The employee appeals from the compensation judge’s determination that he was not entitled to temporary total compensation under Minn. Stat. § 176.101, subd. 3(j) (1986).  We reverse.

Michael A. Meyer was employed by the Pillsbury Company at a weekly wage of $226.85 when he sustained a work injury to his left foot on July 17, 1987.  A forklift ran over his foot and a degloving injury to his heel occurred.  The employee, whose date of birth is July 16, 1969, was 18 on the day of his injury.  In 1989, the parties settled the employee’s claims on a to-date basis.

The employee was convicted of criminal sexual conduct in 1990.  According to the employee’s testimony at the hearing, he spent two years in prison and “was petitioned for civil commitment in 1995.”  He has successfully completed the sexual offender program and currently is in the “reintegration portion” of the program at St. Peter Regional Treatment Center.  The employee testified that he is able to make short trips outside of the center but otherwise must remain at the center.  There is no other evidence in the record concerning the employee’s present status.

As of April 2007, the employee was employed by River Valley Industries, an outside employer that hires residents of the treatment center.  The employee worked at the treatment center for this company.  He was employed as a grinder, removing flashing from molded aluminum parts.  He worked about 30 hours a week and was paid $6.15 an hour.

The employee had surgery on his left foot in 1988 but had continuing problems, especially with weight-bearing activities.  In November 2006, the employee came under the care of the Fairview University Medical Center.  The employee had grafting surgeries done on April 25, 2007, and June 18, 2007, and was not allowed to return to work by his surgeon until July 23, 2007, “in order to protect the grafts and facilitate the healing process by non-weight bearing.”  Pillsbury and its insurer, St. Paul Travelers, accepted responsibility for the surgery and paid medical charges related to this procedure.

The employee filed a claim petition in June 2007, seeking temporary total compensation from April 25, 2007, to July 23, 2007, and temporary partial compensation for a period of time thereafter.  The claim petition was heard by Compensation Judge Patricia Milun on February 21, 2008.  In her findings and order, the compensation judge denied the employee’s claims.  With respect to the claim for temporary total compensation, the compensation judge determined that the employee was not eligible for those benefits because he was not working a suitable job when he became medically unable to work.  The compensation judge also denied the employee’s claims for temporary partial disability benefits.  The employee appeals from the denial of temporary total compensation.

Although there was no stipulation on this issue, the parties appear to be in agreement that the employee was medically unable to work from April 25, 2007, to July 23, 2007, due to the surgeries for his work injury.  The dispute before the compensation judge and before this court is whether the employee is entitled to temporary total compensation under Minn. Stat. § 176.101, subd. 3(j).  That section, added to the statute by the 1983 amendments and repealed in 1995, provided in relevant part, “If the employee has started the job offered under subd. 3(e) and is medically unable to continue at that job because of the injury, that employee shall receive temporary total compensation.”

The Minnesota Supreme Court considered the application of Minn. Stat. § 176.101, subd. 3(j), in O’Mara v. State, University of Minn., 501 N.W.2d 603, 607, 48 W.C.D. 483, 489 (Minn. 1993).  The court noted that while the statute had consequences for employees who had accepted or rejected a suitable job under Minn. Stat. § 176.101, subd. 3(e), the statute did not “address the plight of workers who have not received an offer of “3(e)” employment within 90 days after reaching MMI.”  In a previous decision, the court had held that this “silence of the act” did not preclude an award of temporary partial disability.  The O’Mara Court stated,

The O’Mara decision was followed by Wills v. Kratz Farm, 509 N.W.2d 162, 49 W.C.D. 417 (Minn. 1993).  In Wills, the court held that 3(j) benefits were available to an employee who had been laid off from a 3(e) job and who was not working at the time the medical inability to work began.

The compensation judge denied temporary total disability benefits to the employee because the employee was not employed in a suitable job when he became medically unable to work on April 25, 2007.  Given the holdings in O’Mara and Wills, we must conclude that the compensation judge erred in her determination.  O’Mara and Wills make it clear that employment in a suitable job at the time of being medically unable to work is not a prerequisite to the receipt of benefits under 3(j).

The employer and insurer, however, point to the compensation judge’s finding that the employee’s voluntary commitment to the treatment program was a withdrawal from the labor market and cite to this court’s decision in Brinkman v. Golden Valley Microwave Foods, slip op. (W.C.C.A. Sept. 7, 1994) as authority for their position.  In Brinkman, this court held that O’Mara and Wills did not apply in the case of an employee who had voluntarily left his employment to go to school and, as a result, was found to have voluntarily withdrawn from the labor market on the date when he became medically unable to work.

We do not believe Brinkman applies to the present case.  At the time the employee became medically unable to work, the employee was working at a job for an outside employer at a wage of $6.15 an hour for 30 hours a week.  He was earning a wage that was not substantially less than he was making when he was injured.  There was no evidence that this was not competitive employment.  We conclude that the employee had not withdrawn form the labor market when he became medically unable to work.

The response of the employer and insurer is to refer to our decision in Hutchins v. Champion Int’l Corp., slip op. (W.C.C.A. Apr. 30, 1996).  In Hutchins, this court affirmed a compensation judge’s denial of wage loss benefits for an injured worker who was incarcerated in prison.  The court determined that the employee’s incarceration represented a separation from the labor market that precluded an award of temporary total or temporary partial compensation.  The employer and insurer contend that under Hutchins, whether an incarcerated injured worker is employed or not and the amount of wages the injured worker might earn is irrelevant.  Incarceration bars the receipt of any wage loss benefits.  We do not agree.

First, we do not find Hutchins to be applicable in the present case.  Central to the court’s decision in Hutchins was the incarcerated employee’s inability to engage in any type of job search, a general requirement for temporary total or temporary partial compensation.  In the present case, the employee’s claim for temporary total compensation is not based on his inability to find employment after a job search.  The employee’s claim is based on Minn. Stat. § 176.101, subd. 3(j), and on the employee’s status of being medically unable to work at any employment due to the work injury.  Further, in the present case, the employee appears to have been working at a “real” job when he became medically unable to work.  Under O’Mara and Wills, an injured employee in that situation is entitled to 3j benefits.  Second, we believe there is a significant difference between the facts in the present case and the facts in Hutchins.  In contrast to Hutchins, the employee in the present case is not incarcerated in prison.  He is a resident in a rehabilitation program at a state treatment center although he is not free to leave the center and go home.

The employee seeks a general rule that an injured worker who is employed when he or she becomes medically unable to work is entitled to benefits under 3j regardless of whether or not the worker is incarcerated.  The employer and insurer seek a general rule that an incarcerated worker is never entitled to 3j benefits regardless of the worker’s employment.  We find no language in the statute which would authorize this court to create either rule and we decline to do so.  We conclude on the specific facts of this case that the compensation judge erred in denying 3j benefits to Michael Meyer.

The decision of the compensation judge is reversed and temporary total compensation from April 25, 2007, to July 23, 2007, is awarded to the employee.