SANDY R. HOOVER, Employee/Appellant, v. ISD #84, SELF-INSURED/MN SCHOOL BOARDS ASSOC. INS. TRUST/BERKLEY RISK ADM'RS. CO., Employer, and NORTHWEST IA ANESTHESIA ASSOC., BLUE CROSS BLUE SHIELD OF MINN, AAA COLLECTIONS MIDWEST, INC., SPENCER MUN. HOSP., and ORTHPEDICS PC, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 29, 2011
No. WC11-5244
HEADNOTES
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; EARNING CAPACITY – SUBSTANTIAL EVIDENCE. In order to establish an earning capacity different from actual earnings, the employer may not present testimony from a vocational expert of a hypothetical job paying a theoretical wage. Such testimony does not rebut the presumption that actual earnings are an accurate measure of the employee’s diminished earning capacity.
TEMPORARY TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Where the employee’s restrictions from a non-work condition did not change the restrictions given for the work injury, the work injury continued to be a substantial contributing factor in the employee’s continuing disability, and on a showing of cooperation with rehabilitation., the employee was entitled to temporary total disability for the period beginning with her job search and ending with the date she found and started employment within her restrictions.
Reversed.
Determined by: Stofferahn, J., Johnson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Ruth M. Harvey, Chesley, Kroon, Harvey & Carpenter, Mankato, MN, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan, & Petersen, Minneapolis, MN, for the Respondent.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s denial of her claim for temporary total and temporary partial disability compensation. We reverse.
BACKGROUND
On November 21, 1989, Sandy Hoover was employed by Independent School District #84 at its high school in Sleepy Eye, Minnesota. As she left the school that day, she slipped on ice in the school parking lot and fell on her right knee with her left knee buckling beneath her as she fell. She injured her right knee, a contusion which healed in a few weeks. Her left knee, however, has required extensive treatment, including multiple surgeries between 1990 and 2007.
Ms. Hoover began working for the employer in 1972, right after she received her bachelor’s degree in health, physical education, and coaching from Mankato State University. She taught physical education and health, coached girls' basketball, volleyball, and boys' and girls' track. Her job required her to run, kneel, squat, jump, and otherwise engage in athletics. The employee completed her master's degree in physical education in 1988 during her employment with the school district. Her weekly wage on the date of injury was $876.40.
After her work injury in November 1989, the employee continued to work for the school district through the 1991-1992 school year, although she missed time because of left knee surgeries in February and November 1990. A third left knee surgery was done in August 1991. After the surgeries, the employee continued to have daily pain and concluded she would not be able to continue coaching and teaching physical education. She asked the employer for a leave of absence to pursue a doctoral degree in psychology. The employer denied the request; instead the employee was offered an early retirement package that had been made available to other school district employees. The employee accepted the early retirement package and stopped working for the employer after the school year ended in 1992.
Ms. Hoover attended the Minnesota School of Professional Psychology at her own expense beginning in the fall of 1992. During the course of her training, she performed an internship as a counselor at the Memorial University of Newfoundland, Canada. She received a PhD in psychology in 1998. After her school program was completed, the employee accepted a job as a counselor at Lutheran Social Services at a starting salary of $31,000, a rate less than she earned at the time of injury. While employed there, she had her fourth knee surgery, a partial left knee replacement with femoral and tibial resurfacing.
In 2000, the employee left her job with Lutheran Social Services to accept a job as a school psychologist for the Root River School District in Preston, Minnesota, at a starting salary of about $47,000, higher pay than she was earning at the time of the work injury. The employee was not licensed to be a school psychologist and had a temporary license from the state to do her job until she completed additional requirements. In February 2004, the employee had a non work-related right hip replacement and then returned to her job with the Root River School District. In June 2005, the employee’s temporary license expired but she was unable to complete requirements for a permanent license because of her medical situation.
The employee had her fifth left knee surgery on June 27, 2005. Dr. Thomas Nelson performed a left patellar resurfacing and tibia polyethylene revision at Abbott Northwestern Hospital. The employee did well at first but then developed post-operative infection in the left knee. A two-stage revision of the left knee replacement was recommended. On September 27, 2005, the employee’s left knee implants were removed. On January 16, 2006, the left total knee replacement was completed. In April 2006, peroneal nerve palsy due to a rupture of her left patellar tendon was diagnosed and a quadriceps plasty, patellectomy, and repair of the extensor mechanism with patella replacement was done on May 9, 2006. In the summer of 2006, the employee reported clunking in the left knee, a flexion contracture was noted, and the employee had an excision and removal of the prosthetic device as well as reconstruction of the extensor mechanism on October 23, 2006.
Throughout this period, the employee was medically off work and was unable to fully care for herself during recovery. She moved from Preston, Minnesota, to live with her parents in Wesley, Iowa. By the time she was able to return to work, her position at Root River was no longer available.
The employee's treating physician, Dr. Alexander Pruitt, performed further reconstruction and repair of the extensor mechanism of the left knee in August 2007. By April, 2008, the employee was able to stand for up to 45 minutes without left knee swelling but she also noted at that time that she was having significant right knee pain. X-rays of the right knee revealed degenerative joint disease. A right knee injection was tried but failed to resolve the employee’s symptoms. It was determined that a right knee replacement would be performed but that this procedure would not be done until the employee had sufficiently recovered from her left knee surgeries.
On January 16, 2009, Dr. Pruitt provided permanent restrictions for the employee’s left knee. She was left with a permanent 30-degree flexion contracture in the left leg and Dr. Pruitt recommended continued therapy. Dr. Pruitt restricted her from any work that required kneeling, squatting, or lifting over 25 pounds, and advised her to alternate standing, sitting, and walking. The employee then underwent a right total knee replacement in February 2009 and was released to work on March 24, 2009. The work restrictions set by Dr. Pruitt for her right knee were the same as those given for the left knee.
The employer paid for the employee's left knee surgeries and paid for the periods of temporary total disability associated with those surgeries. Payment was denied for the right knee surgery; the employer’s position was that the right knee condition was unrelated to the 1989 work injury. The employer also discontinued temporary total disability benefits as of February 9, 2009, contending that the employee's disability after that date was due to the right knee problem.
The employee began working with a QRC, Karen Miller at Genex, in August 2005. Rehabilitation services from then until February 2009 were limited to medical management since the employee was not released to work by her doctors during that time. By February 2009, the employee had been released to return to work for her left knee condition; she was still not able to work because of the right knee surgery. Dr. Pruitt released her to begin job placement on May 1, 2009. At that time, the employee began working with Tim Morgan, a placement specialist, under the direction of her QRC.
On July 21, 2009, the employee informed her QRC that she had been offered a part-time instructor position with Iowa Lakes Community College (Iowa Lakes). She was to teach a counseling course three days a week and was to be paid $1,645 for the semester. The employee continued to look for additional work. In August 2009, the employee started an additional position at Iowa Lakes, working in the counseling office for $20 an hour. Placement services continued with a goal of locating full time employment within her limitations. In November 2009, the employee notified her QRC that she would be teaching at least three classes the following semester at Iowa Lakes and would continue to work in the counseling center. As of the date of hearing, the employee was teaching four courses at Iowa Lakes and working in the counseling center. During all periods of employment at Iowa Lakes, the employee has worked at a wage loss compared with her wage on the date of injury.
The employee testified at the hearing that she continues to have symptoms related to her left knee. She can stand no more than 20 or 30 minutes and needs to change positions frequently. When teaching, she leans against her desk. She needs to sit in chairs with arms so that she can use her arms to help in getting from a sitting to a standing position. Her symptoms increase when she walks several blocks. There has been no change in her functioning since restrictions were placed on her left knee in January 2009. The QRC testified at the hearing that the employee has always cooperated with rehabilitation.
The employee filed a claim petition in July 2009 seeking various benefits arising out of the 1989 work injury. As presented at the hearing, the employee alleged that her right knee surgery and disability were related to her work injury. She also claimed temporary total and temporary partial disability benefits after February 9, 2009.
The employee’s claims were heard by Compensation Judge Jennifer Patterson on November 19, 2010. In her Findings and Order, issued January 18, 2011, the compensation judge found that the employee had sustained a temporary injury to her right knee in 1989 that had resolved within a few weeks. The compensation judge also found that the employee’s right knee problems did not arise as a consequence of the left knee condition. The employee’s claims relating to her right knee were denied. The employee has not appealed this determination.
The compensation judge also denied the employee’s claims for temporary total and temporary partial disability benefits. She found that the employee’s ongoing wage loss was not related to the work injury because the employer had “rebutted the presumption that after-injury earnings are a measure of earning capacity.” The employee appeals from this conclusion.
DECISION
1. Temporary Partial Disability
The employee claimed temporary partial disability benefits from August 24, 2009, the date she began working at Iowa Lakes. From that date through the date of hearing, the employee had significant work restrictions from the admitted 1989 work injury. A rehabilitation plan which focused on job search began in May 2009. The employee cooperated with rehabilitation and found a job within her restrictions which paid less than her wage at the time of the work injury. There is no evidence that the employee has rejected any employment that would pay her more than she is earning at Iowa Lakes. These facts are undisputed. Absent evidence presented by the employer to rebut the presumption that actual earnings represent the employee’s earning capacity, the evidence at hearing would seem to entitle the employee to an award of temporary partial disability benefits. Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976), Skelley v. Lucent Techs., 66 W.C.D. 379 (W.C.C.A. 2006).
The compensation judge concluded that the employer had rebutted the presumption and had established that the employee’s wage loss was not related to the work injury. See Borchert v. American Spirits Graphics, 582 N.W. 2d 214, 58 W.C.D. 316 (Minn. 1986). In reaching her conclusion, the compensation judge relied on the opinions of Michael Kahnke, the employer’s vocational expert. Mr. Kahnke expressed two arguments purporting to show that the employee did not have a loss in earning capacity as the result of her work injury. First, according to Mr. Kahnke, other jobs exist which the employee would be physically able to perform and which would pay her more than her current position at Iowa Lakes. Second, he testified that the employee’s work restrictions from the 1989 injury do not affect her ability to work in her present position.
With regard to the first argument, Mr. Kahnke identified six career areas that he said were within the employee's restrictions and that he believed would provide greater earnings than the employee's current employment: certified rehabilitation counselor, certified vocational evaluator, licensed child psychologist, licensed professional counselor, licensed marriage and family counselor, and certified alcohol substance abuse counselor. He testified that the employee's PhD and experience would qualify the employee to perform one of these jobs, once she had engaged in some further study or training to qualify her for licensure in those fields. However, Mr. Kahnke did not perform a labor market survey or present any testimony on the number of these theoretical jobs which might exist in any of these areas in the northern Iowa or southern Minnesota labor market. He also did not provide evidence of any jobs in those occupations which might have been actually available at any time since the employee had been released to return to work and did not identify any actual employers who were looking for employees in those occupations.
This court has stated, “Testimony as to hypothetical positions paying hypothetical wages will not act to rebut the presumption of earning capacity raised by actual wages, and employer and insurers would be well advised to stop relying on such testimony for this purpose.” Passofaro v. Blount Constr. Co., Inc., 49 W.C.D. 535, 544 (W.C.C.A. 1993). We have reaffirmed that position a number of times in subsequent decisions. Yacoub v. American Nat’l Ins., 60 W.C.D. 168 (W.C.C.A. 2000); Ross v. Newmech Companies Inc., slip op. (W.C.C.A. Aug. 12, 2003); Kunferman v. Ford Motor Co., 65 W.C.D. 198 (W.C.C.A. 2004); Skelley v. Lucent Techs., 66 W.C.D. 379 (W.C.C.A. 2006); Lamminen v. Potlatch Corp., WC07-125 (W.C.C.A. Aug. 8, 2007). We do so again here.
Testimony by a vocational expert about possible jobs the employee might be qualified to do within her restrictions without a wage loss does not rebut the presumption that actual wages are a measure of the employee’s earning capacity. In this case, not only were these jobs speculative in that no evidence was presented as to their actual availability in the employee's labor market, but the prospect that the employee could work in those areas was even more hypothetical given that the employee does not have the qualifications for these jobs without additional training. We conclude the presumption was not rebutted by this evidence.
The second argument made by Mr. Kahnke was that the employee's restrictions did not affect her ability to work as a college educator, adjunct faculty member, or college counselor, the areas in which she was working for Iowa Lakes and the restrictions were simply irrelevant to the performance of the kinds of professional employment for which the employee was qualified as a result of her post-injury education and PhD.
We find no factual or legal basis for this argument. The employee has significant restrictions as the result of her work injury. Through her own efforts, with no assistance from the employer, the employee obtained additional education which enabled her to obtain her present position. The employee is able to do this job despite her restrictions. We fail to understand how the commendable actions of the employee should deprive her of benefits. It is, after all, the goal of rehabilitation under the workers’ compensation statute to return to employment in an “economic status as close as possible to that the employee would have enjoyed without disability.” Minn. Stat. § 176.102, subd. 1. That aim was accomplished here, not by the workers’ compensation system but by the employee herself.
The employer argues that the compensation judge’s determination on this point is supported by our decision in McQuiston v. ISD # 77, WC05-262 (W.C.C.A. April 18, 2006). We disagree. In McQuiston, the employee was a substitute clerical worker who sustained a work-related injury to her hand and wrist. The employee had reduced earnings after the injury but there was no evidence that she had to turn down work because of her injury or was unable to perform her work because of her hand and wrist problem. Rather, the evidence was that cost-saving measures instituted by the employer were responsible for the wage loss. Those facts have no similarity to the facts before us and we do not find this decision to be relevant. The employee in this case has physical restrictions which limit her participation in the labor market. The fact that she found professional employment which can accommodate those restrictions does not preclude her receipt of temporary partial disability benefits.
The compensation judge erred as a matter of law in concluding that the employer had rebutted the presumption that actual wages are an accurate measure of earning capacity. The compensation judge’s denial of temporary partial disability benefits is reversed.
2. Temporary Total Disability
The employee was released to return to work with restrictions for her left knee injury as of January 16, 2009. However, at that time the employee was unable to work at all because of her right knee condition. The employee was not released to work again until March 23, 2009. The compensation judge concluded the right knee condition was not work-related and denied temporary total disability benefits for the period of time the employee was unable to work after the right knee surgery.
The employee does not contest the denial of temporary total disability benefits associated with the right knee surgery but argues that she was entitled to temporary total disability benefits once she was released to work again. The employee points out that the restrictions for both the right knee and the left knee were identical to the restrictions for the left knee alone. According to this argument, the left knee injury continued to be a substantial contributing factor in the employee’s disability. We agree.
The employer argues that the right knee surgery was an intervening cause which broke the causal relationship between the work injury and the employee’s ongoing disability. We have held, however, that a disability due to a non work‑related condition sustained is not an intervening cause when the work injury remains a substantial contributing factor in the employee's disability. Hamm v. Marvin Windows & Doors, 64 W.C.D. 270 (W.C.C.A. 2004). Here, once the employee was released to work following her right knee surgery, her restrictions and disability were again the result of both conditions, not just the non work-related right knee condition. Her work injury was a substantial contributing factor in her restrictions and her ability to find work. She would be entitled to temporary total disability benefits on a showing of a diligent job search within those restrictions.
The uncontroverted evidence is that the employee cooperated with the rehabilitation directed by her QRC. “When an employee has rehabilitation assistance, the issue for purposes of wage loss entitlement is not so much whether the employee looked for work as whether the employee made a good faith effort to cooperate with rehabilitation efforts.” Boeder v. MN Dep’t of Natural Resources, 63 W.C.D. 634, 643 (W.C.C.A. 2003). Here, of course, the best evidence that the employee cooperated with rehabilitation and engaged in a diligent job search is the fact that she found employment within four months after she began job placement.
We reverse the compensation judge’s denial of temporary total disability benefits and award the employee temporary total disability benefits from May 1, 2009, when she began working with the job placement specialist, through August 24, 2009, when she started working at Iowa Lakes.