DAVID A. JOHNSON, Employee, v. LARAWAY ROOFING, and FEDERATED MUT. GROUP, Employer-Insurer, and WILSON REFRIGERATED EXPRESS, and GREAT WEST CAS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 22, 2005

 

No. WC05-109

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence of record, including medical evidence and witness testimony, supports the compensation judge=s finding that the employee=s work injury on January 22, 1997, but not his injury on September 19, 1985, represents a substantial contributing factor in his current low back condition.

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.  The employee=s earnings were too insubstantial to establish entitlement to temporary partial benefits; compensation judge=s award of temporary partial benefits is reversed.

 

Affirmed in part and reversed in part.

 

Determined By: Rykken, J., Johnson, C.J., and Pederson, J.

Compensation Judge: Peggy A. Brenden

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad Minneapolis, MN, for the Respondent.  David O. Nirenstein and Teresa R. Flack, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents Laraway Roofing/Federated.  Richard W. Schmidt, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

Wilson Refrigerated Express and its insurer, Great West Casualty Company, appeal from the compensation judge=s finding that the employee=s work injury on January 22, 1997, but not his injury on September 19, 1985, represents a substantial contributing factor in his current low back condition.  They also appeal from the compensation judge=s award of temporary partial disability benefits based upon the employee=s wages earned in August, September and October 2004.  We affirm in part and reverse in part.

 

BACKGROUND

 

This claim arises from two work-related injuries the employee sustained in 1985 and 1997, and relates to two issues: whether liability should be apportioned between the two injuries for the employee=s low back condition and related disability and need for medical treatment, and whether the employee is entitled to temporary partial disability benefits commencing August 1, 2004.

 

Mr. David A. Johnson, the employee, sustained an injury to his low back on September 19, 1985.  On that date, he was employed by Laraway Roofing, earning a weekly wage of $188.00.  The employee injured his low back while loading either rubber or tar paper rolls into the back of truck; he testified that at the time of the incident, he felt three Apops@ in his back.  The employee noticed low back symptoms following that incident and consulted a chiropractor, Dr. Randall Verschaetse, reporting that he Apinched something in his lower back.@  Dr. Verschaetse treated the employee in September and October 1985, and restricted him from work until October 3.  On October 24, 1985, the employee also sought treatment from Dr. L.R. Ringhofer, at the New Ulm Medical Center.  At that time, the employee apparently remained off work, but advised the doctor that he was starting a 4-month course in truck driving on November 4.  Dr. Ringhofer last saw the employee on October 31, 1985, at which time he approved a return to work.

 

Laraway Roofing (Laraway) and Federated Mutual Insurance Group (Federated) accepted liability for the employee=s low back injury, paid him a total of 3.6 weeks of temporary total disability benefits, and paid nominal medical benefits.  The employee did not return to work for Laraway Roofing following this incident, but instead attended a truck driving school in White Bear Lake, Minnesota, for approximately four months, and worked for a variety of trucking companies during the next several years.  Other than his initial time loss immediately following the 1985 injury, he missed no time from work as a result of his low back condition between 1985 and 2002.  He testified that although he noted pain in his low back during the years following his 1985 back injury, his symptoms did not affect his ability to work.  He also testified that he avoided lifting while driving truck, even though in September 1987, the employee underwent surgical repair for an incarcerated ventral epigastric hernia, diagnosed after he experienced pain as a result of lifting pallets at work.

 

On January 22, 1997, while employed by Wilson Refrigerated Express (Wilson), the employee injured his right knee when he slipped on ice in a parking lot after he had parked his trailer and truck.  At the time of his 1997 injury, the employee earned a weekly wage of $825.00.   Wilson and its insurer, Great West Casualty Company (Great West), accepted liability for the employee=s right knee injury, and paid various workers= compensation benefits to and on behalf of the employee.  The employee remained off work, sought medical care from Dr. Mario DeSouza at the New Ulm Medical Center, and underwent arthroscopic knee surgery on March 24, 1997, for correction of a flap tear of the articular cartilage.  By May 1997, following a course of physical therapy, the employee was released to return to work within work restrictions, and continued working for Wilson until 1999, although he testified that he has had ongoing pain in his right knee since the injury.

 

In August 1997, the employee sought medical treatment for neck and arm symptoms, evidently resulting from an injury he sustained while driving truck for Wilson.^[1]  He underwent physical therapy between August 1997 and January 1998, for his neck, right upper back and right upper trapezius muscular strain, and ultimately was diagnosed with a herniated disc in his cervical spine.  In January 1998, he underwent a laminectomy in his cervical spine.  In August 1998, the employee consulted for his right knee symptoms with Dr. DeSouza, who assigned work restrictions related to his right knee. 

 

The employee testified that he did not return to work for Wilson after his neck injury because his neck condition precluded him from shifting and lifting items with his right arm. He  worked for Kato Tools between approximately May 1999 and July 2001, working in sales and customer service.   In July 2001, he began working for Farmers Elevator in Sleepy Eye, driving truck to haul grain.  On July 10, 2001, the employee consulted with Dr. Jack Bert, complaining of right knee pain with any significant physical activity.  Dr. Bert confirmed that a 1999 MRI scan showed a horizontal tear of the medial meniscus, and recommended that the employee undergo further arthroscopic surgery.^[2]

 

In March 2002, the employee consulted Dr. James Eiselt at the New Ulm Medical Center for low back pain, reporting that he may have aggravated his back getting in and out of his truck.  At Dr. Eiselt=s recommendation, the employee underwent physical therapy and pelvic traction in May and June 2002.  His physical therapy notes state the employee reported experiencing low back problems since his 1985 injury.

 

In October 2002, the employee sustained a work-related injury to his left knee while employed by Farmers Elevator; that injury is not at issue here.  He underwent arthroscopic surgery on his left knee in January 2003, performed by Dr. Jeffrey Garske.  By early March 2003 he was released to return to work on a half-time basis, and by mid-March to full-duty work.  The employee, however, evidently never returned to work for Farmers Elevator as he was laid off from that position.^[3]  Although the employee testified that he noted improvement following his left knee surgery, he started noticing more problems with his right knee after that left knee surgery.  In mid-2003, the employee again consulted Dr. Bert for his right knee condition, and underwent surgery to his right knee on June 20, 2003, in the nature of an arthroscopic partial medial meniscectomy.  Following that surgery, the employee noted ongoing pain and swelling in his right knee.  He testified that his right knee condition has been more problematic than his left knee condition.

 

As of July 22, 2003, Dr. Bert released the employee to return to work within restrictions, and by August 15, 2003, he released the employee to unrestricted work.  However, on August 19, 2003, the employee reported to Dr. Bert that he was experiencing low back pain and felt unable to return to work.  The employee testified that his back pain had resulted from Awalking off kiltered;@ the employee testified he had altered his walking pattern, such that he now limps due to the pain in his right knee.  Dr. Bert diagnosed synovitis, an inflammation of the joint lining, and restricted the employee from work in order to attempt physical therapy and to try to reduce the inflammation caused by the synovitis. In his chart note of September 23, 2003, Dr. Bert noted that the employee was doing well with his meniscectomy, but that he had some spasm in his low back.  In October 2003, Dr. Bert recommended an MRI scan of the employee=s lumbar spine.  At the time of his deposition in February 2004, Dr. Bert testified that the employee remained restricted from work due to his right knee condition.

 

On January 29, 2004, the employee was reexamined by Dr. Robert Hartman, at the request of Wilson and Great West, who first examined the employee in April 2002.^[4]  Dr. Hartman concluded that the employee=s ongoing right knee pain was related to his 1997 articular cartilage injury to the medial femoral condyle of his right knee.  He assigned permanent restrictions related to that injury, including limited running, no repetitious or continuous running or jumping, and no repetitious or continuous lifting greater than 50 pounds.  Dr. Hartman concluded that the employee did not suffer an injury to his lumbar spine as a consequence of his 1997 right knee injury or related surgery.

 

In March 2004, the employee underwent a brief course of physical therapy, after a flare-up of low back pain.  An MRI of his lumbar spine, conducted on April 26, 2004, showed disc bulging at three vertebral levels, L3-4, L4-5 and L5-S1, and mild to moderate left foraminal stenosis at the L4-5 level.  Dr. Bert concluded that the employee=s current complaints of back pain and findings on MRI were causally related to his 1985 low back injury.  He recommended epidural steroidal injections and, by April 27, 2004, restricted the employee from work indefinitely.

 

In a report dated May 20, 2004, Dr. Bert concluded that the employee had reached maximum medical improvement from his January 22, 1997, right knee injury, and that he had sustained a 2% permanent partial disability to the whole body, relative to his right knee condition.

 

On July 1, 2004, Dr. Gary Wyard conducted an independent medical examination of the employee at the request of Laraway Roofing and Federated.  Dr. Wyard diagnosed degenerative disease of the lumbosacral spine consistent with natural causes and the employee=s weight.  He concluded that the employee=s September 19, 1985, low back injury was temporary in nature, three months in duration, citing to the lack of ongoing care or treatment until 2002 and the employee=s ability to perform his job as a truck driver Aover the years without intermission due to back pain.@  Dr. Wyard concluded that the employee=s current low back complaints were unrelated to the 1985 injury and instead had resulted from his right knee injury, due to his limping related to his knee pain.  Dr. Wyard concluded that any medical treatment for the employee=s low back after 1997 was causally related to his 1997 work injury, and concluded that the employee had reached maximum medical improvement from all of his injuries.  Dr. Wyard recommended work restrictions for both the employee=s right knee and his low back, including no repetitive stooping, squatting, bending, twisting, lifting, pushing or pulling, no lifting over 50 pounds, and the ability to have flexibility in sitting and standing.  Dr. Wyard concluded that the employee needed no additional medical care or treatment for his low back, but recommended ongoing care and treatment for his right knee, as he was deconditioned and had significant functional overlay related to the right knee, including guarding and apprehension out of proportion to the employee=s objective findings.

 

The employee remained off work following his left knee injury in October 2002, until August 1, 2004, when he began working as a paper delivery person for the New Ulm Journal.  He initially worked on one route, replacing his son on that route, and later acquired a second route.  According to the employee=s testimony, in order to deliver papers, he drove to homes, and either walked to mailboxes or drove up to mailboxes to drop off the newspapers.  His route delivery duties required approximately one to one and a half hours each day, seven days per week.  In August and September 2004, he worked on one route only, earning $87.99 and $94.48 per month, respectively.  In October 2004, after acquiring a second route, he earned $210.30 that month.

 

The employee testified that his symptoms in both knees have increased because of his job dutiesBclimbing in and out of his vehicle and walking up to homes while delivering newspapers.  He also testified that as a result of his ongoing knee problems and current work restrictions, he has been unable to find other employment.

 

On October 15, 2004, David Berdahl conducted an independent vocational interview and evaluation, at the joint request of both employers and insurers.  Following his interview and testing of the employee, and his review of the employee=s rehabilitation and medical records, Mr. Berdahl issued a report dated November 22, 2004.  Mr. Berdahl concluded, based upon the various restrictions assigned by the employee=s doctors, that the employee would be able to work within sedentary to light-duty work and concluded that he demonstrated, through his vocational testing and his work history, Acognitive and academic skill levels consistent with demands of a significant portion of the jobs he has access to within his geographic region.@  Mr. Berdahl concluded that the employee had clearly demonstrated his ability to secure employment such as his jobs in freight and transportation, that his computer capabilities would be an asset to him in any job situation, and that the employee was a friendly and excellent communicator.  He recommended that the employee seek non-driving jobs in operations within the freight and transportation industry which could provide wages ranging from $11.80 per hour up to over $17.00 per hour.  Mr. Berdahl also outlined various jobs available to the employee in customer service, retail within limitations, hospitality, industry and automotive service writing.  He concluded that the employee=s current earning capacity, viewed from the perspective of average median wages, would be approximately $11.00 per hour, or even more, given time and experience in a job situation.

 

Mr. Berdahl expressed concerns about the employee=s past job search, referring to the job search as being modest, at best.  The employee searched for jobs by looking in the want ads, visiting the local work force office and relying on word-of-mouth communications.  He did not list any specific employers to whom he had applied or with whom he had interviewed.  Mr. Berdahl concluded that given the employee=s excellent communication skills, Ahe is capable of securing employment on his own behalf, in a variety of areas consistent with his physical needs and demonstrative capabilities.  In fact, his communication skills will be one of his strongest attributes in seeking alternative and less physically demanding employment than jobs such as truck driving.@  He concluded that the employee=s current earnings did not represent suitable, gainful employment, stating that his Acurrent earnings are a reflection of no serious job search effort to date,@ and that his current job Awas only a very part time position at best, offering sporadic and minimal earnings.  The earnings are not consistent with his earnings potential or occupational potential.@

 

Procedural Background

 

In January 2002, the employee filed a claim petition against Wilson and Great West, seeking approval for right knee surgery recommended by Dr. Jack Bert.  Wilson and its insurer denied the requested surgery, contending that such surgery was neither reasonable nor necessary to cure or relieve the employee from the effects of his January 1997 injury.  Following a hearing held in March 2003, a compensation judge determined that the surgery recommended by Dr. Bert was reasonable, necessary, and causally related to the employee=s 1997 work injury, and ordered Wilson and its insurer to pay for the medical expenses associated with that surgery.  No appeal was taken from that decision, and the employee underwent arthroscopic surgery on June 20, 2003.

 

On October 28, 2003, Wilson and its insurer, who had been paying temporary total disability benefits since the employee=s surgery in June 2003,^[5] filed a Notice of Intention to Discontinue workers= compensation benefits (NOID), alleging that the employee=s temporary total disability benefits should be discontinued based upon the postoperative findings and Dr. Bert=s release of the employee to unrestricted full-duty work.  In their NOID, Wilson and its insurer contended that they had paid temporary total disability benefits under a mistake of fact or law, alleging that the employee was undergoing physical therapy for his left knee condition related to his October 2002 work injury and unrelated to his 1997 injury incurred while working for Wilson.  Following an administrative conference held to address the NOID, a compensation judge allowed Wilson and its insurer to discontinue benefits, and the employee filed an Objection to Discontinuance.  After a hearing de novo held before a compensation judge in February 2004, the compensation judge found that the employee=s right knee injury continued to be a substantial contributing cause of his inability to work and ordered Wilson to reinstate temporary total disability benefits.

 

In the meantime, in February 2004, the employee filed a claim petition against Laraway Roofing and its insurer, seeking payment for expenses related to an MRI scan of his low back.  Laraway and its insurer agreed to pay those expenses under a temporary order, and later filed a motion for joinder, seeking to join Wilson and Great West, alleging that the 1997 right knee injury was a substantial contributing factor to the employee=s low back condition.

 

In May 2004, Wilson and Great West filed another NOID, alleging that the employee remained off work due to reasons unrelated to his right knee injury.  Following an administrative conference, a compensation judge denied the request to discontinue temporary total disability benefits; Wilson and its insurer later filed a petition to discontinue benefits, alleging that the employee=s 1997 right knee injury, during their period of coverage, did not substantially contribute to his ongoing low back problems.  They also filed a petition for joinder, contribution and/or reimbursement against Laraway Roofing and Federated, alleging entitlement to contribution and/or reimbursement from the employer and insurer based on the employee=s 1985 injury.

 

All claims were consolidated for a hearing, held on December 8, 2004.  The pleadings addressed at that hearing included the following:

 

$                   Employee=s Claim Petition, filed February 11, 2004.

$                   Petition to Discontinue, filed September 9, 2004, by Wilson/Great West.

$                   Petition for Contribution/Reimbursement (by Wilson/Great West), filed September 9, 2004.

$                   Petition for Contribution/Reimbursement (by Laraway/Federated), filed September 23, 2004.

 

At the hearing, the parties entered into various stipulations concerning the employee=s entitlement to benefits.  Those stipulations included, in part, the following:

 

1.         The employee=s September 19, 1985, work injury at Laraway and/or his January 22, 1997, injury at Wilson is a substantial contributing factor(s) in the employee=s current low back condition.

 

2.         The employee=s January 22, 1997, right knee injury and/or September 19, 1985, low back injury have been substantial contributing factors in the employee=s temporary total disability from September 19, 2003, to on or about August 1, 2004.

 

3.         The employer/insurer(s) found liable for the employee=s current disability shall provide the employee reasonable and necessary rehabilitation services.

 

4.         The employee reached maximum medical improvement (MMI) relative to his right knee with service of a MMI report on May 20, 2004.

 

In her findings and order served and filed on December 29, 2004, the compensation judge found that the employee=s September 1985 low back injury at Laraway Roofing was not a substantial contributing factor to his current low back condition.  She found that the employee=s 1997 work injury at Wilson Refrigerated represented a substantial contributing factor to his low back condition, as the employee=s more recent low back problems had resulted from his altered gait related to right knee pain.  The compensation judge also found that the employee=s earnings since August 2004, from his paper delivery job, accurately reflected his earning capacity, and ordered Wilson and Great West to pay temporary partial disability benefits based on those wages. 

 

Wilson and Great West appeal from the judge=s findings denying apportionment of liability and from her 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 (2004).  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

 

Liability for Low Back Condition

 

Wilson/Great West appeal from the compensation judge=s finding that the employee=s right knee injury in 1997 represents a substantial contributing cause of his current low back condition and disability, and her corresponding finding of no causal relationship between the employee=s low back injury in 1985 and his current low back condition.  They contend that the compensation judge=s findings are not supported by substantial evidence, and cite to the employee=s testimony that he was restricted from heavy lifting and excessive bending following his 1985 low back injury and the employee=s understanding that he was unable to continue working at hard manual labor following that injury.  They also point to the employee=s medical records, including those in 2002 when he reported to Dr. Eiselt and his physical therapist that his low back symptoms were related to his 1985 injury, and including references in his 2003 and 2004 records to a history of his Aold back injury@ and an injury A20 some years ago [when he] popped 3-4 vertibra [sic] in lower back.@  In addition, Wilson/Great West contend that the compensation judge should have accepted the opinions of Dr. Bert and Dr. Hartman.  In letters dated January 22 and May 11, 2004, Dr. Bert outlined his opinion that the employee=s current complaints of back pain were Adirectly causally related to his 1985 injury.@  Wilson/Great West reiterate that when Dr. Bert reviewed the results of the 2004 MRI scan, which confirmed three bulging discs in the employee=s lumbar spine, he related those findings to the employee=s earlier injury, which is also consistent with the employee=s testimony that he heard or felt pops in his low back at the time of his 1985 injury.  Dr. Hartman, who examined the employee in 2002 and 2004, also concluded that the employee did not sustain an injury to his lumbar spine as a consequence of his 1997 right knee injury or surgery.

 

In her memorandum, the compensation judge outlined the various bases for her opinion on causation of the employee=s low back condition, stating that she relied on the employee=s testimony, his medical records, and the expert medical opinion of Dr. Wyard.  She based her conclusion, that his 1985 work injury did not substantially contribute to the employee=s most recent low back problems, on the long period of time with no treatment for low back symptoms, his ability to perform at least some lifting at work between 1985 and 1997, and the lack of any mention of the September 1985 incident in an August 21, 1991, report issued after an ICC truck driving physical examination, even though that report itemized injuries recalled by the employee back to his childhood.  Nor was she persuaded that the employee heard Apops@ in his low back at the time of his 1985 injury.  The first such mention in the employee=s medical records is found almost twelve years following that injury, in an April 8, 1997, pain assessment form, completed by the employee when he commenced physical therapy; the employee wrote that he had Apopped three vertebrae in back.@ The compensation judge also discounted the employee=s testimony regarding the continuing effect the 1985 work injury had on his activities.  Although the employee testified his low back problems caused him to leave his roofing job and begin a course of study in truck driving, the compensation judge concluded that Athe employee=s low back problems were more likely coincidental with his decision to change careers rather than causative@ as a handwritten doctor=s note from October 24, 1985, states that the employee Ais starting a 4 month course in truck driving Nov. 4."  She concluded, in her memorandum, that A[t]he employee would have had to begun course investigation, financial planning and course registration well before the work injury occurred to be ready to begin course work by November 4^th.@  (Memo., p. 6.)

 

It is the trier of fact's responsibility to assess the credibility of a witness.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to make an evaluation of the credibility and probative value of the witness testimony.   Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D 948, 957 (Minn. 1988).  Further, our review of the employee=s medical records and the hearing transcript leads us to conclude that the compensation judge=s assessment of the employee=s testimony was not unreasonable.  The employee=s medical records between 1985 and 2003 contain limited references to his low back symptoms, and the employee=s testimony about how his altered gait resulting from his right knee condition aggravated his low back symptoms further supports the compensation judge=s conclusion concerning the causal relationship between the employee=s 1997 injury and his low back condition.

 

The record contains opposing medical opinions on the issue of whether the employee sustained an injury to his low back as a result of his 1997 work injury. The compensation adopted the opinion of Dr. Wyard.  A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-373 (Minn. 1985).  The compensation judge could reasonably conclude that the medical evidence, including the expert medical opinion of Dr. Wyard, demonstrated a causal relationship between the employee=s work injury in 1997 and his low back symptoms and related disability.  We therefore affirm the judge=s finding that the employee=s 1997 work injury was causally related to his current low back condition, and affirm her finding of no causal relationship between the employee=s 1985 work injury and his current low back condition.

 

Temporary Partial Disability Claim

 

The compensation judge concluded that the employee had been temporarily partially disabled from employment since August 1, 2004, that his earnings from August 1 through October 31, 2004, accurately measured his earning capacity, and, therefore, he was entitled to temporary partial disability benefits, based on his actual earnings, for Aas long as the employee=s disability shall warrant.@  Wilson/Great West allege that substantial evidence does not support the compensation judge=s findings that the employee=s part-time wages were representative of his earning capacity and that he is entitled to temporary partial disability benefits based on those wages.

 

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).  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).

 

In this case, the employee remained off work between his left knee injury in October 2002, and August 1, 2004, when he began delivering newspapers.  He earned $87.99 in August, $94.98 in September, and $210.30 in October 2004.  To be entitled to temporary partial disability benefits, an employee must be gainfully employed, that is, the employee must show something more than Asporadic employment resulting in an insubstantial income.@  See Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 134, 24 W.C.D. 290, 295 (1967); Hubbell v. Northwoods Panelboard, 45 W.C.D. 515 (W.C.C.A. 1991).  Wilson/Great West argue that the employee’s current position is not gainful employment and results in an insubstantial income.  When evaluating an employee’s claim for temporary partial disability benefits, a compensation judge may 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, the nature of the employee’s activities, the facts and circumstances surrounding the employment, and any restrictions on the employee=s work activities.  See Stevens v. S.T. Servs., slip op. (W.C.C.A. Nov. 14, 1991).

 

We acknowledge that A[w]hat constitutes sporadic employment resulting in an insubstantial income is a factual issue, the resolution of which depends not solely on the amount of income earned or the number of hours worked.  Hildebrandt v. City of St. Louis Park, slip op. (W.C.C.A. Sept. 13, 2004).  However, it is our function to determine whether the findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted, Minn. Stat. ' 176.421, subp. 1(3).  The question here is whether the record supports the compensation judge’s decision that the employee, who has received wages from delivering newspapers on a part-time basis, can be considered to be gainfully employed, such that he is entitled to temporary partial compensation. Based on a seven-day work week, at one to one and a half hours per day, the employee worked between approximately 7 to 10.5 hours each week.  The employee testified that he hopes to increase his work hours in order to augment his income.  However, according to the employee’s claim itemization submitted into evidence, he earned a limited weekly wage of $20.00 in August, $21.47 in September, and $50.07 in October 2004.  

 

In the present case, we conclude that the record does not support the compensation judge’s determination that the employee’s wages earned while delivering newspapers for three months, between August and October 2004, accurately reflected his earning capacity and that he was entitled to temporary partial disability benefits based on those wages.  In our judgment, the employee’s earnings from his paper routes were simply too insubstantial to establish entitlement to temporary partial disability benefits.   See Stack v. City of Blaine, slip op. (W.C.C.A. Mar. 31, 1992); Kosloske v. Harmon Glass Co., slip op. (W.C.C.A., July 13, 1991).  We therefore reverse the award of temporary partial disability benefits.

 

Wilson/Great West also argue that the employee’s actual earnings from his part-time employment did not accurately reflect his earning capacity because he did not conduct a diligent search for work that would provide him a higher weekly wage.  The compensation judge determined that, under the circumstances of this case, the employee had conducted a reasonable and diligent job search.  Whether or not his job search was diligent, that factor alone is not determinative of the employee’s entitlement to temporary partial disability benefits, even though it is a factor that a compensation judge may consider when determining whether an employee’s wage loss during part-time employment resulted from his personal injury.  Stauty v. Luigino’s, Inc., 52 W.C.D. 119 (W.C.C.A. 1994); see, e.g., Denardo v. Divine Redeemer Memorial Hosp., 450 N.W.2d 290, 293, 42 W.C.D. 626, 631-32 (Minn. 1990).  In view of our reversal on other grounds, we need not address the issue of the adequacy of the employee’s job search.