports and a labor market survey prepared by Ms. Jan Lowe.  Testimony was offered by the employee, her QRC, and Ms. Lowe.

 

In findings and order served and filed on January 5, 2005, the compensation judge awarded temporary partial disability benefits for intermittent periods of time between 2002 and 2004.^[3]  He found that the employee remained subject to permanent restrictions as a result of her June 18, 1990, work injury at Methodist Hospital.  He concluded that, for intermittent periods of time between 2002 and 2004, the employee demonstrated a loss of earning capacity which was attributable to her 1990 work injury, that her actual earnings fairly represented her earning capacity, and that she was entitled to temporary partial disability benefits based upon her earnings.

 

In an unappealed finding, the compensation judge denied the employee=s claim for skills enhancement training, in the network security area, based on his conclusion that the employee had not shown that such training was reasonable or necessary to improve her employability.

 

The self-insured employer appeals from the award of temporary partial disability benefits.

 

DECISION

 

The employer argues that the compensation judge erred by awarding the employee=s claim for temporary partial disability for various periods of time since February 4, 2002.  Temporary partial disability benefits (TPD) are generally payable 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.  Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  When a disabled employee is released to return to work and obtains full-time employment, 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).^[4]  In addition, working less than full-time may or may not be reasonable under the particular facts of the case.  Kunferman v. Ford Motor Co., 65 W.C.D. 198 (W.C.C.A. 2004), summarily aff=d (Minn. Apr. 19, 2005); Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  That presumption may be rebutted by evidence establishing that the reduction in the employee=s earning capacity is unrelated to the employee=s disability.  Borchert v. American Spirits Graphics, 582 N.W.2d 214, 215, 58 W.C.D. 316, 318 (Minn. 1998).

 

The issue of earning capacity is factual in nature and is determined by the compensation judge as the trier of fact.  Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976); Noll v. Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989); see Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987).  See also Serra v. Hanna Mining Co., slip op. (W.C.C.A. Apr. 12, 2005), summarily aff=d (Minn. Aug. 23, 2005).  The question for this court on appeal is whether substantial evidence supports the decision of the compensation judge.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).

 

The judge found that the employee was physically able to work from February 4, 2002, through the date of hearing, but that she was subject to permanent injury-related restrictions including no lifting or more than 20 pounds and no push/pulling of more than 30 pounds.  The employer did not appeal from those findings, but did appeal from the compensation judge=s finding that the employee had demonstrated a loss of earning capacity attributable to her injury of June 18, 1990, and from the finding that, for those periods when the employee was employed since 2002, her earnings fairly represented her earning capacity.

 

The employer contends that neither any loss of earnings since 2002 nor any inability to obtain permanent employment is causally related to the employee=s low back condition.  The employer argues that it is the economic downturn in the employee=s field, the computer and IT industry, and not the employee=s physical condition, that affected her earning capacity during the time periods at issue.  Since 2002, and even earlier, the technology job market and availability of jobs for which the employee was qualified suffered a drastic decline.  The evidence, including testimony of the expert witnesses and the employee, demonstrates that the national loss of jobs in the IT job market and the outsourcing of jobs has caused unemployment in that field, higher competition for available jobs, and a decrease in pay rates.  The employer argues that the employee, along with many other IT professionals, has not suffered a decrease in pay because her restrictions prevented her from obtaining higher paying work, but that she suffered a decrease in pay because jobs were scarce, pay rates were cut, many businesses switched from hiring their own employees to hiring temporary staff and consultants, and competition for technology jobs was fierce.

 

The employee has held several jobs since her employment with Methodist Hospital ended.  At times  the employee has been able to secure work either at or above her pre-injury wage, and some of those jobs were temporary in nature, which is reflective of many jobs in the IT area.   The employer argues that because the employee=s disability and related restrictions did not preclude a return to her pre-injury occupation or earnings, she was not entitled to temporary partial disability benefits.

 

The employee agrees that economic factors, such as the downturn in the IT field, have affected her ability to obtain permanent employment since 2002.  She argues, however, that this represents only one factor affecting her loss of earning capacity, and that her low back injury has caused residual disability that limited her ability to obtain or perform certain jobs within the IT field.  She asserts that medical documentation and vocational evidence, along with her testimony regarding her physical limitations and their effect on her employment, all establish her continuing disability.

 

The compensation judge concluded that the employee=s injury-related restrictions have prevented her from applying for certain types of work involving extended walking, bending or lifting, and therefore her restrictions Acontinue to be a limiting factor which affects her job search.@  The employee=s treating physician, Dr. Lux, has imposed ongoing restrictions on the employee=s activities which have been in effect since at least February 4, 2002, the first date for which the employee claims TPD.  According to the employee=s QRC, the employee=s restrictions limit her to sedentary work, and the employee has been disqualified from certain jobs with requirements exceeding her physical restrictions.  According to the employee=s testimony, she finds that during her work day she must move around approximately every two hours due to her stiff back and that she is unable to stand or walk for an extended period of time.  In addition, medical records document her periodic flare-ups and low back pain, pain radiating down both legs, and a related left arm injury the employee sustained in 2003 when her right leg gave out as a result of her low back condition.

 

The record amply supports the compensation judge=s conclusion that the employee remains subject to physical restrictions as a result of her low back injury, and that her injury continues to limit her earning capacity.  The record also supports the compensation judge=s conclusion that economic factors only partially affected the employee=s loss of earning capacity, and that her physical restrictions related to her low back injury continue to affect her earning capacity.

 

The employer also argues that because the employee=s job search for higher-paying work was limited, or nonexistent, since 2002, and because she provided no documentation of any jobs she was precluded from as a result of her low back condition, she is not entitled to temporary partial disability benefits.  The employer relies on the expert vocational opinion of Jan Lowe, who supervised the preparation of a labor market survey which demonstrated that the employee was underemployed in her field.  Ms. Lowe also concluded that the employee=s job search records did not document a reasonable, diligent job search and testified that there was Aa lot more that she could have done during her job search that would have increased her access to the labor market.@  The compensation judge disagreed, finding that the employee had engaged in a reasonable and diligent search for employment from February 4, 2002, through the date of the hearing, and had cooperated with rehabilitation assistance during that period of time.

 

While a reasonable and diligent job search is not required for an award of temporary partial disability benefits, the nature and extent of any job search is evidence which the compensation judge may consider in determining whether the employee=s wage loss was causally related to the work injury.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  The record contains evidence of the employee=s job search.  The employee submitted records into evidence, including copies of information she reviewed during her job search, job applications and letters submitted to potential employers, and lists of job contacts.  The employee testified about the various methods she used to research jobs openings.  In addition, the employee=s QRC testified that, in her opinion, the employee had conducted a reasonable, diligent job search.

 

The compensation judge acknowledged the employer=s argument concerning the effect of the downturn in the IT field on the employee=s earnings.  He concluded, however, that the employee had established her entitlement to temporary partial disability benefits, and summarized the basis for his conclusion as follows:

 

The employer=s argument is an interesting one, and not totally without merit.  While it is clear that the economy and industry-wide changes in the IT field have had an adverse impact, I find that the preponderance of the evidence supports the employee=s TPD claim.  The mere fact that economic factors contribute to her reduction in earnings does not bar her claim for temporary partial disability benefits.  Her physical restrictions continue to be a limiting factor which affects her job search.

 

Secondly, I am not persuaded that the employee=s earnings have been adversely affected an inadequate job search, as suggested by the employer.  The employee has been very active and creative in seeking work through a number of channels.  She has cooperated with her rehabilitation provider.  The  presumption of earning capacity created by the employee=s actual earnings has not been rebutted.

 

On the basis of the evidence as a whole, the compensation judge could reasonably conclude that the employee was entitled to temporary partial disability benefits, for the time periods at issue, as a substantial result of the 1990 work injury.  We therefore affirm.