PAUL J. LARSON, Employee, v. MARK J. TRAUT WELLS, INC., and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 4, 2005

 

No. WC04-337

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION.  While expert medical opinion is relevant and may be determinative, it is not the only evidence a compensation judge may consider.  On the facts of this case, the compensation judge properly considered and relied upon the employee=s testimony regarding the severity of his pain and symptoms and the limitations the personal injury placed on his ability to work in finding the employee temporarily totally disabled in June and July 2003.

 

EVIDENCE - ADMISSIBILITY.  Where the compensation judge found credible the employee=s testimony regarding his work and earnings from August through October 2003, the admission of a handwritten note offered to corroborate the employee=s testimony was not prejudicial and does not provide a basis for reversal of the compensation judge=s award of temporary partial disability benefits.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s determination that the employee was temporarily and partial disabled from August 1 through October 20, 2003, and his award of wage loss benefits for that period.

 

Affirmed.

 

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

Compensation Judge:  Ronald E. Erickson

 

Attorneys:  Michelle Barone Osterbauer and Joseph J. Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Respondent.  Steven Scharfenberg, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s findings that the employee was medically unable to work from May 31 through July 31, 2003, and temporarily and partially disabled from August 1 through October 20, 2003, and his award to the employee of wage loss benefits.  We affirm.

 

BACKGROUND

 

Paul J. Larson, the employee, sustained a crush injury to his left foot on November 1, 2002, while working for Mark J. Traut Wells, Inc., the employer, located in Waite Park, Minnesota.  The employee=s duties consisted of traveling to different cities and removing and installing pumps for city water wells.  The employee then earned a weekly wage of $629.28.  The employer and its insurer admitted liability for the employee=s personal injury.

 

The employee=s injury was treated at Itasca Medical Center in Grand Rapids, Minnesota.  Dr. Thomas Lorenz reported the employee sustained a nine-centimeter cut at the dorsum of the foot on the medial side, a twelve-centimeter laceration on the sole of the foot and a 1.5-centimeter laceration at the base of the fourth toe.  The cuts did not extend to the bone.  An x-ray of the left foot was normal except for a small chip or avulsion fracture of the distal fourth toe.  Dr. Lorenz sutured the lacerations and prescribed antibiotics.  On November 4, 2002, the employee saw Dr. Basil LeBlanc at the St. Cloud Medical Group for follow-up of his left foot injury.  The doctor restricted the employee to a sit-down job for a maximum of four hours per day, and referred the employee for physical therapy.  In November, Dr. LeBlanc prescribed a Cam walker.  The sutures were removed from the employee=s left foot on December 2, 2002.  Physical therapy was continued, and the employee=s hours were increased to eight hours per day at a sit-down job.  On December 9, 2002, Dr. LeBlanc released the employee to work eight hours per day in alternate sitting and standing positions.  On January 13, 2003, Dr. LeBlanc noted the wound on the bottom of the employee=s foot was finally healed.  The doctor restricted the employee to 40 pounds of lifting with no trench-type work.

 

The employee saw Dr. Kevin Holton at St. Cloud Orthopedic Associates on February 25, 2003, on referral from Dr. LeBlanc.  The doctor diagnosed a possible tendon rupture extensor hallucis longus and possible short extensor to the hallux on the left, with possible neuroma at the left forefoot.  Dr. Holton ordered an MRI scan, continued the employee=s work restrictions and prescribed a new Cam walker.  The scan showed tendinopathy of the flexor hallucis longus tendon with no rupture and the doctor then diagnosed post-traumatic tendinosis and neuritis of the left foot.  On June 4, 2003, Dr. Holton diagnosed post-traumatic neuritis with possible entrapment of the medial plantar nerve on the left.  The doctor injected the employee=s left foot with Depo-Medrol and Marcaine and released the employee to work on a regular basis wearing tennis shoes, with fifteen minutes of rest per hour for the next two weeks and no restrictions thereafter.

 

Following his personal injury, the employee continued to work for the employer until May 30, 2003.  On that date, the employee was given a week off without pay and did not thereafter return to work with the employer.  On or about June 15, 2003, the employee moved from St. Cloud to Milan, Minnesota, a town of approximately 300 people in western Minnesota.  The employee lived with his parents in Milan for two months, residing in Milan during the week and returning to St. Cloud on the weekends.  While living with his parents, the employee testified he applied for work at Delde Foods, Vars and Westcon but did not obtain employment.  The employee performed some work for his father who made the June and July payments on the employee=s car loan.  From July through approximately October 20, 2003, the employee worked for Robbie Johnson in Sauk Rapids, Minnesota, and testified he was paid $180.00 to $200.00 a week, in cash.  After this job ended, the employee again worked for his father for three or four days on weekends.  The employee stated his father again made car payments for the employee.

 

On June 24, 2003, the employee had returned to see Dr. Holton with continued complaints of pain along the distribution of the medial plantar nerve near the site of the laceration.  The doctor offered the employee options for treatment including a repeat injection or a surgical decompression and exploration of the medial plantar nerve.  Dr. Holton released the employee to return to work, limiting him to fifteen minutes of standing per hour.  On August 7, 2003, Dr. Holton noted the employee had been compliant with his treatment and had no further recommendations other than a repeat steroid injection or surgery.

 

The employee was examined by Dr. John A. Steubs on October 6, 2003, at the request of the employer and insurer.  The employee complained of ongoing pain and sensitivity in his foot which increased and caused swelling when he walked.  The doctor opined the employee was suffering from either an entrapment neuropathy of the medial plantar nerve or a post-traumatic neuroma involving the same nerve or one of its branches which interfered with the employee=s ability to walk.  Dr. Steubs related this condition to the employee=s personal injury.  The doctor opined the employee was a candidate for a surgical decompression and exploration of the medial plantar nerve and opined the employee had not reached maximum medical improvement.  The doctor agreed the restrictions assigned by Dr. Holton of fifteen minutes of standing per hour were reasonable.  The employee returned to see Dr. Holton on October 8, 2003, and told the doctor he wanted to proceed with the surgery.

 

The employee filed a claim petition alleging entitlement to wage loss benefits.  At the hearing, the employee claimed temporary partial disability benefits from November 23, 2002, through October 20, 2003, and temporary total disability benefits from October 21, 2003, to the present and continuing.  In a Findings and Order filed December 19, 2003, the compensation judge denied the employee=s claim for temporary partial disability benefits through May 30, 2003.  The compensation judge found the employee was temporarily and totally disabled from working at his regular occupation from May 31, 2003, through the date of hearing and found any earnings during that period were not significant or earned on any sustained basis.  Accordingly, the compensation judge awarded temporary total disability benefits from May 31, 2003, through the date of hearing and continuing.  On appeal, this court vacated the findings and order of the compensation judge and remanded the case to the judge for further findings.  Larson v. Mark J. Traut Wells, Inc., slip op. (W.C.C.A. April 29, 2004).

 

In a findings and order on remand, the compensation judge found the employee was medically unable to work from May 31 through July 31, 2003, and awarded temporary total disability benefits.  The compensation judge found the employee was temporarily and partially disabled from August 1 through October 20, 2003, and had an earning capacity of $200.00 per week and awarded wage loss benefits.  The employer and insurer again appeal.

 

DECISION

 

Temporary Total Disability

 

The appellants contend the compensation judge=s award of temporary total disability  benefits from May 31 to July 31, 2003, is unsupported by substantial evidence.  They point out that Dr. LeBlanc released the employee to return to work subject to restrictions on January 13, 2003.  On June 4 and June 24, 2003, Dr. Holton examined the employee and again stated he could work, subject to restrictions.  When the employee returned to see Dr. Holton on August 7, 2003, the restrictions were unchanged.  Accordingly, the appellants contend, there is no evidentiary support for the compensation judge=s finding that the employee was medically disabled.  To prove entitlement to temporary total disability benefits, the employee must show that work he is capable of doing is unavailable which is shown by a diligent job search.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  Since the employee failed to perform a job search during this period, the appellants argue, the compensation judge=s award of benefits is legally erroneous and must be reversed.  We disagree.

 

On June 4, 2003, Dr. Holton released the employee to work on a regular basis wearing tennis shoes with 15 minutes of rest per hour.  On June 24, 2003, Dr. Holton changed the restrictions to 15 minutes of standing per hour.  In June and July, the employee testified he was in substantial pain and if he stood on his left foot for any period of time it swelled and caused pain.  The employee also testified that at times he was unable to get a shoe on his injured foot.  The employee stated that while living with his parents he tried to help out, but when he did any work of any consequence, his foot swelled and he had to rest his foot for a day or two until the swelling went down.  He testified he felt unable to perform any job requiring standing or walking.  Based on this evidence, the compensation judge determined the employee was capable of only very limited standing or walking, his lifting was restricted to 40 pounds, and he could not do any digging or trench-type work.  The judge further concluded the employee was a laborer who was essentially limited to working on one leg only.

 

A determination of total disability is a legal, not a medical, decision.  Thus, while expert medical opinion is relevant and often determinative, it is not the only evidence a compensation judge may consider.  In deciding this case, the compensation judge could also consider the employee=s testimony regarding the severity of his pain and symptoms, and the limitations the personal injury placed on his ability to work.  Brening v. Roto-Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975).  The employee sustained a serious injury, was assigned significant work restrictions, and testified to continuing and limiting pain and swelling during June and July 2003.  Given this evidence, we can not conclude the compensation judge=s decision was clearly erroneous or unsupported by substantial evidence.  The award of temporary total disability benefits is, accordingly, affirmed.

 

Evidentiary Ruling

 

At the first hearing, the employee offered into evidence a handwritten note from Robbie Johnson as support for his temporary partial disability claim.  The compensation judge sustained the appellants= objections to the exhibit and it was not received into evidence.  At the second hearing, the compensation judge allowed the exhibit, Petitioner Exhibit 10, into evidence.  On appeal, the appellants contend Exhibit 10 lacked foundation and the compensation judge erred in admitting the exhibit.

 

Minn. Stat. ' 176.411, subd. 1, states,

 

        Conduct of hearings and investigations.  Except as otherwise provided by this chapter, when a compensation judge makes an investigation or conducts a hearing, the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical or formal rules of pleading or procedure.  Hearsay evidence which is reliable is admissible.  The investigation or hearing shall be conducted in a manner to ascertain the substantial rights of the parties.

     Findings of fact shall be based upon relevant and material evidence only, as presented by competent witnesses, and shall comport with section 176.021.

 

This statute was intended to simplify and make flexible the procedure governing workers= compensation hearings.  Chilstrom v. Trojan Seed Co., 242 Minn. 471, 65 N.W.2d 888, 18 W.C.D. 137 (1954).  Generally, a compensation judge has broad discretion regarding the admissibility of evidence in a workers= compensation hearing.  Minn. Stat. ' 176.411, subd. 1; Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 46 W.C.D. 198 (Minn. 1992); Ziehl v. Vreeman Constr. Co., slip op. (W.C.C.A. Oct. 15, 1991) (evidentiary rulings are generally within the sound discretion of the compensation judge).  To warrant reversal, the compensation judge=s ruling on the admissibility of evidence must be prejudicial as well as erroneous.  See McGuire v. Merillat Indus., Inc., slip op. (W.C.C.A. July 27, 1993); see also Elling v. Cub Foods, slip op. (W.C.C.A. Feb. 24, 1994); Brecht v. General Mills, slip op. (W.C.C.A. Jan. 28, 1994).

 

The employee testified he worked for Robbie Johnson and was paid in cash.  The  compensation judge found this testimony credible.  Exhibit 10 was offered to corroborate the employee=s testimony.  While the exhibit was hearsay and lacked foundation, we cannot conclude its admission was prejudicial as well as erroneous.  Accordingly, we will not reverse the compensation judge=s decision.

 

Temporary Partial Disability

 

The employee testified that from August 1 through October 20, 2003, he worked part time for a friend, Robbie Johnson, delivering parts and preparing bids.  He testified he worked approximately two days a week or whenever he was needed and was paid $180.00 to $200.00 per week, in cash.  The compensation judge awarded temporary partial disability benefits based upon an earning capacity of $200.00 per week.  The appellants contend this award is unsupported by substantial evidence and is legally erroneous.  They assert the employee failed to perform a diligent job search during this period of part-time employment and failed to prove there was not other full-time work available within his restrictions.  Accordingly, the appellants contend, the employee did not establish a causal relationship between his work injury and wage loss, and the judge=s award of temporary partial disability benefits must be reversed.

 

Where a disabled employee is released to return to work on a full-time basis but works only part-time, 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, 42 W.C.D. 626 (Minn. 1990).  Whether the wage loss during part-time employment is the result of the personal injury is generally a question of fact.  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).  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).

 

The employee testified that while working for Mr. Johnson he looked for jobs in the St. Cloud newspaper and on the internet.  While performing bidding work, the employee stated if he saw an employment opportunity, he would stop in and check it out.  The employee, however, kept no records of his job search.  He also testified that during this period of time he continued to have problems with pain and swelling in his foot if he was on it too much.  The employee=s job for Robbie Johnson was light work and primarily involved driving.  While the compensation judge certainly could have reached a different decision, we can not conclude the compensation judge=s award of temporary partial disability benefits was unsupported by substantial evidence.  Accordingly, the award must be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).