HARLON D. TOMFORD, Employee/Appellant, v. MARK=S WELDING, INC., and UNITED FIRE & CAS. GROUP, Employer-Insurer, and CENTRACARE CLINIC and BUFFINGTON CHIROPRACTIC, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 4, 2006

 

No. WC06-165

 

HEADNOTES

 

TEMPORARY BENEFITS.  Where the primary basis for the judge=s denial of benefits was that the employee did not timely communicate with the employer about the reasons for his absence from work, and where the evidence showed that the employee provided adequate information to the employer concerning his disability from work, the record does not support the judge=s denial of temporary disability benefits during June 2005.

 

TEMPORARY TOTAL DISABILITY - JOB SEARCH.  Substantial evidence in the record supports  the compensation judge=s conclusion that the employee did not conduct a reasonable and diligent job search after August 1, 2005, and therefore the denial of temporary total disability benefits between August 1, 2005, and the date of the hearing is affirmed.

 

MAXIMUM MEDICAL IMPROVEMENT.  Based on the record, the compensation judge=s finding  that the employee had reached maximum medical improvement appeared to contradict his findings concerning the employee=s low back injury and continuing effects therefrom, and so the issue of whether the employee has reached maximum medical improvement from his low back injury is vacated and remanded to the compensation for further consideration.

 

WAGES - IRREGULAR.  Where the employee=s wages during the 26 weeks preceding his injury were irregular, the compensation judge appropriately used the statutory calculation provided in Minn. Stat. ' 176.011, subd. 18, to determine the employee=s weekly wage.

 

Affirmed in part, reversed in part, vacated and remanded in part.

 

Determined by Rykken, J., Thomas, C.J., and Stofferahn, J.

Compensation Judge: James F. Cannon

 

Attorneys: DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant.  Troy

A.. Bachman, Brown & Carlson, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of temporary partial and temporary total disability benefits, and medical expenses; from the judge=s determination that the employee has reached maximum medical improvement from his work injury as of November 30, 2005; from the calculation of the employee=s weekly wage; and from the finding that the employee=s right foot injury was temporary in nature.  We affirm in part, reverse in part, vacate in part and remand in part.

 

BACKGROUND

 

Mr. Harlon Tomford, the employee, began working for Mark=s Welding, the employer, on September 8, 2003.  He worked as a welder and fabricator, which required him to perform repetitive lifting in the range of 100 to 150 pounds as well as repetitive bending, kneeling, crouching and overhead work.   The dispute on appeal relates to an admitted right foot injury and a claimed low back injury the employee sustained on June 2, 2005.

 

Before working for Mark=s Welding, the employee had worked in various construction positions and was a self-taught welder.  The employee=s medical history includes treatment in the 1980's for a concussion and to his neck and low back, resulting from a motor vehicle collision.  In March 1990, the employee sustained a work-related injury after falling approximately ten feet off a truck.  He fractured his left arm and wrist, left hip and left knee.  Since  commencing work for Mark=s Welding in 2003, the employee has received occasional chiropractic treatment from Dr. Michael Buffington, including treatments in May 2004 and April 2005.  The employee attributed that treatment to the physical demands of his welding job.  In addition, in January 2005 he consulted Dr. Anand Shah, at CentraCare clinic, reporting right elbow symptoms he had experienced for approximately one month after hitting his elbow on a piece of metal while welding.  Dr. Shah diagnosed right elbow lateral epicondylitis, prescribed Aleve, the use of an elbow gel band, and one session of physical therapy for exercise instruction.

 

On June 2, 2005, the employee sustained an admitted injury to his right foot, and a claimed low back injury, while welding a hay bale fork.  The employee estimated that this piece of equipment measured approximately 4-5 feet high and 5 feet wide, with forks that are approximately 3 feet long, and weighs 250-300 pounds.  As he turned to balance the bale fork, it fell over onto him, striking both of his shins, and landing on top of both of his feet, with the bulk of its weight landing on his right foot.  The bale fork also knocked the employee backwards, causing him to land on his buttocks and back on the concrete floor.  The employee was able to free his right foot from underneath the bale fork, using his left foot to push against it.  He noted severe pain in his right foot, and immediately removed his boot in anticipation that his foot would swell, and reported his injury to his boss.

 

The employee testified that his right foot swelled to over two times its normal size, and that he was unable to work the following day, Friday, June 3, but returned to work on the following Monday, June 6.  Although the employee worked June 6 through 9, with difficulty performing his work duties as a result of his swollen foot, he did not work on Friday, June 10.  On that date, his low back pain had increased to the point where he was unable to get out of bed, and he sought chiropractic treatment the following Monday, June 13.  The employee reported to his chiropractor, Dr. Michael Buffington, that he had Alower back pain that has been getting progressively worse since piece of steel fell on foot a couple of weeks ago.@  The employee worked on June 14-17, and then remained off work until June 30.

 

The employee testified that his work hours were limited during June, due to his right foot and low back condition.  He received additional chiropractic treatments on June 15, 22, 24, 27 and 29.  According to Dr. Buffington=s chart note of June 22, 2005, the employee reported that his back had been improving until June 15, when he was noted severe low back pain after he was asked to help lift pipes and transmission at work.  On June 22, he advised Dr. Buffington that he had been unable to work all week, and that Ait takes most of the morning for his lower back to feel better, when he gets up in the morning.@  On Monday, June 27, the employee reported to Dr. Buffington that his left lower back pain was not as intense, and that his radiating pain has stopped and he was Aable to sleep better again.@  Dr. Buffington noted that he planned to re-evaluate the employee within two days Aand if continued progress return [him] to work with twenty-pound maximum weight restriction.@  His chart note of June 29 states that the employee=s lower back was improving; he released the employee to return to work on June 30 with restrictions of limited bending and a 20-pound weight lifting limit.

 

The employer provided the employee with light-duty work in early July 2005.  Despite his lighter-duty activities, the employee could only tolerate limited work hours.  His chiropractic records in July 2005 reflect continued physical work restrictions and the employee=s reported inability to work certain days due to continuing symptoms.  Those records also refer to his right foot injury and that his right foot still was occasionally painful, but that the pain was improving.  Dr. Buffington=s chart notes in July reflect continued low back pain, aggravated by work activities.

 

On July 13, 2005, the employee consulted James Bergmann, PA-C, physician=s assistant at Centra Care, reporting low back and right foot pain.  Mr. Bergmann took x-rays of the employee=s lumbar spine and right foot.  The lumbar x-rays were interpreted to show very mild scoliosis and early signs of arthritis but no obvious compression fractures, as well as L5 spondylolysis with spondylolisthesis, which was suspected to be chronic due to the sclerosis about the pars fracture lines.  The right foot and ankle x-rays showed normal alignment and no obvious fractures or abnormalities.  Mr. Bergmann diagnosed lower back pain and right foot pain, most likely caused by ankle sprain.  He prescribed naproxen to treat inflammation, and confirmed that the employee=s chiropractor had assigned physical work restrictions.

 

According to Dr. Buffington=s August 1, 2005, chart note, the employee reported that his lower back was stiff and painful and that he noted foot pain as well.  Dr. Buffington reiterated that the employee was restricted to a 20-pound lifting limit and that he should stand no more than four hours per eight-hour work day, and signed a work restriction slip to that effect.  On August 1, 2005, the employee brought the employer a copy of the chiropractor=s work restriction slip.  According to the employee, when he met with the employer that day, the employer advised him that his health insurance coverage would be discontinued, because he had never worked a full time, 40-hour work week even though he had been hired to work on a full-time basis.  The employer also asked him to turn in his work uniforms, for the same reason.  The employer also asked the employee to sign a form confirming termination of medical insurance benefits.  From this conversation it was the employee=s perception that his position had been terminated by the employer, based to the reference to  Atermination@ on the insurance form.  The employee has not worked for the employer since August 1, 2005.

 

The employee searched for replacement employment, in part by registering with the Work Force Center in Alexandria, located approximately 30 miles from home in rural Long Prairie, Minnesota.  He testified that he searched for all listed welding positions, including welding, fabricating and construction, available within a 40 mile radius of his home.  The employee also reviewed local news paper advertisements, but found no listing for welding, construction or other jobs, within his work restrictions.  The employee testified that due to his financial status, his telephone service and utilities have been disconnected at times since August 1, 2005.  Those limitations restricted his job search.  He also testified that his travel has been restricted due to his limited ability to pay for gasoline expenses.

 

On August 30, 2005, the employee requested rehabilitation services.  On October 20, 2005, Ms. Ione Tollefson, qualified rehabilitation consultant (QRC), conducted a rehabilitation consultation and concluded that the employee was a qualified employee, based upon his physical condition and work restrictions.  She concluded that his restrictions precluded him from returning to his pre-injury position as a welder, and developed a rehabilitation plan, recommending vocational testing and later referral for job placement assistance following that testing.  Ms. Tollefson submitted the rehabilitation plan to the insurer, but it did not sign the plan on the basis that the claim was in litigation.  On November 17, the employee filed a rehabilitation request, seeking approval of the recommended vocational services; the employer and insurer filed no rehabilitation response.

 

On September 1, 2005, the employee filed a claim petition, seeking payment of temporary partial and temporary total disability benefits, as well as medical and chiropractic expenses.  The employer and insurer admitted primary liability for the employee=s right foot injury, but denied primary liability for his claimed low back injury, contending that the employee did not report his low back condition until a few weeks after his injury, and on the basis that the employee had a pre-existing low back condition.  The employer and insurer contended that the employee had not been terminated from his employment on August 1, 2005.

 

On November 10, 2005, Dr. Richard Strand examined the employee at the request of the employer and insurer.^[1]  In his report dated November 30, 2005, Dr. Strand concluded that the employee sustained a contusion to his right foot on June 2, 2005, but, based on normal examination results, needed no activity restrictions and no further medical treatment for that right foot injury.  Dr. Strand also concluded that the employee had reached MMI from his right foot injury and had not sustained a permanent injury to his right foot.  Dr. Strand also concluded that the employee sustained no specific injury to his lumbar spine on June 2, 2005.  He concluded that the employee may have had a brief exacerbation of his pre-existing low back pain, but that Aany symptomatic exacerbation that he may have sustained on June 2, 2005 would have resolved within a period of days.@  Dr. Strand concluded that the employee needed no restrictions as a result of any injury on June 2, 2005, based on his normal examination findings.  He concluded that the employee had reached MMI from his alleged low back injury within a few days of the incident, and that any medical care and treatment after his July 13, 2005, medical exam was due to his pre-existing low back condition.  Dr. Strand specifically concluded that the employee needed no further medical care or treatment relative to his claimed June 2, 2005, injury, including any imaging, chiropractic treatment, massage therapy, or acupuncture.

 

The employee=s claim petition and rehabilitation request were consolidated for a hearing, which was held before a compensation judge on January 26, 2006.  The hearing addressed the employee=s various claims for benefits, and also addressed a dispute over the proper calculation of the employee=s wage and the employee=s claim for penalties under Minn. Stat. ' 176.225, subds. 1 and 5, based on the employer and insurer=s failure to pay any benefits.

 

Following submission of written briefs by the parties, the compensation judge issued his findings and order on April 5, 2006.  The compensation judge determined that the employee sustained both a work-related right foot and low back injury on June 2, 2005.  He found that the employee was not temporarily partially disabled from June 3 through June 30, 2005, as a result of his injury, but that he had been temporarily partially disabled from June 30 through July 31, 2005, due to his work-related low back injury.  The compensation judge found that the employee=s position with the employer had been terminated as of August 1, 2005, but he denied the employee=s claim for temporary total disability benefits after that date because he had not made a reasonable and diligent job search to seek alternative employment within his injury-related restrictions.  The compensation judge determined, however, that the employee was entitled to rehabilitation services due to his low back injury and related restrictions.

 

The compensation judge also concluded that the employee reached maximum medical improvement (MMI) from his work-related injuries as of November 30, 2005.  On that basis, he concluded that the employee=s chiropractic and other medical treatment received after November 30, 2005, to the present and continuing, constituted medical treatment which was not reasonable and necessary, nor causally related to, the employee=s work-related injuries.

 

On the issue of the employee=s average weekly wage, the compensation judge concluded that the employee=s average weekly wage was $401.56.  The compensation judge also concluded that the employee was not entitled to any claim for penalties due to failure to pay benefits, because the employer had legitimate defenses to the employee=s claims for benefits and had not unreasonably or vexatiously denied payment of benefits.

 

The employer and insurer did not appeal from the finding that the employee sustained a low back injury on June 2, 2005, and that he had been terminated from his employment on August 1, 2005, nor did they appeal from the awards of temporary partial disability benefits between June 30 and July 31, 2005, and rehabilitation expenses.  The employee appeals the denial of temporary partial and temporary total disability benefits, appeals the finding concerning the employee=s weekly wage, and appeals from the findings that he had reached MMI as of November 30, 2005, and that any medical or chiropractic treatment beyond November 30, 2005, was not reasonable and necessary.

 

DECISION

 

Temporary Partial Disability Benefits Between June 3-30, 2005

 

The employee appeals from the compensation judge=s denial of temporary partial disability benefits between June 3 and 30, 2005.  The judged denied those benefits on the grounds that the employee did not timely provide the employer with medical support for his absence from work and that the employer would have had work available within his restrictions.

 

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, the employee worked during part of June, but claims that he was disabled for a portion of that month due to the effects of his work injury.  The employee testified that he was unable to work on June 3, the day following his injury, as his right foot was very swollen and sore from his injury.  During the first full week following his injury, the employee worked four days and remained off work one day due to low back symptoms.  During the next week, he again worked four days and remained off work one day, again, according to the employee=s testimony, because his low back symptoms restricted him from working.  The employee did not work from June 18 to 29, 2005, due to his right foot and low back symptoms.

 

The compensation judge apparently based his denial of temporary partial disability (TPD) benefits during June 2005 on the employee=s failure to communicate with the employer during the month of June and to timely provide his employer with written restrictions from his treating chiropractor.  We conclude that the record shows otherwise - - that the employee provided the employer with medical slips and notice of the reason for his work absences well before June 30, 2005, the date referred to by the judge.

 

First of all, the employee reported his work injury in the afternoon of June 2, 2005, immediately following his injury.  The employee testified that he had severe right foot pain the next day, rendering him unable to work on that day; the employer had notice of the injury and the employee=s condition.

 

In addition, the record contains a form signed by Dr. Buffington on June 13, 2005,  entitled AAuthorization for work absence and/or household activity restrictions,@ requesting that the employee be excused from work on June 10 and 13, 2005, because Alower back pain that has been getting progressively worse since piece of steel fell on foot a couple weeks ago.@  (Er Exh. 3.)  The employee testified that he provided this work slip to the employer when he returned to work; at the hearing, the employer agreed that the employee brought this work slip in to him when he when he returned to work on June 14.  In addition, the employer spoke with Dr. Buffington the week of June 13, 2005, when the chiropractor called to obtain claim information, and the employer called Dr. Buffington on other occasions.   There is no dispute that the employee was restricted from work during the two weeks immediately following his injury as a result of that injury.  The employee also testified that on more than one occasion between June 18 and 29 he advised either his employer (directly or through a co-worker) that he was unable to work due to his injury.  On June 29, 2005, that Dr. Buffington completed a disability slip listing a restriction of 20-pound lifting limit and stating that the employee could return to work on June 30, 2005.  The employee provided this form to the employer on June 30, 2005.

 

Based on the information contained in the record, and because the primary basis for the judge=s denial of benefits was that the employee did not timely communicate with the employer about the reasons for his absence from work, we conclude that the evidence in the record does not support the judge=s denial of temporary partial disability benefits between June 3-30, 2005.  We reverse the denial of benefits between June 3-30, 2005.  We award temporary partial disability benefits for the period between June 3 and 17, 2005, when the employee continued to work on a part-time basis.  During the period between June 18 and 29, however, when the employee was totally disabled as a result of his work injury, we award temporary total disability benefits.

 

Temporary Total Disability Benefits from August 1, 2005

 

The employee appeals from the compensation judge=s denial of temporary total disability benefits after August 1, 2005, the date when his employment was terminated.  The judge concluded that the employee required work restrictions after that date due to his work-related back injury, but that because he did not make a reasonable and diligent effort to seek alternative employment within his restrictions, he was not entitled to temporary total disability benefits.

 

Temporary total disability is found when an employee=s physical condition, together with her training, experience, and type of work available in his community cause the employee to be unable to obtain anything but sporadic employment at an insubstantial wage.  Fredenburg v. Control Data Corp., 311 N.W.2d 860, 34 W.C.D. 260 (Minn. 1981).  The employee=s loss of earning capacity must be causally related to the disability.  Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).  An Ainjured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.@  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  The determination of whether an employee=s job search is diligent is a question of fact for the compensation judge.  Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).

 

In this case, the employee testified that he sought alternative employment by researching job leads at the Work Force Center in Alexandria, and searched for all listed welding positions, including welding, fabricating and construction, available within a 40 mile radius of his home.  The employee also testified that he reviewed local newspaper advertisements, but found no listing for welding, construction or other jobs, within his work restrictions.  The employee testified that his limited financial status restricted his ability to travel in order to conduct a job search.  He also argues that the employer and insurer=s refusal to provide rehabilitation assistance should be considered when determining whether the employee=s job search was reasonable and diligent.

 

Whether the inability to obtain full-time employment is a result of the personal injury is generally a question of fact for the compensation judge, and any relevant evidence may be considered, including the nature and extent of the employee's job search.  Stauty v. Luigino's Inc., slip op. (W.C.C.A. Dec. 19, 1994).  The absence of rehabilitation assistance is an element to be considered in evaluating the diligence of a job search, but it does not relieve the employee of the burden of proving a diligent job search.  Mattson v. State, Dep=t of Public Safety, 48 W.C.D. 77, 80  (W.C.C.A. 1992).  Although the employee testified about the types of job research he conducted after August 1, 2004, he provided no written documentation of his job search.  The employee conceded that he completed no applications and had no interviews for any positions after August 1, 2005.  Under these circumstances, we cannot say that the judge=s finding, that the employee did not conduct a reasonable and diligent job search, was Aclearly 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).  Finding substantial evidence to support the compensation judge=s basis for denying temporary total disability benefits between August 1, 2005, and the date of the hearing, January 26, 2006, we affirm.

 

At Finding No. 12, the compensation judge denied temporary total disability benefits from August 1, 2005, Ato the present and continuing.@  A compensation judge is required by statute to issue a decision which includes a determination of Aall contested issues of fact and law.@  See Minn. Stat. ' 176.371.  A compensation judge does not, however, have authority to make findings of prospective effect.  See Keiser v. Merit Hvac, slip op. (W.C.C.A. Feb. 1, 1995); Lacey v. Arrowhead Tree Serv., slip op. (W.C.C.A. Oct. 14, 1994).  It was clear error for the judge to deny TTD benefits beyond the hearing date.  We therefore vacate those portions of the compensation judge=s findings and order that deny ongoing TTD benefits beyond the date of January 26, 2006.

 

Attainment of Maximum Medical Improvement;

Medical Treatment after November 30, 2005

 

 Relying on the medical opinion of Dr. Strand, the judge concluded that the employee had reached maximum medical improvement from his June 2, 2005, work injury by November 30, 2005 (the date of Dr. Strand=s report).^[2]  The employee appeals from that finding, arguing that it is premature to determine whether MMI has been reached.

 

Maximum medical improvement is defined as "the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability."  Minn. Stat. ' 176.011, subd. 25.  Maximum medical improvement "occurs upon medical proof that the employee's condition has stabilized and will likely show little further improvement."  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions, and other relevant evidence.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).

 

Various factors can be considered by a compensation judge in determining whether an employee has reached MMI.  Those include a history of improvement of symptoms, the opinions of physicians, proposed treatment and the employee=s testimony.  See Galba v. R.E. Hamann Roofing, 39 W.C.D. 954 (W.C.C.A. 1987); Walters v. Schult Home Corp., slip op. (W.C.C.A. Mar. 21, 1990) (the court held that MMI had not occurred where the employee was to undergo additional treatment to determine the source of her problems and future course of treatment).  The employee argues that his medical and chiropractic treatment have been very limited since August 1, 2005, after his employment and medical insurance coverage were terminated.  He argues that his treating chiropractor, who had been willing to provide some treatment without ongoing payment, believed that additional diagnostic testing was needed for the employee=s low back condition.  The chiropractor referred the employee back to his treating physician, and, following an examination on November 7, 2005, physician=s assistant Bergmann recommended an MRI scan of the employee=s lumbar spine to rule out any impingement problems that might be causing his persistent low back pain.  The employer and insurer denied authorization for that diagnostic testing.  (Ee Exh. M.)

 

The judge=s reliance on Dr. Strand=s opinion concerning MMI seems to be internally inconsistent with his other findings related to the employee=s low back injury.  For example, the compensation judge rejected Dr. Strand=s opinion that the employee=s low back injury on June 2, 2005, represented, at most, a brief exacerbation of his pre-existing condition and did not substantially contribute to his ongoing low back complaints.  The judge carefully reviewed the employee=s medical history and previous low back treatment, accepted the employee=s testimony as credible, and specifically concluded that the employee=s pre-existing back condition was minor, that he sustained a low back injury on June 2, 2005, that he was disabled for a period of time thereafter and that he remains restricted due to his work injuryBfactors that all are contrary to the opinion of Dr. Strand.

 

We acknowledge that a factfinder generally may accept all or only a part of any witness's testimony.  Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992) (quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)), summarily aff'd (Minn. Mar. 3, 1993).  But the judge=s reliance on Dr. Strand=s opinion concerning MMI, along with his rejection of Dr. Strand=s related conclusions that formed the doctor=s basis for his MMI opinion, render the judge=s conclusions internally inconsistent.

 

In addition, it appears that the compensation judge determined, in part, that the employee had reached MMI because the employee had submitted no narrative report from Dr. Buffington, or any other physician, that specifically states that the employee has not yet reached MMI.  It is unclear from the compensation judge=s findings and memorandum as to whether he deemed it necessary to conclude that the employee had reached MMI because no other medical opinion in the record refuted Dr. Strand=s opinion.  A finding of MMI is an issue of ultimate fact to be decided by a compensation judge after considering medical opinions, records and other evidence and is not entirely dependent on medical opinion.  Hammer, 435 N.W.2d at 528-29, 41 W.C.D. at 639.

 

Under the circumstances of this case, and based on the evidence in the record, a finding of MMI may be premature.  We therefore vacate the compensation judge=s finding that the employee has reached MMI from the effects of his June 2, 2005, work injury.  We remand this matter to the compensation judge for reconsideration of the issue of whether, based on the totality of the existing record, the employee has reached MMI.

 

The compensation judge also denied any chiropractic or medical treatment beyond November 30, 2005, the date on which he determined the employee had reached MMI.  Between November 30, 2005, and the date of hearing, the employee received one chiropractic treatment on December 12, 2005.  Since it appears that at least one basis for denying that treatment was that the employee had reached MMI on November 30, 2005, and since we have vacated that finding of MMI, we ask the judge to reconsider the issue of whether any treatment between November 30, 2005, and the hearing date was reasonable and necessary and causally related to the employee=s work injury.

 

The compensation judge also denied payment for ongoing medical or chiropractic treatment, beyond the hearing date.  Whether further treatment will be needed, or what the extent of that treatment might be, cannot be determined at this point.  Since medical and chiropractic treatment beyond the date of hearing cannot be prospectively foreclosed, see Keiser v. Merit Hvac, slip op. (W.C.C.A. Feb. 1, 1995) and Lacey v. Arrowhead Tree Serv., slip op. (W.C.C.A. Oct. 14, 1994), we vacate those portions of the compensation judge=s findings and order that deny payment for ongoing medical and chiropractic treatment beyond the hearing date of January 26, 2006.

 

Weekly Wage Determination

 

The compensation judge determined that the employee earned a weekly wage of $401.56 at the time of his 2005 injury, accepting the calculations by the employer and insurer made by using the statutory calculation provided in Minn. Stat. ' 176.011, subd. 18, for determining a wage rate for an employee who worked irregular hours.  The employee argues that the compensation judge erred in calculating his weekly wage.  He agrees that the statutory calculation method is appropriate to use, since his wages during the 26 weeks preceding his work injury were irregular.  However, he argues that the calculation must be modified to reflect the employee=s hourly wage increase on March 1, 2005, from $11.00 per hour to $12.00 per hour.

 

An employee=s weekly wage is calculated Aby multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.@  Minn. Stat. ' 176.011, subd. 18.

 

Minn. Stat. ' 176.011, subd. 18 defines weekly wage:

 

Weekly wage is arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved.  If the employee normally works less than five days per week or works an irregular number of days per week, the number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties, provided that the weekly wage for part time employment during a period of seasonal or temporary layoff shall be computed on the number of days and fractional days normally worked in the business of the employer for the employment involved.

 

The daily wage is calculated by:

 

dividing the total amount of wages, vacation pay and holiday pay the employee actually earned in such employment in the last 26 weeks, by the total number of days in which such wages, vacation pay, and holiday pay was earned, provided further, that in the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage.

 

Minn. Stat. ' 176.011, subd. 3.

 

According to the pre-injury wage information in the record, which documented the employee=s earnings in the 26 weeks preceding his injury, the employee=s work hours varied greatly; his hours worked in each semi-monthly pay period ranged between 47 3/4 and 86 hours, for an average of 66.3 hours per semi-monthly pay period.  He earned a total of $10,448.13 during those 26 weeks, and worked a total of 115 days, for an average of 4.42 days per week.  By using the statutory calculation method, dividing the total wages by the total number of days results in a daily wage of $90.85.  Multiplying the daily wage by 4.42 days results in a weekly wage of $401.56.

 

The employee argues that the wage calculations should reflect his hourly wage increase on March 1, 2005, from $11.00 per hour to $12.00 per hour, to more properly approximate his earning power that has been impaired.  AThe object of wage determination is to >arrive at a fair approximation of [the employee=s] probable future earning power which has been impaired or destroyed because of the injury.=@  Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452, 455 (Minn. 1985) (quoting Sawczuk v. Special Sch. Dist. No. 1, 312 N.W.2d 435, 437-38, 34 W.C.D. 282, 287 (Minn. 1981)).

 

In support of his arguments, the employee relies on the holding in Vesledahl v. Kunde Company, 52 W.C.D. 559 (W.C.C.A. 1995), summarily aff=d, (Minn. May 16, 1995), which involved an employee whose pre-injury wages were irregular and who received an hourly wage increase as of the date of injury.  The employee in that case was a seasonal construction worker, and so was entitled to five times his daily wage for his wage calculation.  The court in Vesledahl referred to a calculation method that was not entirely statutory but best took into account the facts peculiar to that case, and emphasized that the method used there Ashould not be applied in other cases.@  In this case, the employee=s wage increase occurred approximately three months before the injury and therefore is included in the statutory calculation.  The employee is not a seasonal employee and there is no basis for not following the statutory calculation.^[3]  We therefore affirm the compensation judge=s finding that the employee earned a weekly wage on June 2, 2005, of $401.56.

 

Nature of Right Foot Injury

 

The employee appeals from the compensation judge=s finding that the employee sustained a temporary injury to his right foot on June 2, 2005.  The compensation judge concluded that the employee=s medical records document that the employee first received medical care for his right foot on July 13, 2005, that the x-rays of his right foot and ankle taken on that date were normal, and that no other medical or chiropractic records include recommendations for further medical treatment.  The judge relied on Dr. Strand=s opinion when concluding that the employee=s work-related right foot injury was temporary in nature and had resolved by August 1, 2006.

 

The employee argues that the judge erred when concluding that he received no chiropractic treatment for his right foot; the employee testified the chiropractor, at least at his initial visit, adjusted his foot and ankle.  The employee also argues that he continues to note swelling in his right foot after prolonged standing, as well as swelling in his left foot, and that as of August 1, 2005, Dr. Buffington had restricted him to four hours of standing during each work day.  We acknowledge that in the initial chiropractic records there are limited references to the employee=s right foot injury.  Other than in a chart note dated July 13, 2005, there are no medical records in evidence that refer to ongoing right foot symptoms.  In addition, the employee testified that his chiropractic and medical treatment has related primarily to his low back, that Dr. Buffington did not treat his right foot at each visit, and that he had not received any chiropractic treatment for his right foot 2-3 months before the hearing.  Based on this evidence, and in view of Dr. Strand=s medical report, we cannot say that the judge erred when concluding that the employee=s right foot injury was temporary in nature.  Because there is adequate support in the record for that conclusion, we must affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

Reimbursement of Taxable Costs and Disbursements

 

In the employee=s appellate brief, he requests an order from this court awarding statutory interest and taxable costs on those issues on which he prevailed. Actual and necessary disbursements may be awarded to a prevailing party. Minn. Stat. ' 176.511; Minn. R. 1415.3300. Since the employee prevailed on portions of his claim, at both the evidentiary hearing before the compensation judge and on appeal, he is entitled to reimbursement of his actual and necessary disbursements.  The employee should submit an itemization of taxable costs and disbursements to the Office of Administrative Hearings.