RITA M. JOHNSON, Employee, v. INDEPENDENT SCH. DIST. NO. 829, and WESTERN NAT’L. MUT. GROUP, Employer-Insurer/Appellants.

 

WORKERS’ COMPENSATION COURT OF APPEALS

FEBRUARY 28, 2005

 

No. WC04-239

 

HEADNOTES

 

EARNING CAPACITY; JOB SEARCH; TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence of record, including the employee’s testimony, expert vocational opinion and medical evidence, supports the compensation judge’s finding that the employee’s wage loss from and after May 30, 2002, was causally related to the employee’s work injury.

 

Affirmed.

 

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

Compensation Judge:  Gary P. Mesna

 

Attorneys:  Andrew A. Willaert and Dan J. Hoehn, Gislason & Hunter, Mankato, MN, for the Respondent.  Ronald M. Stark, Jr., Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge’s award of temporary partial disability benefits.  We affirm.

 

BACKGROUND

 

On June 1, 2000, Rita Johnson, the employee, sustained a work-related injury to her left arm during a school field trip while working as a paraprofessional assistant teacher for Waseca Independent School District No. 829, the employer, which was insured for workers’ compensation liability by Western National Mutual Insurance Company, the insurer.  The employee fractured her left arm when she slipped while getting off a tour wagon.  The employer and insurer admitted liability and paid various workers’ compensation benefits. 

 

The employee has a high school education and certification as a paraprofessional for the school district.  Her work history consists primarily of work as a paraprofessional teaching assistant, home health aide, small assembly work, electronic assembly and office and clerical work.

 

At the time of her injury, the employee worked full time for the employer, 40 hours per week.  For approximately three years before her injury, the employee also had worked at another part-time job for a different employer, also located in Waseca, as a home health aide; she worked nine hours per week working three nights per week, three hours per night.  The employee also worked at a factory during the three previous summers when school was not in session, assembling electronic equipment.  The employee’s combined weekly wage on her injury date was $478.95.

 

After her injury, the employee was unable to return to her home health aide position or her summer job at the factory due to restrictions related to her injury.  The employee’s fracture was severe, in the nature of a comminuted impacted and dorsally angulated intra-articulated fracture of the distal radial metaphysis and a ulnar styloid fracture, and has required four surgeries.  The first surgery was conducted on September 7, 2000, by Dr. Michael Kearney of the Orthopedic & Fracture Clinic; Dr. Kearney performed a corrective osteotomy of the left distal radius with a left illiac crest bone graft.

 

The employee continued to work at her paraprofessional teaching assistant position in the fall of 2000.  Her duties primarily involved one-on-one tutoring and supervision of children with special needs or behavior problems.  She was assigned to assist special education teachers, and worked with children with learning disabilities, some of whom displayed behavior and violent behavior, but after her injury she was assigned to children with less behavior problems.  In the autumn of 2000, due to budget cuts, the employer reduced the employee’s hours from 40 hours per week to 33.75 hours per week.  She augmented her paraprofessional job by working two hours per week at Kid’s Academy, a children’s program conducted by the employer. 

 

Commencing in September 2000, the employer and insurer provided rehabilitation services to the employee.  The rehabilitation plan signed on October 10, 2000, by the employee’s qualified rehabilitation consultant, Michael Kahnke, indicated that the vocational goals of the plan were to return to work with the same employer, to define her medical restrictions, and to assist the employee in finding a part-time job to replace the hours she missed from the second job she held at the time of her work injury.

 

On May 3, 2001, Dr. Kearney performed additional surgery on the employee’s left arm, a fusion of the left distal radioulnar joint and a resection of the distal ulna.  During the summer of 2001, the employee worked 20 hours per week at a children’s community education program, and then resumed her work as a paraprofessional teaching assistant during the 2001-2002 school year.  Vocational rehabilitation services were extended through December 2001; the reasons listed in the rehabilitation plan amendment were that the employee had restrictions and was under-employed.

 

The employee’s QRC provided job search assistance to the employee, but evidently a dispute arose as to the geographical areas in which the employee agreed to look for work.  The record contains job logs prepared by the employee, documenting her job search for jobs in the Waseca area between October and December 2001.  The record also contains one rehabilitation report prepared by the employee’s QRC, dated January 31, 2002.  In that report, the employee’s QRC indicates that the employee was not willing to work on weekends or to job search outside of Waseca. According to the employee’s testimony, it was difficult to locate part-time employment outside of Waseca that would complement her work hours with the employer, and she also chose to limit the amount of driving she would do.  The employee testified that she was willing to work another job, other than her job with the school district.  However, she also testified that she most likely could have worked at a second job for three or four hours, after leaving her teaching assistant job at 3:00 p.m, but that to commute to such a limited job in another community, at a lower hourly wage than her previous jobs, would not make “economic sense.”  Rehabilitation assistance was discontinued in February 2002, by mutual choice, since the employee  had not found any part-time jobs that could fit with her other work for the employer and that they “had kind of exhausted [their] search.”^[1]

 

After the closure of rehabilitation assistance in 2002, the employee performed a minimal job search.  The employee testified that she contacted only three additional employers through the date of the hearing.  She testified that she has kept in contact with the school system about potential openings in other areas, such as before-school programs, and also has maintained contact with Johnson Components, her previous summer employer, in the event her restrictions are reduced enough to allow her to return to that type of work.

 

On April 4, 2002, Dr. Kearney performed an additional surgery to remove an internal fixation plate in the employee’s left wrist.  On May 19, 2002, while moving a couch at home in order to change a light bulb, the employee refractured her left arm at the site of one of the surgical screw holes in her distal radius.  Dr. Kearney examined the employee on May 20, 2002, and concluded that the refracture did not result from a significant new injury, but was a complication of her initial injury, since the refracture occurred through one of the surgical drill holes and was “definitely a complication of treatment.”  This injury required additional surgery, a left radius closed reduction of the fracture, which was performed by Dr. John Springer on May 20, 2002.  Dr. Kearney eventually released the employee to return to work within restrictions, including a limitation to only light activity with the left arm, and avoidance of any lifting activities and any rotation which seem to irritate the left arm.  Dr. Kearney prescribed a removable splint for extra support.

 

In approximately April or May 2002, the employer and insurer discontinued temporary partial disability benefits, although there is no indication in the hearing record as to when those benefits were discontinued.

 

On July 5, 2002, the employee filed a medical request for medical expenses related to her refracture and related surgery.  The employer and insurer disputed liability and alleged that the employee’s current condition was the result of a superseding and intervening cause.  A hearing was held on November 22, 2002.  On January 6, 2003, the compensation judge issued a findings and order in which she found that the employee’s action in moving the couch did not represent an intervening cause of her ongoing disability and need for further medical treatment but instead resulted in an injury to the employee’s already injured left forearm and was a compensable consequence of the employee’s original work injury.  The compensation judge awarded medical expenses and medical mileage.  The employer and insurer appealed, and this court affirmed.  Johnson v. Waseca Indep. Sch. Dist. No. 829, slip op. (W.C.C.A. Aug. 21, 2003).

 

On July 11, 2002, the employee filed a claim petition, later amended in January 2004, seeking temporary total disability benefits between May 20, 2002, through May 29, 2002, temporary partial disability benefits continuing from May 30, 2002, and permanent partial disability benefits.

 

Between August 2002 and March 2004, the employee used a bone stimulator device to treat her wrist injury.  The stimulator was a splint-like device and small electrical unit, and was prescribed by Dr. Kearney evidently to stimulate bone healing and growth.  She was advised to use that device for ten hours each day, and testified that she could not wear that device outside of her home because it could not be used near persons with pacemakers or defibrillating implants.  The employee testified that the use of this device limited the hours she could work at a second job.

 

In May 2003, the employee underwent a vocational evaluation with L. David Russell at the employer and insurer’s request.  Mr. Russell concluded that the employee’s earning capacity ranged from about $6.00 to $18.00 per hour, with an expectation for a re-entry wage of $8.82 per hour.  He concluded that the employee had the potential to replace her pre-injury earning in numerous clerical, customer service and production-related occupations, and that her current wage loss resulted primarily from the economic cut-backs at the school district and because she no longer worked at a second job.  Mr. Russell concluded that the records suggested that substantial rehabilitation services were provided to the employee but that those were discontinued when no openings were found within the Waseca area and the employee declined to expand her job search to the broader job market.  He concluded that the employee had not conducted a serious or diligent job search.

 

On April 13, 2004, the employee underwent an independent medical examination by Dr. William Call.  Dr. Call assigned work restrictions including no lifting over 15 pounds with the left arm, and recommended that the employee wear a light wrist splint on the left side except while driving, and that she work in a safe environment where she would not be assaulted.  Dr. Call concluded that, from a medical standpoint, “there is no reason she couldn’t be working a similar number of hours to those that she was working at the time of her injury provided that she abides by appropriate work restrictions.”  In a report dated June 1, 2004, Dr. Kearney outlined work restrictions, including no lifting over 30 pounds and no strenuous repetitive activities with the left arm.

 

In June 2004, the employee underwent a vocational evaluation with Frank Samlaska, who opined that the employee had not been provided substantial rehabilitation services.  He expressed his opinion that rehabilitation services should have continued and also that services should not have been discontinued on the basis of the employee’s preference to not seek employment outside of Waseca.  Mr. Samlaska concluded that the employee’s restrictions prohibited her from light clerical or assembly jobs that she had earlier performed.  He commented that although an employee typically is required to conduct a job search within 50 miles of home, a job placement plan and agreement also should reflect “the reality of the employee’s ability to engage in job seeking . . . . in the current labor/job market.”  He agreed with Mr. Russell’s assessment that the employee’s wage loss primarily resulted from the employer’s economic cutbacks, but concluded “[t]he fact that she no longer works a second job is more of a reflection of her disability and her inability to find part-time employment which is compatible to her work schedule, restrictions and [which] provides earnings which she previously sustained.”  He testified that, in his opinion, the employee’s current “earnings, as far as her abilities are right now, are the best that she can do without further assistance.”  Mr. Samlaska recommended continued rehabilitation assistance, through the Department of Labor and Industry’s Worker’s Compensation Unit, if needed.

 

A hearing was held on June 9, 2004, to address the employee’s claim petition.  In his findings and order served and filed on July 15, 2004, the compensation judge concluded that the employee was totally unable to work between her surgery of May 20, 2002, and May 29, 2002, and awarded temporary total disability benefits for that period of time.  He also determined that the employee had sustained a combined total of 17.97% permanent partial disability of the whole body based on her carpal instability, loss of function and limited range of motion in her left wrist.  The employer did not appeal from the awards of temporary total disability and permanent partial disability benefits.  The compensation judge also awarded temporary partial disability benefits from May 30, 2002, and continuing.  The employer and insurer appeal the award of temporary partial disability benefits.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether “the 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.  Substantial evidence supports the findings if, in the context of the entire record, "they 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, “unless 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

 

The compensation judge awarded temporary partial disability benefits continuing from May 30, 2002.  He found that

 

From May 30, 2002, through the date of hearing, the employee has been partially disabled as a result of the work injury.  She has been able to work subject to physical restrictions, but she has not been able to earn as much as she did prior to the work injury.  Her reduced earning capacity is directly related to the work injury.  She is entitled to temporary partial disability benefits, based on the earnings reflected in Exhibit E.

 

(Finding No. 4.)  The employer and insurer appeal, arguing that the employee is not entitled to payment of temporary partial disability benefits, since her current wages do not accurately reflect her earning capacity, and that by not looking for work outside of Waseca, Minnesota, the employee did not make a diligent job search and did not cooperate with rehabilitation assistance.

 

The employee worked 49 hours per week at the time of her injury, working nine hours each week as a home health aide.  After her injury, the employee was unable to continue working as a home health aide, but once her hours were reduced at school to 33.75 per week, she augmented that job by working an additional two hours per week at the Kids Academy.  The employer and insurer concede that the employee’s injury-related restrictions preclude her from returning to her previous part-time job as a home health aide.  However, they argue on appeal that the employee’s loss of wages result primarily from her reduced hours at school, and not from her work injury, and that the employee should have conducted an additional job search to mitigate her wage loss. 

 

To demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability.  See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988).

 

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.  Nolan v. Sidal Realty, 53 W.C.D. 388, 394 (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.  Id.  In deciding this issue, the compensation judge may consider any relevant evidence on the issue, including the nature and extent of the employee’s job search.  Stauty v. Luigino’s, Inc., 52 W.C.D. 119 (W.C.C.A. 1994).  As this court stated in Nolan,

 

. . . a reasonable and diligent job search in such a case is not a legal prerequisite to an award of temporary partial disability benefits but is evidence which the compensation judge may consider in determining whether the employee’s wage loss is causally related to the work injury.  Johnson v. Axel Ohman, 48 W.C.D. 198 (W.C.C.A. 1992), summarily aff’d (Minn. March 2, 1993).  Other relevant evidence may include testimony about the relevant labor market, the nature of the employee’s disability and the employee’s age, education, skills, and experience.  See Jerabeck, 225 N.W.2d 377, 29 W.C.D. 621.  A compensation judge may also consider such factors as the number of hours the employee worked during a pay period, the salary or hourly wage earned, the reason the employee worked less than full-time, the number of hours available with the employer, and the size of the wage loss.

 

Nolan, 53 W.C.D. at 394 (footnote omitted).

 

The reasonableness and diligence of an employee’s job search must be evaluated by reviewing all circumstances surrounding that search.  Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987).  In addition, A[t]he reasonableness and diligence of the employee's work search is viewed within the scope of assistance provided by the employer and insurer."  Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (citation omitted), summarily aff'd (Minn. Nov. 27, 1985); see also Taylor v. George A. Hormel & Co., 42 W.C.D. 633, 639 (W.C.C.A. 1989). In this case, the employee eventually was able to return to work for the employer for 35.75 hours per week during the school year.  Her work injury prevents her from returning to her previous second job as a home health aide and her previous summer job in a factory.  While the employee’s job search has been limited since May 2002, the employee testified that she remains in contact with the employer concerning additional work hours, that she remains in contact with Johnson Components, her previous factory employer, and that she has found no available jobs that would fit with her other work hours.

 

In his memorandum, the compensation judge concluded that the employee had cooperated with rehabilitation assistance, and that although her hours with the employer had been cut due to budget constraints, her disability resulting from her work injury precluded her from returning to her second job as a home health aide and her summer job that she previously performed to augment her school wages.  The compensation judge addressed the employee’s hesitation to drive out of town for a part-time job, and the economic viability of such a part-time job.  He stated that

 

Considering all of the facts and circumstances, the court finds that the employee’s reduced earnings are causally related to the work injury and that she is entitled to temporary partial disability benefits.  She is working almost 36 hours per week during the school year, which is almost full time.  She has a significant disability as a result of the work injury, which prevents her from doing many things with her left hand.  She does not like to drive and did not drive a long distance to work before the work injury.  Nevertheless, she is willing to drive if it would make economic sense.  It is difficult, however, to justify the time and expense of a long drive for only 2-3 hours or work at a likely wage of about $7 per hour.

 

(Memo., p. 4.)

 

It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  The employee’s vocational expert testified that substantial rehabilitation efforts were not provided to the employee and that rehabilitation assistance should have continued to seek jobs in the Waseca area.  The employer’s vocational expert opined that substantial rehabilitation services had been provided to the employee but that the employee had not made a diligent job search and had self-limited her job market.  In view of the record as a whole, the compensation judge could reasonably rely upon the employee’s vocational expert’s opinion over that of the employer and insurer’s vocational expert.

 

In view of the entire record, we conclude that substantial evidence, including expert vocational opinion and testimony, medical evidence, and the testimony of the employee, supports the compensation judge’s finding that the employee’s wage loss since May 30, 2002, was causally related to the employee’s work injury.  Accordingly,  we affirm the compensation judge’s award of temporary partial disability benefits.