THOMAS SKELLEY, Employee, v. LUCENT TECHS., and RELIANCE NAT=L INS. CO./HERITAGE CLAIM SERV., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 27, 2006

 

No. WC05-305

 

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY; JOB OFFER - RELOCATION.  The employer and insurer failed to rebut the presumption of earning capacity based on actual wages where the employee's post-injury job with the employer was terminated for reasons not related to the work injury and was no longer available to him, the employee had permanent work restrictions, and the employer and insurer conceded the employee made a diligent job search post-termination resulting in a suitable job at a wage loss.  An employee is not required to relocate outside his home community, and the compensation judge did not err in concluding the employee reasonably declined the employer's offer of a similar job in Ohio.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

Attorneys: Allen R. Webb, Christopher Middlebrook & Assocs., Bloomington, MN, for the Respondent. Richard L. Plagens and Kay Nord Hunt, Lommen, Abdo, Cole, King & Stageberg, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s denial of their petition to discontinue temporary partial disability benefits.  We affirm.

 

BACKGROUND

 

On October 10, 2000, Thomas Skelley, the employee, sustained a personal injury  to the neck and right shoulder while employed by Lucent Technologies, the employer, insured by Reliance National Insurance Company with claims administered by Heritage Claims Service.  The employee was then earning a weekly wage of $1,461.95.  The employer and insurer admitted liability for the employee=s personal injury.

 

Following the work injury, the employee underwent surgery for a cervical disc herniation in December 2000.  He underwent a second surgery for a right rotator cuff tear in May 2003.  There is no dispute the employee=s personal injury substantially contributed to the need for the surgeries.

 

As a result of the work injury, permanent restrictions were placed on the employee's work activities including no lifting over 40 pounds and no overhead work.  Between the surgeries, the employee returned to work for the employer as a project coordinator.  In early 2004, the employee returned to his preinjury job with the employer as a telecommunications installer.  The employee was able to work as a cable installer for the employer within his restrictions and without wage loss.  The employee described his job duties as follows:

 

It involved installing switching equipment in a central office environment for AT & T, Qwest, or any other telecommunications company, pull switchboard cable, power cable, later on fiber optic cable, involved in wiring of systems, cross-connects, etcetera, and also involved in the removal of old equipment.  (T.20.)

 

Between 2002 and 2004, the employer began transferring workers to its facility in Columbus, Ohio.  In the summer of 2004, the employee, together with co-workers doing similar work, was offered a transfer to Ohio.  The employee declined to relocate and his job at Lucent Technologies was terminated.

 

Following his termination, the employee looked for jobs in the telecommunications field.  He stated he made some phone calls and found a couple of companies that were hiring.  The employee testified he spoke to persons in the Human Resources Department of ADC about a job opening and was told the job would involve lifting and working overhead.  The employee determined he would be physically unable to perform that job and did not submit a job application.  The employee stated he also spoke with a company about an electronics technician job which he did not pursue when he learned it involved travel 75 percent of the time.  The employee testified he sent out numerous resumes but received no formal job interviews.

 

In September 2004, the employee met with a qualified rehabilitation consultant (QRC), Steven Kurenitz.  The QRC concluded the employee was qualified for rehabilitation services, following which he performed vocational testing, reviewed the employee=s job seeking skills and completed a resume.  The employee continued his job search and within a few weeks was offered and accepted a job with Caterpillar Corporation as an assembly mechanic with starting pay of approximately $16.00 an hour plus benefits.  Mr. Kurenitz testified he discussed the job with an adjuster from the insurer and all parties agreed the job was suitable.  The employee began work at Caterpillar on October 24, 2004, following which rehabilitation was closed.  By the time of trial, the employee=s hourly wage had increased to $19.06.  The employer commenced payment of temporary partial disability benefits.

 

In September 2005, John W. Richardson conducted a vocational evaluation of the employee at the request of the employer and insurer.  Mr. Richardson concluded the employee=s job search was diligent and stated his employment with Caterpillar was a excellent match with his employability in the labor market.  He also concluded the job was a reasonable match with the employee=s physical restrictions.  Mr. Richardson additionally stated, however:

 

While Mr. Skelley does have a significant lifting restrictions when compared with his past employment activities, it does not appear that his present economic loss is based on these restrictions.  Mr. Skelley is quite clear in his interview that there are no job possibilities in the telecommunications industry which would be available in the present labor market.  He basically indicates that there are many other individuals looking for work and that are in a similar position to him that do not have restrictions and he confirmed that approximately 10 other individuals were offered permanent transfer at the same time he was back in July 2004.  He describes that these other individuals were not workers compensation recipients and he did not feel discriminated against in this regard.

 

At the present time it is my opinion that Mr. Skelley is presenting suffering from economic loss based on economic conditions related to the telecommunications industry.  Although Mr. Skelley does have work restrictions which presently preclude him from returning to work activities within the medium and heavy classifications of work, he still has significant transferable skills which he is presently utilizing in an appropriate manner with his new employer.  There is no indication in the job search that was described to me by Mr. Skelley that he was ever unable to obtain employment because of his work restrictions, or that employment within his field of training or experience were available in the present labor market within the Twin Cities.  Indications from Mr. Skelley that the economic situation in the telecommunications industry is extremely poor with no hiring occurring.  It is my conclusion that his present economic loss is unrelated to his restrictions and work injury.

 

(Pet. Ex. A).

 

The employer and insurer then filed a petition to discontinue temporary partial disability benefits.  Following a hearing, the compensation judge found the petitioners failed to show that the employee=s loss of earning capacity was due to the unavailability of telecommunication installer jobs in his labor market rather than the work injury and denied the request to discontinue benefits.  The employer and insurer appeal.

 

DECISION

 

The appellants argue the employee voluntarily severed his relationship with the employer, and his reduced earnings thereafter are unconnected to his disability.  The appellants contend the employee=s loss of earnings was caused by business conditions, i.e., there were no jobs available in the telecommunications industry in the employee=s labor market.  In support of this assertion, the appellants point to the employee's testimony that there were job losses in the installation technician field because of technological and other changes within the telecommunications industry.  They also assert the employee never told his QRC he refused a job in the telecommunications field because of physical restrictions.  Additionally, Mr. Richardson stated there was no evidence in the employee=s job search that he was unable to obtain employment because of his restrictions.  The employee has the burden of proving entitlement to temporary partial disability benefits but, the appellants assert, he presented no evidence of any higher paying job which would have been available to him absent any restrictions.  Thus, the appellants contend, the employee failed to prove a causal relationship between the personal injury and his wage loss.  We disagree.

 

To prove entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.  Krotzer v. Browning-Ferris, 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).  In this case, it is undisputed the employee is subject to permanent physical restrictions as a result of his work injury.  The employee cooperated with rehabilitation efforts, accepted a job at a wage loss which all parties deemed appropriate, and rehabilitation was then closed by agreement of the parties.  There is no dispute that the employee=s physical restrictions limit his ability to perform certain types of work activities.  The employee's QRC testified these work restrictions reduced the employee=s potential employment market.  This evidence establishes the requisite causal connection between the employee=s personal injury and his wage loss.

 

What an employee is able to earn in the employee=s partially disabled condition is a question of fact.  Enrico v. Oliver Iron Mining. Co., 199 Minn. 190, 271 N.W. 456, 10 W.C.D. 5,  (1937).  It is well established that actual post-injury earnings are presumptively representative of an injured employee's ability to earn.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960).  While this presumption may be rebutted by evidence that post-injury earnings are not a reliable indicator of the employee's earning capacity, Mitchell v. White Castles Sys., Inc., 290 N.W.2d 753, 32 W.C.D. 288 (1980), vocational opinion as to earning  capacity is not sufficient to rebut the presumption in the absence of evidence that better paying work is actually available in the employee=s labor market.  Passofaro v. Blount Constr. Co., Inc., 49 W.C.D. 535,  544 (W.C.C.A. 1993).  The workers= compensation statutes as a whole Aclearly expresses the legislative intent and purpose of providing continuing income to a disabled worker.@  Harrison v. Schafer Constr. Co., 257 N.W.2d 336, 30 W.C.D. 24 (Minn. 1977).

 

The appellants argue the presumption is inapplicable in this case because the employee returned to his previous job with the employer without wage loss.  The appellants cite Professor Larson who states, AIf the employee, as often happens, returns to his or her former work for the same employer after the injury, or is offered it, at a wage at least as high as before, there is a presumption against loss of earning capacity.@  4 Arthur Larson and Lex K. Larson, Larson's Workers= Compensation Law, ' 81.02[3] (2005).  While, in general, we agree with Professor Larson=s statement, it does not apply to the facts in this case.

 

Earning capacity is not a static concept.  In early 2004, the employee returned to work for the employer in his preinjury job.  During this period, it is axiomatic the employee had no entitlement to temporary partial disability benefits because he had no wage loss.  Since the employee=s job with the employer was terminated, however, and is no longer available to him, that job is no longer evidence of his current earning capacity.  Tottenham v. Eaton Shar-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990); Stute v. Tom Thumb Food Markets, 59 W.C.D. 625 (W.C.C.A. 1999).^[1]  In Serra v. Hanna Mining Co., 65 W.C.D. 532 (W.C.C.A. 2005) this court held it was error to impute an earning capacity to the employee based upon employment lost for reasons unrelated to the injury where the job was no longer available to the employee.  In so holding, this court reasoned:

 

An employee's earning capacity depends directly on the employee's value in the labor market in light of his age, experience, disabilities and restrictions.  To impute an earning capacity in the absence of evidence establishing that a job affording the imputed level of compensation is actually available is to essentially deny the employee the possibility of proving a causal relationship between subsequent demonstrated wage loss and the employee=s disability.

 

Id. at 597.

 

Neither is the presumption rebutted by the fact that the employee was offered a similar job in Ohio.  An employee is not required to relocate outside his home community to be eligible for wage loss benefits.  Fredenburg v. Control Data Corp., 34 W.C.D. 260, 311 N.W.2d 860 (Minn. 1981); Detmar v. Kasco Corp., 60 W.C.D. 81 (W.C.C.A. 2000); Van Overbeke v. Bud Meyer Trucking, 41 W.C.D. 572 (W.C.C.A. 1988).  As noted by the compensation judge, the employee and his wife have significant, long-term personal and economic ties to the Twin Cities area.  (Finding 7; Mem. at 5.)  The compensation judge properly analyzed the law and substantial evidence supports the finding that the employee reasonably declined the employer's offer to relocate to Ohio.

 

The employer and insurer presented no evidence that the employee=s actual post-termination earnings were not an accurate measure of his earning capacity.  Accordingly, the compensation judge properly denied the appellants= request to discontinue temporary partial disability benefits.  We affirm.