Denise Hawley, the employee, was hired in 1998 as a cashier by Kwik Trip, Inc., the employer.  Her duties included cashiering, cleaning, stocking, loading and unloading trucks, and stocking shelves.  On October 14, 2003, the employee was handing a truck driver a stack of five empty plastic milk totes which were used to transport one gallon milk containers.  The employee testified that as she grabbed the stack of totes, she turned her wrist and heard an audible pop in her left wrist.  As she went to grab another set of totes, she testified her hand “immediately froze up, I could not move my fingers or my wrist, and it swelled considerably.”  (T. 33.)  The employee testified she was unable to finish her shift because she was in too much pain and could not move her left hand.  She filled out an accident report and left to seek medical attention.

The employee was seen at the Mayo Clinic on October 14, 2003, and reported left wrist pain after loading crates at work.  On examination, the doctor noted pain over the entire wrist, even with light touch, but an otherwise normal examination.  The diagnosis was wrist strain, but the doctor stated the employee’s pain was out of proportion to the examination findings.  The employee next sought treatment on November 4, 2003.  Dr. Peter Elkin noted the employee’s wrist was tender with a mild bruise and diagnosed a possible navicular fracture.

The employee saw Dr. Keith Bengston at the Mayo Hand Clinic on November 25, on referral from Dr. Elkin.  The doctor reviewed an MRI scan which showed a radial scaphoid cyst and increased edema in the left trapezium but noted the employee’s examination was not consistent with the MRI findings.  Dr. Bengston stated he saw no other anatomic problems that would explain the employee’s level of discomfort.  The doctor stated, “I suspect that this may be a chronic pain situation, as she has had previous problems with left upper extremity pain and she might be quite sensitive to further insults to the left upper extremity.”  (Pet. Ex. 5.)  The doctor prescribed physical therapy and stated the employee should continue working.  On December 10, the employee told Dr. Bengston she was having problems with pain and coldness in her left hand.  On examination, the doctor noted the employee’s left hand was colder to touch than the right but noted no other changes that indicated further autonomic dysfunction.  Dr. Bengston’s impression was left arm pain and coldness of uncertain etiology.  On December 24, 2003, Dr. Shabona Pasha felt the employee’s symptoms could be suggestive of early reflex sympathetic dystrophy (RSD).  The doctor took the employee off work.

Dr. Benjamin Levine examined the employee on January 7, 2004, at the request of the employer and insurer.  The doctor obtained a history from the employee, reviewed her medical records and performed a physical examination.  Dr. Levine stated he was unable, however, to perform an adequate physical examination because of the employee’s severe pain reaction which he felt was somewhat embellished.  He observed, however, mottling and coolness in the employee’s left hand and felt there might be a component of RSD or Raynaud’s phenomenon involved.  The doctor opined that while this condition could be a result of the work injury, it more likely resulted from a motor vehicle injury in January 2001.  Dr. Levine stated he was unable to make a specific diagnosis, but acknowledged the employee had pain and stated she should not return to full-work duties.  He further opined she had not reached maximum medical improvement (MMI).

The employee went to the emergency room on January 12, 2004, due to increasing symptoms in her left hand, and then saw Dr. McBane at the Mayo Vascular Center on January 23.  Dr. McBane stated the employee’s work injury resulted in “pain, coolness and cyanosis of the left hand.”  (Pet. Ex. 5.)  The doctor noted vascular testing revealed vasospasm in both hands with no evidence of upper extremity arterial occlusive disease.  On February 12, Dr. Bengston opined the diagnosis of chronic regional pain syndrome (CRPS) was a possibility, although the employee did not have a full blown picture of that.  The doctor took the employee off work for three weeks.  On March 5, Dr. Bengston noted the employee’s left hand was cooler than the right but he was unable to distinguish any other signs of autonomic dysfunction.  The doctor kept the employee off work.  On April 15, 2004, Dr. Elkin diagnosed RSD with vasospasm.

In June 2004, the employee was seen by Dr. Oxentenko at the Gunderson Lutheran Medical Center for a second opinion.  On examination, the doctor found no true weakness in the left arm, normal range of motion of the wrist and no change in color, temperature or skin condition between the two arms.  Dr. Oxentenko stated he did not know what was causing the employee’s pain.  The doctor felt it was unlikely the employee had complex regional pain syndrome as there was no color change, temperature change, atrophy, dystrophic changes or contractures.

Dr. Ian McPhail at the Vascular Center of the Mayo Clinic saw the employee on June 30, 2004, on referral from Dr. Elkin.  On examination, the doctor noted the employee’s left hand was dusky, mottled, cool and clammy compared to the right but with a reasonable range of motion.  The doctor diagnosed vasospasm as a component of chronic pain syndrome involving the employee’s left hand and wrist since the October 2003 personal injury.  On July 15, Dr. Elkin diagnosed RSD with vasospasm and restricted the employee from working at temperatures below 60 degrees.  In August 2004, Dr. Elkin assigned a ten pound lifting restriction.  On August 31, Dr. Bengston diagnosed left upper extremity pain dysfunction of uncertain etiology.  The doctor stated; “As she has seen a number of practitioners and apparently there has always been some talk of CRPS as the underlying etiology.  I do not see any clear indication for CRPS and I have never considered that the diagnosis.”  (Pet. Ex. 5.)

Dr. Levine re-examined the employee in September 2004.  On examination, he noted coolness, mottling and tenderness but no swelling of the left hand.  His diagnosis was vasospasm of the left hand with a component of CRPS or RSD.  The doctor noted the employee’s subjective complaints were greater than her objective findings.  Dr. Levine opined it was doubtful that lifting the milk crates caused the vasospasm, and stated the employee had not reached MMI.
Dr. Elkin re-examined the employee on September 23, 2004, and diagnosed probable RSD.  Dr. Bengston’s diagnosis remained left upper extremity pain dysfunction.  Dr. Peter Wilson with the Mayo Pain Clinic diagnosed left wrist strain with CRPS.  A bone scan in October 2004, showed possible early signs of reflex sympathetic dystrophy, and Dr. Donelan diagnosed probable CRPS in the left wrist and forearm.  Thereafter, Dr. Gilbert Wong at the Mayo Pain Clinic evaluated the employee and diagnosed chronic left distal upper extremity and hand pain with symptoms suggestive of possible CRPS.  In December, Dr. Brault with the Mayo Hand Clinic diagnosed left hand pain of unknown etiology and concluded the employee was suffering from a chronic pain syndrome.  In January 2005, Dr. Elkin diagnosed probable complex regional pain syndrome stating:

Dr. Mark Fischer examined the employee in June 2005, at the request of her attorney.  Dr. Fischer obtained a history from the employee, reviewed her medical records and performed a physical examination.  His diagnosis was diffuse pain of undetermined etiology with some characteristics of sympathetic dystrophy.  The doctor referred to the disability schedules for reflex sympathetic dystrophy^[1] and noted that dyshidrosis and altered skin color and altered temperature changes were not observed or documented in the medical records.  He further stated that edema, osteoporosis on plain film radiograph, reduced passive range of motion in contiguous or contained joints and local alteration of skin texture were not present.  Based upon the diagnostic criteria of the rule, Dr. Fischer concluded the employee qualified only for a low to intermediate probability of RSD.  The doctor, however, ascribed the condition of the employee’s left arm to her work injury, recommended permanent restrictions, and opined the employee had reached MMI.  With respect to permanent partial disability, the doctor stated the employee did not meet any of the criteria for loss of function for sensory or range of motion changes.  He stated the employee had mild to moderate generalized weakness and met some of the criteria for RSD but did not have five of the criteria as required by the rule.  Nonetheless, Dr. Fischer opined the employee did have permanent dysfunction of the left arm which he stated had been consistently documented.  He concluded that since the employee’s function was better than the mild category of reflex sympathetic dystrophy,^[2] a seven percent permanent partial disability rating was appropriate.

By report dated September 14, 2005, Dr. Elkin stated his present diagnosis was complex regional pain syndrome.  The doctor assigned restrictions of lifting no more than five pounds with the left arm, ten pounds with the right arm, and no more than five minutes of exposure to cold in 65 degree or less temperature.

Dr. Levine reviewed Dr. Fischer’s report and by report dated October 17, 2005, stated his opinion had not changed.  The doctor stated the mechanism of injury was not consistent with the employee’s symptoms, and he saw no connection between the injury and the employee’s development of RSD or vasospasm.  Dr. Levine concluded the employee had permanent restrictions due to her left arm condition but stated the restrictions were for subjective symptoms, not objective findings or diagnosis.

By report dated January 20, 2006, Dr. Elkin stated:

Following the hearing, Dr. Levine was asked to consider the restrictions placed upon  the employee by Dr. Elkin in his January 2006 report.  By letter dated February 8, 2006, Dr. Levine stated:

Kurt Lidke, a qualified rehabilitation consultant (QRC) with the Vocational Rehabilitation Unit of the State of Minnesota, met with the employee in March 2005 and found her eligible for rehabilitation services.  A rehabilitation plan was developed on April 5, 2005.  On August 23, 2005, the employee began a job as a cashier for Kmart in Winona, Minnesota, earing $7.25 per hour and working 20 to 25 hours a week.  Mr. Lidke concluded this job was a permanent position and was within the employee’s restrictions.  In December 2005, the rehabilitation plan was closed.  After she took the job at Kmart, the employee stopped any job search.

Michael Kahnke, a qualified rehabilitation consultant, performed an independent vocational evaluation of the employee in December 2005.  Mr. Kahnke concluded that, based on the employee’s prior work experience and education, she was vocationally suited for general office or customer service type positions and could expect to earn $9.00 to $12.00 an hour within her labor market.  The QRC concluded the employee did not perform a diligent job search prior to commencing the employment with Kmart.

The employee’s claim for benefits was heard by a compensation judge.  Following a hearing, the judge found the employee sustained a personal injury to her left wrist on October 14, 2003, resulting in mild RSD of the left arm and requiring permanent work restrictions including no lifting over ten pounds, no more than five minutes of cold exposure in 65 degrees or less, eight hours of work per day, 30 hours per week and no more than 16 miles of driving one way to and from work.  The compensation judge awarded temporary total disability benefits from February 12 through April 30, 2004, from November 20, 2004 through June 26, 2005, and from July 21 through August 23, 2005.  The compensation judge awarded temporary partial disability benefits from and after August 24, 2005, based on the employee’s earnings at Kmart.  Finally, the compensation judge awarded the employee seven percent whole body disability as a Weber rating^[3] for mild RSD under Minn. R. 5223.0410, subp. 7.A.  The employer appeals.

The appellants first argue the employee’s October 14, 2003, injury was a minor incident in a long history of left arm problems commencing in 1995.  They assert the employee’s symptoms were the same before and after her 2003 injury.  The mechanism of injury, the appellants argue, lifting five light plastic milk crates, was too minor to cause the levels of pain complained of by the employee.  For these reasons, the appellants contend the compensation judge’s finding that the employee sustained a permanent injury is unsupported by substantial evidence and must be reversed.  We are not persuaded.

The employee experienced medical problems with her left hand prior to October 2003.  In October 1995, she was seen at the Mayo Clinic with a complaint of left hand and wrist swelling since September 26, 1995, after cutting pizzas repetitively.  The diagnosis was an overuse injury.  On June 4, 2001, the employee ran into a tree while riding an all terrain vehicle (ATV) injuring her left arm and shoulder.  She complained of pain in her shoulder and wrist with numbness into her fingertips and described a feeling of her hand being cold since the injury.  By June 18, the employee stated the numbness had resolved but she continued to have left shoulder pain and noted her left arm was occasionally cold when compared to the right, particularly with exposure to cold.  The diagnosis was post-traumatic left shoulder pain and the employee was treated with ultrasound to the left shoulder.

Although the employee had left wrist problems prior to her personal injury, there is no record of any treatment to the employee’s left wrist following the ATV accident.  On July 31, 2001, Dr. Elkin noted the employee’s left arm injury was improved and “her hand is now all better.”  (Pet. Ex. 5.)  The employee testified that following the ATV accident, her left wrist problems resolved.  Accordingly, the compensation judge could reasonably conclude the employee’s prior left arm problems resolved prior to October 2003.

The employee testified that following her October 2003, injury she had excruciating pain in her left hand with a lack of mobility and an inability to grasp items.  Admittedly, the mechanism of injury was minor and Dr. Levine opined it could not have caused the employee’s symptoms.  Drs. Elkin and Fischer, on the other hand, opined the October 2003 incident caused a permanent injury.  This evidence substantially supports the compensation judge’s conclusion that the employee’s October 2003 injury was work-related and permanent.

The appellants next argue the employee’s October 14, 2003, injury was at most a minor wrist strain and ganglion cyst which did not result in RSD.  Further, the employee never exhibited other symptoms associated with RSD such as changes in color, texture, hydration or unusual hair or nail growth.  Accordingly, the appellants contend the compensation judge’s finding that the employee’s injury caused mild RSD is clearly erroneous and unsupported by substantial evidence.

There is merit to the appellants’ arguments.  Under Minn. R. 5223.0410, subp. 7, a diagnosis of reflex sympathetic dystrophy is deemed to occur in a member if at least five of the following conditions exist concurrently: edema, local skin color change of red or purple, osteoporosis in underlying bony structures demonstrated by radiograph, local dyshidrosis, local abnormality of skin temperature regulations, reduced passive range of motion in contiguous or contained joints, local alterations of skin texture of smooth or shinny, or typical findings of reflex sympathetic dystrophy on bone scan.  Dr. Fisher, upon whom the compensation judge relied, noted the employee met some of the criteria for RSD but did not have five of the criteria as required by the rule.  Dr. Bengtson concluded the employee did not have symptoms of CRPS.  Dr. Levine diagnosed vasospasm with a component of CRPS or RSD.  Dr. Donelan and Dr. Wong diagnosed probable CRPS.  Dr. Elkin diagnosed both RSD and CRPS.  Dr. Brault and Dr. McPhail diagnosed a chronic pain syndrome.

Clearly, there is a divergence of medical opinion as to the employee’s diagnosis.  There is no evidence of record whether RSD is a different diagnosis than CRPS or chronic pain syndrome or whether the terms are being used interchangeably.  Only RSD contains diagnostic criteria in the rules.  CRSP and chronic pain syndrome have no diagnostic criteria.  In any event, it is not the diagnosis of the injury which is the ultimate issue.  Rather, the issue is whether the employee sustained a personal injury arising out of her employment which caused an impairment of function.  Whether the diagnosis is RSD, CRPS, chronic pain syndrome or something else, Dr. Elkin and Dr. Fischer both unequivocally opined the employee sustained a personal injury to her left wrist on October 14, 2003, which resulted in the need for permanent restrictions.  We vacate the compensation judge’s conclusion that the employee has RSD as a result of her personal injury because the doctors do not agree the employee has RSD and there is no evidence the employee meets that requirements of Minn. R. 5223.0410, subp. 7 A.   There is, however, ample evidentiary support for the finding that the personal injury to her left arm caused impairment of function and required permanent work restrictions.

At the hearing, appellants’ counsel objected to the introduction into evidence of the employee’s job logs (Pet. Ex. 3) and the January 20, 2006, letter from Dr. Elkin (Pet. Ex. 6.)  The appellants argue the employee’s job logs were created as early as November 2004, but were not produced during discovery although requested during the employee’s April 2005 deposition.  Dr. Elkin’s letter was written six days prior to hearing and first disclosed to the appellants’ attorney at the hearing.  The compensation judge’s admission of these documents, the appellants assert, prejudiced their ability to defend the claim and they should not have been admitted into evidence.  We disagree.

A compensation judge has wide discretion regarding the admissibility of evidence.  To warrant a reversal, the compensation judge’s ruling on the admissibility of evidence must be prejudicial as well as erroneous.  Keiser v. Dick Lind Heating Co., slip op. (W.C.C.A. Nov. 22, 1996).  With respect to the job logs, the appellants’ counsel had the opportunity to cross examine the employee and her QRC regarding the job logs and review them with their vocational expert at the hearing.  We fail to see how the late production of the job logs prejudiced the appellants’ job search defenses.  In Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992), the supreme court reversed a compensation judge’s exclusion of a late medical report.  The court stated the report should have been received into evidence and the record held open to allow the employer an opportunity to respond.  In this case, the compensation judge allowed the appellant’s attorney 30 days to submit a supplemental report.  Dr. Levine’s February 8, 2006, report was admitted as Respondent Exhibit E.  Accordingly, we find no prejudice in the compensation judge’s rulings, and they are affirmed.

The compensation judge awarded temporary total disability benefits from November 20, 2004, through June 26, 2005.  The appellants appeal the award of benefits and contend the employee’s job search from November 20, 2004, through April 30, 2005, was not diligent.  During this time, the employee resided in Spring Valley, Minnesota, a town with a population of approximately 2,000 persons.  The employee testified she restricted her job search to employers no more than 16 miles from her home.  The appellants argue the employee was then under no driving restrictions and should have expanded her job search.  For these reasons, the appellants contend the compensation judge’s award of benefits is clearly erroneous and must be reversed.  We disagree.

The employee met with a QRC on March 29, 2005, and a rehabilitation plan was developed on April 5, 2005.  Prior to March 29, 2005, the employee received no rehabilitation assistance.  The absence of professional rehabilitation assistance does not relieve the employee of the burden of proving the diligence of a job search, but it is an element to be considered in evaluating the diligence of a job search.  Mattson v. State, Dep’t of Public Safety, 48 W.C.D. 77 (W.C.C.A. 1992).  The employee testified that turning the steering wheel of her car increased her wrist pain and left her physically exhausted.  This limited the employee’s ability to drive any significant distance and to job search.  Although the driving restrictions were not confirmed in writing by Dr. Elkin until January 20, 2006, the compensation judge concluded the employee’s ability to drive had been limited since November 2004.

The employee’s job search logs indicate approximately 20 employer contacts from November through January 14, 2005, and approximately 28 contacts between February 1 and April 29, 2005.  (Pet. Ex. 3.)  These contacts covered employers in Spring Valley, Stewartville, Wykoff and Preston, Minnesota.  The compensation judge concluded the employee’s job search was “minimally reasonable and diligent, taking into consideration the lack of rehabilitation assistance prior to April 2005 [sic], the employee’s limited labor market, the employee’s difficulty with driving, and the fact that the employee had to share a vehicle with her husband, who worked in Winona.”  (Mem. at 10).  While the compensation judge certainly could have reached a different conclusion regarding the employee’s job search during this period, we can not conclude the decision was clearly erroneous in view of all the evidence.  Accordingly, the award of benefits for this period is affirmed.

The employee was enrolled in a pain management program at the Mayo Clinic from May 5 through May 26, 2005.  The appellant concedes the employee is entitled to temporary total disability benefits during this period.  The appellant, however, contends the employee’s job search from April 30 through May 5, and from May 26 through June 26, 2005, was not diligent.  The employee acknowledged she performed no job search during this period of time, primarily because she and her husband were preparing to move from Spring Valley to Winona, Minnesota.  They completed the move on June 26, 2005.  While it may have been reasonable not to perform a job search in the community from which the employee was leaving, some form of job search in the Winona area could have satisfied the job search requirement.  Since the employee made no job search, the award of temporary total disability benefits from April 30 through May 4, and from May 26 through June 26, 2005, must be reversed.

The appellants next contend the employee’s job search from July 21 through August 22, 2005, was not diligent.  They argue the employee purposefully limited her job search and her QRC did not properly evaluate her transferrable skills.  Accordingly, the appellant contends the award of total disability benefits must be reversed.  We are not persuaded.

The employee’s job logs referenced 19 employer contacts in the Winona area from July 21 through August 20, 2005.  The employee eventually found a job at K-Mart in Winona, Minnesota, which she began on August 24, 2005.  Although the employee’s job search was minimal, she was successful in finding employment.  On this record, we can not conclude the compensation judge’s award of temporary total disability for this one month period was clearly erroneous.  Accordingly, the award of benefits is affirmed.

The appellants appeal the compensation judge’s award of a seven percent permanent partial disability under Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).  They contend that the employee does not qualify for a rating under the RSD schedule, Minn. R. 5223.0410, subp. 7, because she fails to satisfy five of the diagnostic criteria of the rule.  The appellants assert that where an employee’s medical condition is specifically rated by the schedules, an additional rating under Weber is inappropriate.  Finn v. Homecrest Indus., Inc., 61 W.C.D. 534 (W.C.C.A. 2001).  A Weber rating is not permitted where the schedules address the employee’s condition and results in a 0 percent rating.  Mann v. Grand Rapids Med. Assoc., slip op. (W.C.C.A. Apr. 7, 1999).  Accordingly, the appellants contend the compensation judge’s award of permanency benefits is legally erroneous.

We have vacated the compensation judge’s finding that the employee has RSD.  The question remains, however, whether the employee has objective findings of functional impairment that would qualify the employee for a permanent disability award.  Several doctors, including the independent examiner, noted the employee’s left hand showed mottling and was colder to touch than the right.  Vascular testing revealed vasospasm in the left hand.  A bone scan in October 2004 showed some mild decreased perfusion in the left wrist.  Dr. Fischer and Dr. Levine found tenderness in the first dorsal compartment of the employee’s left wrist.  Dr. Fischer and Dr. Elkin imposed permanent lifting, driving and cold exposure restrictions.  Dr. Levine agreed the employee should avoid exposure to cold below 60 degrees with a ten pound lifting restriction.  There exists substantial evidence to support a finding that the employee demonstrates objective findings of functional impairment.

Minn. Stat. § 176.105(1)(c) provides:

While the employee may not qualify for a diagnosis of RSD under the rules, the employee does have functional impairment due to her personal injury for which she is entitled to an award of permanent disability benefits.  Minn. R. 5223.0410, subp. 7, dealing with RSD is a reasonable choice for the employee’s unrated injury.  Dr. Fischer opined the employee’s function was better than the mild category of RSD, and concluded a seven percent permanent disability rating was appropriate.  Dr. Fischer’s opinion was adequately founded and the compensation judge could reasonably rely upon it.  Accordingly, the award of permanent partial disability benefits is affirmed.

The compensation judge adopted Dr. Elkin’s restrictions as outlined in his letter of January 20, 2006.  These restrictions included a maximum of 30 hours of work a week, eight hours a day with a 16 mile driving limitation.  The appellants assert restrictions imposed by Dr. Elkin are inaccurate.  They contend the employee’s left wrist condition improved in 2005, and there was no need for any driving restriction.  Further, Dr. Elkin did not explain why he limited the employee’s driving in January 2006, but not before.  The appellants argue Dr. Elkin’s January 2006 letter, is a “rubber stamp on the employee’s restrictions written at the request of the employee’s attorney for the sole purpose of helping the employee’s attorney at the hearing.”  (Appellant’s Brief, p. 42.)  We find no merit to these arguments.  Dr. Elkin treated the employee over a long period of time and clearly was competent to render an expert opinion.  Since Dr. Elkin’s opinions regarding the employee’s restrictions were adequately founded, the compensation judge could reasonably rely upon and adopt that opinion.  While Dr. Levine had a different opinion regarding the employee’s restrictions, it is the function of the compensation judge to resolve conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).

The appellants next contend the employee’s wages at K-Mart of $7.25 per hour for 20 to 30 hours per week do not represent her earning capacity.  The appellants assert, first, the cashiering job at K-Mart was beyond the employee’s restrictions and second, the wage was too low given the employee’s restrictions and transferrable skills.  Accordingly, the appellants contend the award of temporary partial disability benefits was clearly erroneous and must be reversed.

In his September 14, 2005, report, Dr. Elkin assigned a lifting restriction of no more than five pounds with the employee’s left arm.  Mr. Kahnke testified the employee’s K-Mart job requires repetitive movement and occasional lifting of over five pounds with her left arm.  Accordingly, the appellants contend the employee’s K-Mart job exceeds her restrictions requiring a reversal of the temporary partial disability benefit award.  We disagree.  The employee’s QRC, Kurt Lidke, felt the K-Mart job was appropriate.  The employee testified that, in general, she is able to perform the job.  The fact that the employee may occasionally exceed her restrictions at the job does not compel a determination that the job is not an accurate reflection of the employee’s earning capacity.

The appellants next argue the employee’s wages at K-Mart are below her true earning capacity.  Mr. Kahnke testified the employee was vocationally suited for general office or customer service type positions earning between $9 and $12 per hour.  The employee discontinued her job search after obtaining the job at K-Mart.  The appellants contend the employee is voluntarily underemployed and the award of temporary partial disability benefits should be reversed.

Actual concrete evidence of earnings creates a presumption of earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 324 (1960).  To establish an earning capacity different from the employee’s actual wages, an employer must show something more than a theoretical possibility of a position or a wage.  Patterson v. Denny’s Restaurant, 42 W.C.D. 868 (Minn. 1989).

Initially, the employee’s position at K-Mart was temporary, but following a probationary period the employee’s job was made permanent.  Mr. Lidke testified the employer worked with the employee to modify the job to accommodate her restrictions and allowed the employee to set the number of hours she wanted to work.  This included, Mr. Lidke testified, the opportunity for the employee to cut back her hours if her symptoms flared up.  Based upon these considerations, Mr. Lidke concluded the K-Mart job was appropriate for the employee.

Mr. Kahnke, on the other hand, opined the employee had transferrable skills in the fields of retail sales as a manager or supervisor, cashier or secretary.  He opined $7.25 per hour was a low wage given the employee’s skills and ability.  A labor market survey performed by Mr. Kahnke in December 2005, identified 31 different positions in the Winona-La Crosse area that paid from $7.00 to $15.56 an hour.  This survey was, however, based upon the assumption that the employee could work full-time.  Mr. Kahnke testified that it would take some additional exploration to determine whether general office or customer service jobs were available on a part-time basis.  Mr. Kahnke further assumed a 50 mile driving radius in his labor market survey.  One of the jobs identified by Mr. Kahnke was as a legal secretary and several required computer experience with various types of software.  The employee testified she has no experience as a legal secretary, is unable to type 40 words per minute and has only basic computer skills.

Determinations of earning capacity are factual in nature.  Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989).  It is the function of the compensation judge to determine the employee’s earning capacity.  Noll v.Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989).  There is merit to the appellant’s argument that the employee is underemployed.  The issue on appeal, however, is not whether the evidence will support a different result but whether substantial evidence supports the compensation judge’s decision.  Where the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the compensation judge’s findings must be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Findings of fact should not be disturbed “unless they are clearly erroneous in the sense that they are manifest the 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).  In this case, we can not conclude the compensation judge’s factual findings are clearly erroneous nor are we left with a definite and firm conviction that a mistake was committed.  Accordingly, the compensation judge’s award of temporary partial disability benefits is affirmed.