MARGARET COFFING, Employee, v. INDEPENDENT SCH. DIST. #194 and WESTERN NAT'L INS. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 13, 2005

 

No. WC05-136

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - WEBER RATING; EVIDENCE - RES JUDICATA.  Where the permanency claim denied at a 2003 proceeding had been for benefits for a cervical condition under a scheduled provision of the Minnesota Rules, and where the permanency claim at the 2004 proceeding had been for benefits for a forearm condition under a rating pursuant to Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990), res judicata did not bar the compensation judge=s award of benefits pursuant to the 2004 claim, notwithstanding the fact that the forearm condition was already in existence at the time of the 2003 proceeding.

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY; EVIDENCE - RES JUDICATA.  An employee=s earning capacity is neither static nor amenable to a final determination valid for all future periods; where the employee=s wages at her post-injury job were found in an earlier proceeding not to represent her diminished earning capacity during the period at issue, but where her wages at that same job were found in a later proceeding to represent her diminished earning capacity during a later benefits period, the doctrine of collateral estoppel did not apply to bar an award of temporary partial disability benefits in the later proceeding.

 

Affirmed.

 

Determined by: Pederson, J., Johnson, C.J., and Wilson, J.

Compensation Judge: Jennifer Patterson

 

Attorneys:  Arnold M. Bellis, Minneapolis, MN, for the Respondent.  Ronald M. Stark, Jr., Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the employee=s claim for permanent partial disability and temporary partial disability benefits was not barred by res judicata or collateral estoppel.^[1]  We affirm.

 

BACKGROUND

 

Margaret Coffing [the employee] sustained a Gillette-type injury^[2] to her upper extremities, shoulders, and neck on November 1, 1999, while employed as a baker for Independent School District #194 [the employer].  At the time of her injury, the employee was sixty years old and was earning a weekly wage of $399.00 for a 37 2 hour work week.

 

In about June of 2000, the employee resigned from her position with the employer due to symptoms that she was experiencing in her upper extremities, shoulders, and neck.  Restrictions had been placed on the employee=s activities by her treating physician, Dr. Jack Hubbard, and the employer was unable to offer light-duty work within those restrictions.  Consequently, the employee went to work for her daughter as a babysitter from October 30, 2000, through July 19, 2002, and thereafter she obtained a part-time position with Kohl=s Department Store doing light-duty stock clerk work.

 

In 2002, the employee filed a claim petition seeking payment of wage loss benefits and compensation for a 3.5% whole-body permanent partial disability related to her cervical spine.  The case was heard by Compensation Judge Cheryl LeClair-Sommer at the Office of Administrative Hearings on June 5, 2003.  In a Findings and Order issued July 25, 2003, the compensation judge found that the employee had sustained a compensable injury to her cervical spine but had not proven her claim for compensation for a 3.5% whole-body impairment under the permanent partial disability schedules.  The judge also found that the employee=s part-time earnings at Kohl=s Department Store from October 13, 2002, through the date of the hearing did not represent the employee=s earning capacity, Aconsidering the lack of effort to seek additional part-time or alternate full-time employment.@  Accordingly, the judge denied the employee=s claim for temporary partial disability benefits during that time period.  No appeal was taken from Judge LeClair-Sommer=s Findings and Order.

 

Following the hearing before Judge LeClair-Sommer, the employer and insurer agreed to provide rehabilitation services to the employee through qualified rehabilitation consultant (QRC) Michael Flynn.  The employee had not had the services of a QRC before the hearing.  The employee continued to work on a part-time basis for Kohl=s while working with QRC Flynn.  On September 3, 2003, the employee filed a second claim petition for wage loss and permanent partial disability benefits.  The employee claimed entitlement to temporary partial disability benefits continuing from June 6, 2003, based on her earnings at Kohl=s, and to benefits related to a 3.5% permanent partial disability of the whole body relative to the cervical spine.  The employee=s second claim petition was heard before Compensation Judge Jennifer Patterson on December 10, 2004.

 

Between June 2003 and November 20, 2004, the employee=s hours per week at Kohl=s varied from a low of 8 for the week of September 7, 2003, to a high of 41.25 for the week of August 24, 2003.  About a third of the time, the employee worked fewer than twenty hours per week.  In the two or three of the weeks during which she worked forty or more hours for Kohl=s, the employee=s arm symptoms were much worse.  She worked more than thirty hours only to cover for an absent co-worker or when the employer required her to do so, during peak sales periods.

 

The employee made few job contacts of her own between her 2003 and her 2004 hearings.  During that period, QRC Flynn and an intern working with him made most of the calls to potential employers on her behalf, and the employee=s job logs were filled out either by the QRC or a member of his staff in consultation with the employee.

 

The employee underwent an EMG test in August 2004 and a functional capacities evaluation [FCE], performed at the Minneapolis Clinic of Neurology,  in October 2004.  The EMG was read to reveal no nerve damage in the employee=s neck or arms, but the FCE revealed in part that the employee favored her right arm significantly and credibly needed to support it during most activities.

 

Dr. Hubbard testified by deposition on October 29, 2004.  He agreed that the employee did not have objective clinical findings relative to her cervical spine, but he stated that the employee=s symptoms were predominantly in her arms, where she does have objective findings of myofascial trigger points.  He testified that the employee=s forearm condition does not strictly fall into the permanent partial disability schedules, but, extrapolating from the schedules, he concluded that the category most resembling the employee=s condition is the category found at Minn. R. 5223.0370, subp. 3B, which rates a certain degree of cervical pain syndrome at 3.5% of the whole body.  Dr. Hubbard also agreed that the employee can work full time at a job within her restrictions, but he concluded that she should limit her hours of work at Kohl=s, where she repetitively uses her arms, to six hours per day or thirty hours per week.

 

At the hearing before Judge Patterson on December 10, 2004, QRC Flynn opined that, based upon calls that he and his staff had made on behalf of the employee, the employee was not likely to find a job with more hours, higher hourly wages, or both, even if she looked.  Mr. Flynn testified that the employee had fully cooperated with the rehabilitation services that he and his intern had provided to her.

 

Also testifying at hearing was vocational expert L. David Russell, who had conducted a vocational evaluation of the employee on October 15, 2004, and had also prepared a summary report dated November 26, 2004.  Mr. Russell testified that there are select jobs within five miles of the employee=s home that are likely to pay her more on a weekly basis than she has been earning at Kohl=s, where she works fewer than thirty hours per week most of the time.  Mr. Russell opined that higher earnings could result from a single job with a different employer or from a second job in supplement to her earnings at Kohl=s.  He was also of the opinion that the employee=s rehabilitation plan should be changed to require her to make more in-person contacts with potential employers to discuss specific jobs and to find out whether they are within her restrictions.

 

In a Findings and Order issued January 24, 2005, Judge Patterson awarded the employee compensation for a 3.5% permanent partial disability of the whole person under a Weber rating,^[3] for loss of function to the employee=s forearms caused by the November 1999 work injury.  The judge also accepted Dr. Hubbard=s general restriction of the employee to working no more than thirty hours per week in her job at Kohl=s.  Based on these restrictions, the employee=s testimony that she experienced increased symptoms when she worked more than thirty hours per week at Kohl=s, her cooperation with her QRC, and the QRC=s calls to other employers on the employee=s behalf, the judge determined that the employee=s actual earnings at Kohl=s were a measure of her actual post-injury earning capacity, and she accordingly awarded temporary partial disability benefits for the period June 6, 2003, through December 10, 2004.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

On appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, Aunless 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).

 

DECISION

 

1.  Permanent Partial Disability

 

The employer and insurer contend first that the doctrine of res judicata, or Aclaim preclusion,@ bars relitigation of the employee=s claim for permanent partial disability.  They assert that, in spite of the fact that the employee amended her claim from one for impairment of the cervical spine to one for impairment of the upper extremities based on a Weber rating, res judicata bars litigation of the employee=s current permanency claim, since the impairment alleged by the employee was already in place at the time of the first hearing and there had been no change in the employee=s condition.  Furthermore, they argue, the employee had ample opportunity to present her claim for 3.5% permanency based on the Weber decision at the time of the first hearing in June of 2003.  Failing to apply the doctrine of res judicata in this circumstance, they contend, would allow the employee to bring innumerable claims for permanent partial disability based on various theories or Weber ratings in the event that the employee does not prevail on her earlier claims.  We are not persuaded.

 

Res judicata, or Aclaim preclusion,@^[4] is essentially a finality doctrine in which Aa final judgment on the merits bars a second suit for the same claim by parties or their privies.@  Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn. 1984) (citations omitted).  It is well settled that the principles of res judicata are applicable in workers= compensation proceedings.  See Alexander v. Kenneth R. LaLonde Enters., 288 N.W.2d 18, 31 W.C.D. 407 (Minn. 1980).  The doctrine, however, precludes litigation only of claims that were in fact decided in an earlier decision.  Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westerndorf v. Campbell Soup Co., 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).

 

At the 2003 hearing, the permanency claim before the compensation judge was the employee=s entitlement to benefits for a cervical pain syndrome under Minn. R. 5223.0370, subp. 3B.  The compensation judge found that the employee had not proven this claim because Athe medical records lack substantiation of persistent objective clinical findings of involuntary muscle spasm or loss of range of motion of the cervical spine.@  In contrast, the permanency claim at the December 2004 hearing was the employee=s entitlement to benefits for a loss of function to her forearms under a Weber rating.  The claim asserted in 2004 is different from the claim that was asserted in 2003.  The 2004 claim is for a different condition from that litigated in 2003, with different symptoms, one based on a different diagnosis and requiring different proof.  This current claim of the employee was not decided in the earlier decision.  The fact that the employee=s forearm condition was already in place at the time of the first hearing and that there had been no change in the employee=s condition does not preclude the employee from asserting a claim that heretofore had not been raised.  Accordingly, res judicata does not bar the compensation judge=s award of benefits for a 3.5% permanent partial disability related to the employee=s forearms.  Cf. Johnson v. Consolidated Freightways, Inc., 420 N.W.2d 608, 613 (Minn. 1988) (Aneither collateral estoppel nor res judicata is rigidly applied@).

 

2.  Temporary Partial Disability

 

The employer and insurer contend also that the compensation judge erred as a matter of law in failing to apply the doctrine of collateral estoppel, or Aissue preclusion,@^[5] to the employee=s claim for temporary partial disability benefits.  They argue that the issue of whether the employee=s earnings at Kohl=s accurately reflected her earning capacity was decided at the first hearing in June of 2003.  At that time, the judge denied the claim for temporary partial disability benefits because the employee failed to seek additional part-time or alternate full-time employment.  The employer and insurer argue that the employee=s medical condition has not changed since the first hearing and that the employee contacted only four to six prospective employers to look for additional work during the entire period from June 6, 2003, to the date of the second hearing.  Since there has been no reasonable or diligent job search to accompany the employee=s continued employment at Kohl=s, they contend, the issue of whether the earnings at Kohl=s accurately represent the employee=s earning capacity was decided at the earlier hearing.  As such, they continue, the doctrine of collateral estoppel bars relitigation of this issue.  We are not persuaded.

 

Where a disabled employee is released to work on a full-time basis but works only at a part-time job, the employee may still be eligible for temporary partial disability benefits if any wage loss is causally related to the personal injury; if a part-time position is all that the employee is able to obtain because of the disability, the employee is entitled to benefits.  See DeNardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 631-32 (Minn. 1990).  In other cases, however, where full-time positions are available to the employee, working less than full-time may not be reasonable, and the employee may not be entitled to benefits.  See, e.g., Fisher v. Corn Belt Meats, 52 W.C.D. 687, 695 (W.C.C.A. 1995).  Whether the wage loss during part-time employment is a result of the personal injury is generally a question of fact, in deciding which the compensation judge may consider any relevant evidence, including the nature and extent of the employee=s job search.  See Stauty v. Luigino=s, Inc., 52 W.C.D. 119, 124-25 (W.C.C.A. 1994).  When the employee has a qualified rehabilitation consultant or when a rehabilitation plan is in effect, however, the focus is less on the employee=s job search than it is on the employee=s cooperation with rehabilitation assistance.  Schreiner v. Alexander Constr. Co., 48 W.C.D. 469, 476 (W.C.C.A. 1993) (citations omitted).

 

In the present case, the compensation judge determined that Dr. Hubbard=s general restriction of the employee to working no more than six hours per day at a job requiring repetitive arm use, such as the job at Kohl=s, is reasonable.  The judge also accepted the employee=s testimony that she experienced increased symptoms when she worked more than thirty hours per week at Kohl=s.  In addition, the judge found that the employee had fully cooperated with the rehabilitation services provided by QRC Flynn and the intern working with him.  While the employee may personally have contacted only four to six prospective employers during the period at issue, QRC Flynn=s office, on behalf of the employee, contacted many more prospective employers during that period, without success.  On these findings, the judge reasonably concluded that the employee=s earnings at Kohl=s were an accurate measure of her post-injury earning capacity, diminished as a consequence of her work injury.  These findings of the judge are supported by substantial evidence in the record.

 

With respect to the employer and insurer=s argument that the issue of the employee=s earning capacity at Kohl=s has already been determined, we must disagree.  As this court has stated, AAn employee=s earning capacity is neither static nor amenable to a final determination valid for all future periods.@  Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71, 78 (W.C.C.A. 1990).  The prior findings of Judge LeClair-Sommer have effect only for the period for which benefits were then at issue.  Because Judge Patterson=s findings pertain to a new period of benefits not previously litigated, we do not find the doctrine of collateral estoppel applicable here.  Cf. Saenger v. Liberty Carton Co., 316 N.W.2d 737, 34 W.C.D. 499 (Minn. 1982) (a prior finding that the employee was not disabled and had retired from the labor market as of August 1977 did not preclude contrary findings for a subsequent period); Drexler v. Armour & Co., 40 W.C.D. 430 (W.C.C.A. 1987) (a prior finding of withdrawal from the labor market and lack of a diligent job search during an earlier period did not preclude an award of temporary benefits for a subsequent period).  Accordingly, the judge=s award of temporary partial disability benefits is affirmed.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.