DEBORAH A. CUSTER, Employee, v. I.S.D. #2154, SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer/Appellant.

WORKERS’ COMPENSATION COURT OF APPEALS
MAY 2, 2006

No. WC05-278

HEADNOTES

TEMPORARY PARTIAL DISABILITY.  Under Morehouse v. Geo. A. Hormel & Company, 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981), an employee need not show that his or her injury was temporary rather than permanent in nature in order for the employee to be entitled to temporary partial disability benefits.

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.   Where the issue before the compensation judge was whether the employee was entitled to temporary partial disability benefits for a certain period of time, and at the hearing the employer argued that the employee was not restricted from working for a second employer at that time, the compensation judge did not err by correctly noting that the employer presented no evidence to the contrary regarding the availability of a position at the second employer in order to rebut the presumption that the employee’s post-injury wage represented her reduced earning capacity.

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s finding that the employee was permanently restricted from working for a second employer and was entitled to temporary partial disability benefits.

Affirmed.

Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold

Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent.  Kathleen M. Daly, Rider Bennett, Minneapolis, MN, for the Appellants.

 

OPINION

MIRIAM P. RYKKEN, Judge

The self-insured employer appeals the compensation judge’s award of temporary partial disability benefits from and after April 6, 2005.  We affirm.

BACKGROUND

On March 1, 2004, Deborah A. Custer, the employee, sustained an admitted low back injury when she slipped and fell while working full-time as a junior high school art teacher for Independent School District No. 2154, the self-insured employer.  At that time, the employee also worked at a second job on the evening shift for Fingerhut Corporation, in a sedentary job in the billing department which involved talking to customers on the telephone.  At the time of her work injury, the employee worked weekday evenings for Fingerhut, from approximately 4:00 p.m until 9:00 p.m, and also worked on Saturdays, working approximately 25 hours per week for Fingerhut.[1]

The employee initially consulted Dr. Mairaj Din, Virginia Clinic, who then referred her for an MRI scan and for a consultation with Dr. T. Scott Douglass, occupational medicine specialist.  The employee’s back pain symptoms worsened and she underwent an MRI on March 11, 2004, which indicated a right paracentral disc protrusion/herniation at L5-S1 displacing the right S1 nerve root as well as a broad disc bulge and central protrusion at L4-5.  The employee thereafter treated with Dr. Douglass who prescribed pain medications and physical therapy.  Both Dr. Din and Dr. Douglass restricted the employee from returning to work.  In April 2004, the employee underwent a lumbar epidural steroid injection which did not improve her symptoms and caused her significant discomfort.

The employee began working with QRC Carol Anderson in March 2004, with the initial goal of returning to work with her pre-injury employers.  On April 29, 2004, the employee returned to work for the employer with the accommodation of lying down on breaks and other restrictions on lifting, standing, sitting, twisting and bending.  Dr. Douglass advised that the employee needed to avoid repeated bending and twisting and working in awkward positions.  According to his chart note of April 26, 2004, he discussed with the employee and her QRC the possibility of the employee returning to her Fingerhut job, but did not release the employee to return to that job.  Dr. Douglass expressed concern that the Fingerhut job would involve too many work hours for the employee, and that it involved too static an activity as that job allowed little opportunity to stand, walk and change positions.

On June 2 and June 3, 2004, the employee attempted to perform her job at Fingerhut.  The employee was only able to work a few hours due to increased back pain from static sitting or standing.  The position requires the employee to wear a headset and use a computer, and is a fast-paced job that allows the employee to sit or stand, but does not allow walking around or leaving the workstation.  On June 4, 2004, Dr. Douglass took the employee off work from her job at Fingerhut.  Following an examination on June 21, 2004, Dr. Douglass advised that the employee was unable to continue to perform the Fingerhut work.  He stated as follows:

I think she is unable to continue to do the FingerHut work because of the static sitting and standing nature of the work, which I don’t think she can tolerate, but I believe she is able to tolerate lifting/carrying, pushing/pulling of 10 lb. on a very occasional, infrequent basis.  No repeated bending and twisting and working in awkward positions.  She needs to be able to sit and stand and walk and change positions frequently as needed.  She needs to be able to lay down 30-45 minutes every few hours through the day.

By November 24, 2004, Dr. Douglass indicated that the employee had reached maximum medical improvement on November 24, 2004, with a 10% permanent partial disability rating under Minn. R. 5223.0400, subp. 4(2), due to her low back condition.  Dr. Douglass opined that the employee had permanent restrictions of primarily sedentary duties with the ability to change positions of sitting, standing, and walking frequently.  Dr. Douglass also limited the employee to a maximum of seven hours of work per day, five days per week.  The employee’s rehabilitation services were then limited to medical management services.  A job search was not required since the employee’s hours were limited.

On March 11, 2005, the employee was examined by Dr. Paul Cederberg at the employer’s request.  Dr. Cederberg determined that the employee had sustained a low back injury with a 9% permanent partial disability rating under Minn. R. 5223.0390, subp. 4D, and that the employee could perform full-time work with restrictions of no lifting over 35 pounds, standing or sitting as tolerated, and avoiding repetitive bending and twisting of her low back.  He later concluded that the employee could perform the part-time job at Fingerhut within these restrictions.  He advised that, in his opinion, the employee could avoid the static sitting at her Fingerhut job by merely standing and stretching at her desk.

The employer has paid permanency benefits to the employee based on the rating assigned by Dr. Cederberg.  Based upon Dr. Cederberg’s opinion, however, the employer filed a notice of intention to discontinue benefits on April 5, 2005.  In that NOID, the employer stated as follows:

According to the attached IME report of 3/14/2005 and supplemental report of 4/5/2005 from Dr. Paul Cederberg, the employee does not have restrictions that would preclude her from working at her second employer.  The employee’s second employment is sedentary and is well within her physical restrictions.  Ongoing wage loss is unrelated to her work injury of 3/1/2004 and Temporary Partial Disability benefits shall cease.

An administrative conference was held before a compensation judge to address the discontinuance issue.  By order of May 13, 2005, the judge granted the employer’s request to discontinue the employee’s temporary partial disability benefits.  The employee objected.  The employee also returned to Dr. Douglass, who continued the employee’s previous work restrictions, including a limitation to seven hours of work per day, five days per week.  The employee started working full time for the employer in August 2005 for the school year.  She has not attempted to return to work for Fingerhut since June 2004.

An expedited hearing was held on September 9, 2005, to address the employee’s objection to discontinuance.  The compensation judge found that the employee was restricted from returning to work for Fingerhut, and awarded the employee temporary partial disability benefits from and after April 6, 2005.  The self-insured employer appeals.

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 self-insured employer appeals from the compensation judge’s award of temporary partial disability benefits from April 6, 2005, through the date of the hearing.  Temporary partial benefits are payable while an employee is employed, “earning less than [her] weekly wage at the time of injury, and the reduced wage the employee is able to earn in [her] partially disabled condition is due to the injury.”  Minn. Stat. § 176.101(2)(b).  In order to be eligible for temporary partial benefits, the employee must establish a reduction in earning capacity that is causally related to the work injury.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48 (Minn. 1988).  An employee must show (1) a work-related injury resulting in disability, (2) an ability to work subject to that disability, and (3) an actual loss of earning capacity that is causally related to the work-related disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).

The employer argues that the employee is not entitled to temporary partial disability benefits because the employee has been assigned permanent restrictions and therefore her injury is no longer temporary, citing Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  In that case, one of the factors listed as necessary for an award of temporary partial disability benefits was that the injury must be temporary rather than permanent in nature.  The Dorn case, however, does not apply to any injury occurring after August 1, 1974, pursuant to the Minnesota Supreme Court case of Morehouse v. Geo. A. Hormel & Company, 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981).  See Carothers v. Pride Mechanical, slip op. (W.C.C.A. Nov.  4, 1994).  In Morehouse, the supreme court stated:

With respect to claims for temporary partial disability benefits arising out of injuries sustained subsequent to August 1, 1974, it is obvious that an employee is entitled to such benefits so long as he has a "reduction in earning capacity due to injury or occupational disease," and whether his physical condition has stabilized and resulted in a permanent partial disability is no longer relevant to his right to receive compensation for temporary partial disability.

Morehouse, 315 N.W.2d at 10, 34 W.C.D. at 318.  Since the employee’s injury in this case took place in 2004, the question of whether the disability is temporary rather than permanent in nature does not apply.[2]

The employer also claims that the compensation judge erred by finding that the employer was required to present evidence at the hearing that a job was available for the employee at Fingerhut.  The compensation judge stated that:

The position [the] employee held at Fingerhut at the time of her hearing has been filled.  No evidence was presented at hearing that a position is or has been available to the employee at Fingerhut since at least March 3, 2005 when the employer/self-insured took the employee’s deposition wherein she stated that she had not communicated with Fingerhut since Dr. Douglas had made restrictions permanent upon finding her at MMI (November 24, 2004).  With no employment position having been shown available at Fingerhut, the employee’s earning capacity from April 6, 2005 to the date of hearing has been diminished for the same period of time by at least the amount of earnings she made at her pre-injury position at Fingerhut.

(Finding 20.)  "[T]emporary partial benefit awards are generally based on post-injury wages because post-injury wages are presumptively representative of an employee's reduced earning capacity.  In appropriate circumstances, however, this presumption can be rebutted with evidence indicating that employee's ability to earn is different than the post-injury wage."  Einberger v. 3M Co., 41 W.C.D. 727, 739 (W.C.C.A. 1989) (citation omitted).  The burden is on the employer to rebut this presumption.  Patterson v. Denny's Restaurant, 42 W.C.D. 868 (W.C.C.A. 1989).  The employee testified that she believed that her position at Fingerhut had been filled and that her position at Fingerhut was outside of her restrictions.  The employer argues that whether a position at Fingerhut was available was not an issue presented to the judge.  The issue before the compensation judge, however, was whether the employee was entitled to temporary partial disability benefits for a certain period of time, and at the hearing the employer argued that the employee was not restricted from working at Fingerhut at that time.  The compensation judge did not err by correctly noting that the employer presented no evidence to the contrary regarding the availability of the position at Fingerhut in order to rebut the presumption that the employee’s post-injury wage represented her reduced earning capacity.

The self-insured employer also argues on appeal that Dr. Douglass’s opinion, that the employee was permanently restricted from performing her job at Fingerhut, does not have adequate foundation.  Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence.  McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff’d (Minn. July 13, 1990).  Dr. Douglass was the employee’s treating physician, had examined the employee, and had assigned physical restrictions which limited the amount of work the employee could perform.  As a general rule, this level of knowledge establishes a doctor’s competence to render an expert opinion.  See Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1987); Schaar v. Andersen Corp., slip op. (W.C.C.A. Sept. 10, 2004).  As his opinion has foundation, it was not unreasonable for the compensation judge to accept Dr. Douglass’s opinion that the employee was permanently restricted from working at the Fingerhut position.  See Cull v. Wal-Mart Stores, Inc., 64 W.C.D. 264 (W.C.C.A. 2004), summarily aff’d (Minn. July 20, 2004).  Substantial evidence supports the compensation judge’s finding that the employee was permanently restricted from working at her former position at Fingerhut.

Accordingly, we affirm the compensation judge’s award of temporary partial disability benefits.


[1] The employee’s wage rate was not at issue at the hearing before the compensation judge.  As a point of reference, however, the employee states in her appellate brief that her weekly wage on the date of injury was $1,215.94, based on $1,056.72 per week from the employer school district and $159.22 per week from Fingerhut.

[2] In its appellant’s brief, the employer also argued that the employee had not shown a wage loss since she was earning more than she had at the time of injury.  In its reply brief, the employer concedes that the employee was working at a wage loss at the time of the hearing.