Independent School District #877 and its insurer, RTW, Inc. [RTW], appeal the compensation judge’s award of temporary partial disability benefits, and the apportionment of liability made by the compensation judge.  Independent School District #877, self-insured with claims administered by Berkley Risk Administrators Company [Berkley] cross appeals the award of temporary partial disability and the compensation judge’s apportionment of liability.  Both Berkley and RTW argue on appeal that because of equipment malfunction during the hearing, testimony at the hearing was not preserved and the record is insufficient for review by this court.  They contend this matter must be remanded for a new hearing.  We find sufficient record for review and affirm the compensation judge on the merits of the case.

Charlene Keck began working for Independent School District #877, located in Buffalo, Minnesota, as a custodian in 1990.  During her employment at the school district, the employee sustained a number of work-related injuries.

Between October 2002 and February 2004, the employee had a number of injuries involving both of her wrists and both of her shoulders.  She had right carpal tunnel release and injection for trigger finger to her right middle finger in June 2003 and left carpal tunnel release in October 2004.  In January 2005, she had surgery on her right shoulder performed by Dr. Gary Wyard, a procedure described as debridement of a partial supraspinatus tear and arthroscopic decompression.  In March 2005, Dr. Wyard performed an open repair of a full thickness rotator cuff tear as well as bursectomy, acromioplasty, and distal clavicle excision on the left shoulder.  Primary liability for these injuries and treatment was ultimately accepted by the school district.  Claims for these injuries were administered by Berkley.

On April 6, 2006, the employee sustained an injury to her right knee when she twisted it as she was vacuuming at the school.  In November 2006, Dr. Bryan O’Neill performed arthroscopic surgery on the right knee, a partial medial meniscectomy and debridement of the medial femoral condoyle.  Primary liability for this injury and treatment was accepted by the school district and its insurer, RTW.

The employee lost her job with the school district in July 2006.  In December 2006, the employee began working with QRC Greg Irle.  Mr. Irle has been the employee’s QRC since that time.  In April 2007, the employee found a part-time job as a custodian with Service Master that paid her less than her wage in April 2006.

The employee made a claim for temporary partial disability benefits after April 30, 2007, against RTW for the April 6, 2006, injury.  The employee’s claim was heard by Compensation Harold W. Schultz, II, on October 26, 2007.  In his Findings and Order of December 28, 2007, the compensation judge awarded temporary partial disability benefits from April 30, 2007, through September 26, 2007, finding that after that date, the work injury was not a substantial contributing factor in any wage loss.  The employee appealed the partial denial of temporary partial disability benefits.  We affirmed the compensation judge’s decision.

The employee subsequently filed a claim against both Berkley and RTW seeking ongoing temporary partial disability benefits after October 27, 2007.  RTW filed a claim for reimbursement against Berkley for rehabilitation benefits it had paid under a temporary order and for benefits paid to the employee beginning in 2007.  Claims were heard by Compensation Judge Schultz on October 12, 2010.  At the hearing, the compensation judge listened to the testimony of Mr. Irle, the employee, and Lynn Hjelmeland, a QRC who evaluated the employee on behalf of Berkley.  In addition to this testimony, the compensation judge considered documentary evidence submitted by the employee, including medical records from Twin Cities Orthopedics, Northwest Orthopedic Surgeons, Buffalo Clinic, Buffie Chiropractic, Dr. Jeffrey Husband, Dr. Randall Norgard, and Dr. Tilok Ghose, as well as job search records and status reports from the QRC.  Berkley introduced reports from Drs. Ghose, Husband and Wyard.  In addition to payment records, RTW submitted a report and a deposition of Vincent Kahnke, an independent vocation expert [IVE] who provided a vocational assessment of the employee for RTW.

The compensation judge issued his Findings and Order on December 13, 2010.  The compensation judge made 48 findings of fact based upon the evidence he considered.  He concluded the employee had restrictions on her employment as the result of her right knee and left shoulder injuries, that the employee had a reduction of her earning capacity as the result of those injuries, that the employee did not engage in a diligent job search from October 26, 2007, through January 1, 2008, and was not entitled to temporary partial disability for that period of time.  He further found that the employee had cooperated with rehabilitation after January 1, 2008, and was entitled to temporary partial disability benefits after that date.  The compensation judge also ordered Berkley to reimburse RTW 50% of rehabilitation services and 50% of the award of temporary partial disability benefits.

RTW appealed the award of temporary partial disability benefits, apportionment of liability for benefits, and denial of its claim for attorney fees against Berkley.^[2]  Berkley cross-appealed the award of temporary partial disability benefits and the order requiring it to partially reimburse RTW for rehabilitation expenses and wage loss benefits.  After the appeal and cross-appeal were filed, it was discovered that the recording of the hearing had failed and there was no record of the testimony.  Compensation Judge Schultz prepared a Reconstruction of the Record using his notes dated March 23, 2011.  On April 7, 2011, this court was advised that the recording equipment at the hearing had malfunctioned and the testimony of the three witnesses at the hearing had not been preserved.

The court issued an Order on April 7, 2011, ordering a statement of the proceedings to be prepared pursuant to the procedures set forth in Moulzolf v. Pierz Marine Inc., 51 W.C.D. 397 (W.C.C.A. 1994).  In accordance with this order, the parties submitted proposed statements of the proceedings and the compensation judge issued a Reconstruction of the Record on June 13, 2011.  RTW and Berkley subsequently have claimed the reconstruction to be inaccurate and insufficient to serve as a basis for this court’s review.  They argue the case should be remanded for a new hearing.

The recording equipment at the hearing failed and no transcript exists of the testimony presented at the hearing.  Following the appeal and cross-appeal, the compensation judge prepared what he identified as a “reconstruction” of the record from his notes.  Subsequent to this court’s order, the parties submitted statements of the proceedings and the compensation judge issued a revised reconstruction which serves as the record in the present appeal.

The procedure followed by the compensation judge in the present case was in compliance with our decision in Moulzolf v. Pierz Marine Inc., 51 W.C.D. 397 (W.C.C.A. 1994).  In that case, the testimony of two of the five witnesses was not recorded and the issue was whether there was a sufficient record for review.  Finding no specific provision in the Workers’ Compensation statues or rules, we adopted the procedures set out in Minn. R. Civ. App. Pro. 110.03.  Each party prepares a statement of the proceedings and the compensation judge then adopts all or part of the statements and issues a reconstruction of the record.  The employee, RTW, and Berkley each prepared multi-paged statements and the compensation judge’s reconstruction incorporated most of those statements.

Berkley, the cross-appellant, argues that Moulzolf is distinguishable from the present case because in Moulzolf, only some of the witness testimony was lost and in the present case, no witness testimony was preserved at all.  However, we have affirmed the process of reconstruction of the record in two cases in which none of the testimony had been prepared.  See Wohlwend v. Independent Sch. Dist. #709, slip op. (W.C.C.A. Jan. 29, 1998); Franson v. Special Sch. Dist. #1, 62 W.C.D. 561 (W.C.C.A. 2002).

The question for this court is not the percentage of the hearing that was preserved or the number of witnesses recorded but rather “whether the question on appeal can be adequately presented without the missing portion of the transcript.”  The court must be able to “determine what the nature of the evidence is, how it relates to the question on appeal, what its relative probative value is, and the extent to which it can be reconstructed from other sources.”  Soukup v. City of Sleepy Eye, 281 Minn. 144, 144, 161 N.W.2d 36, 37 (1968).

The complaints of RTW and Berkley as to the deficiencies in the record are virtually identical.  They state that the compensation judge failed to note admissions by the employee on the deficiency of her job search and admissions by the QRC on his failure to adequately communicate with the parties, including not advising that the employee was going to interviews in jeans and T-shirts.  RTW also states that the QRC’s admission that he acted as an “advocate” for the employee was not noted by the compensation judge.

We disagree with these assertions.  The compensation judge wrote a very detailed reconstruction of the record, totaling more than 8 pages.  In that reconstruction, we find ample discussion of testimony as to the employee’s job search and whether the job search was adequate.  The compensation judge’s discussion of the QRC’s testimony also covered the points raised by RTW and Berkley, including noting that “Irle feels an obligation to the employee beyond performing as a neutral party.”  In large part, the complaints here are not really that the compensation judge omitted evidence from the record but that the compensation judge did not accept the conclusions from that evidence that were argued by RTW and Berkley.

In this case, in addition to the testimony which was summarized by the compensation judge, there are extensive records dealing with the question of job search, including the QRC’s reports and the report and deposition testimony of IVE Kahnke.  There are also a number of IME reports and treatment records of the employee.  Taking all of this evidence together, we conclude that an adequate record exists for this court to review the appeal and cross-appeal.  We turn to a consideration of the issues.

The compensation judge awarded temporary partial disability benefits to the employee from January 1, 2008, through the date of hearing and continuing.  RTW and Berkley contend on appeal that the compensation judge erred in making this award.

To be entitled to temporary partial disability benefits, an employee must demonstrate a work-related disability and an actual loss of earning capacity that is causally related to the disability.  Skelley v. Lucent Tech., 66 W.C.D. 379 (W.C.C.A. 2006).  Generally, the employee’s actual earnings in post-injury employment represent the employee’s earning capacity but that presumption may be rebutted by the employee by evidence of actual employment available to the employee that would pay a higher wage.  Skelley at p. 383.

We consider first the question of whether the employee has a work-related disability.  Treatment for the employee’s bilateral shoulder problems has been provided by Dr. Gary Wyard.  In December 2007, Dr. Wyard placed restrictions on the employee, advising no reaching above the shoulders and no more than 30 thirty hours of work per week.  Dr. Wyard also prescribed Vicodin for the employee for her shoulder pain and the employee continued to take that medication as of the date of hearing.

In July 2008, Dr. Wyard performed a cortisone injection in the employee’s left shoulder but the employee testified she did not have much relief from the procedure.  In April 2009, Dr. Wyard saw the employee again and recommended no lifting or carrying over 10 pounds and limited overhead use of her arms and no reaching above shoulder level.  More cortisone injections in the left shoulder were done in April 2009 and in May 2010.  In August 2010, Dr. Wyard saw the employee, recommended physical therapy and placed what he referred to as permanent restrictions of no lifting or carrying over 10 pounds.

Treatment for the employee’s knee has been provided by Dr. Bryan O’Neil.  After performing surgery, Dr. O’Neil recommended that the employee use a knee brace.  In August 2008, the QRC reported that the employee was experiencing increased knee pain and was wearing a knee brace all of the time.  In February 2009, the employee had a cortisone injection in her right knee because of increased pain that she noted especially while walking or using stairs.  No specific work restrictions were provided by Dr. O’Neil other than generally to avoid climbing stairs.  The employee testified that she continued to use the brace on a daily basis.

The employee testified that she has daily pain in both her shoulders and her knee.  Her shoulder pain is typically at a level of 5 on a 10 point scale, although at some times the pain will go to level 7 or 8.  Her knee pain is generally at a 4 or 5 level.  She uses a knee brace and tries to avoid climbing stairs as much as possible.  A review of the employee’s medical records demonstrates that the employee’s reports of her symptoms and limitations were consistent over time.

RTW had an independent medical examination for evaluation of the employee’s knee injury.  Dr. Randall Norgard saw the employee on May 5, 2007, and concluded there were no objective findings and no restrictions were necessary.  Dr. Tilok Ghose evaluated the employee’s shoulder condition at the request of Berkley.  His opinion was that the only restriction necessary was for the employee to avoid overhead work with her left arm.

The compensation judge accepted the employee’s testimony and the conclusions of her treating doctors that the employee had work-related disabilities as the result of her shoulder and knee injuries that adversely affected her ability to be employed.  We find substantial evidence, as indicated above, supports that determination.

RTW and Berkley both argue that their injury alone does not disable the employee in any way.  The question for the compensation judge was whether the combined effects of both injuries, not a single injury alone, resulted in a restriction on the employee’s ability to work.  Second, as we have just noted, although contrary evidence was presented, the compensation judge chose to accept the evidence on this point as presented by the employee.

We turn then to the question of whether the employee establishes a loss of earning capacity related to her injuries.  The compensation judge concluded the evidence supported that determination but RTW and Berkley raise a number of arguments opposing this conclusion.

The first argument is that the employee has no loss of earning capacity because she had returned to work with the employer after her injuries and her injuries were not a factor in the end of her employment there.  However, there is no evidence that employment with the school district was available at any time during the period of claimed disability.  An earning capacity may not be imputed to the employee based on employment which is no longer available to the employee.  Serra v. Hanna Mining Co., 65 W.C.D. 532 (W.C.C.A. 2005).

The second argument is that the employee failed to engage in a diligent job search and that, as a result, her part-time employment should not be used as a measure of earning capacity.

Since, during at least part of the time when temporary partial disability benefits were awarded, the employee was working part time, even though she had been released to work full time, the employee had an obligation to make a diligent job search.  Kunferman v. Ford Motor Co., 55 W.C.D. 564 (W.C.C.A. 1996).  “Whether an injured employee makes a reasonably diligent search for employment is a question of fact which must be upheld unless manifestly contrary to the evidence.”  Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987).  Generally, when an employee is receiving rehabilitation services, the issue is whether the employee is making a good faith effort to cooperate with those services.  Mayer v. Erickson Decorators, 372 N.W.2d 729, 38 W.C.D. 107 (Minn. 1985).  Finally, we have stated that testimony as to earning capacity based on hypothetical jobs and theoretical wages may not serve as the basis for a compensation judge’s decision.  Hoover v. ISD #84, No. WC11-5244 (W.C.C.A. June 29, 2011).

The compensation judge found in the present case that the employee was restricted to a work week of 30 hours from January 1, 2008, to May 11, 2010, accepting the restrictions set out by Dr. Wyard.  As of May 11, 2010, Dr. Wyard stated that he agreed with Dr. Ghose that the employee could work full time.

The employee continued her employment with Service Master as a custodian or janitor after the first hearing in October 2007.  The employee continued to work with QRC Irle after the first hearing and was engaged in job search from then on.  The employee was working the number of hours allowed by Dr. Wyard but she and the QRC were looking for work that paid more or had benefits.  The types of work looked for were consistent with the employee’s past history; assembly work, property management, and janitorial work.

In early 2008, the employee was promoted to supervisor and job search was suspended.  Because of economic conditions, the employee’s hours decreased in the latter part of 2008.  The employee began job search again in December 2008 because of the loss of work time at Service Master.  The QRC’s reports reflected that the employee’s job search was hindered by the poor state of the economy.

In April 2010, the employee found a second job as a custodian working for another employer, Clearwater Cleaners.  This job provided her with another 12 hours of work per week.  Even after the second job was found, the employee continued job search with the help of her QRC.  The QRC’s last report before the hearing was dated September 25, 2010, and he noted that the employee was working a total of about 30 hours a week between both jobs.

The QRC testified at the hearing that since the earlier hearing the employee had twenty interviews, had sent out 98 resumes, and he and the employee had made 738 employer contacts, with most of those contacts being made by the QRC.  The QRC also testified that the employee had minimal computer skills, did not have a working computer, and that much of contemporary job search is done on the internet.  He testified the employee’s job search was hindered as a result of these factors.  QRC Irle also stated that he had recommended vocational testing but that this additional service had been denied by the insurer.

Berkley had the employee and her vocational efforts evaluated by Lynn Hjelmeland, a QRC.  Ms. Hjelmeland testified that she thought the employee should change the focus of her job search from janitorial work to personal care attendant and food preparation work, jobs that Ms. Hjelmeland said would pay in the $11 to $12 per hour range.  We note from our review of the record that the employee had applied for personal care attendant jobs but was denied those positions because of her lack of experience.

RTW had the employee evaluated by Vincent Kahnke.  Mr. Kahnke is a QRC, prepared a report dated September 16, 2010, and testified by deposition.  His opinion was that the employee had not done a diligent job search in that she had relied too much on her QRC’s help and had not made sufficient personal contacts with employers.  Mr. Kahnke also testified that, based on the employee’s transferrable skills, she had an earning capacity at $15 per hour.  Mr. Kahnke did not identify any specific jobs that paid that amount and that were available to the employee.  Instead, he referred to types of work that he said were available in her region.

In considering the adequacy of the employee’s job search, we note from the record that neither IVE took into account that the employee was employed during her job search.  It is not reasonable, we believe, to expect the employee to engage in a full-time job search in addition to her part-time employment.  Also, neither IVE commented on the fact that the employee found another job in her job search.  It would seem that in considering the adequacy of job search, some weight should be placed on success in that job search.

Given these considerations and considering the record as a whole, we conclude substantial evidence exists to support the compensation judge’s decision.  The decision on this issue is affirmed.

RTW paid for rehabilitation services under a temporary order served and filed April 7, 2009.  In July 2009, RTW filed a petition for contribution against Berkley, seeking reimbursement for benefits it had paid.  The compensation judge found the employee’s reduction in earning capacity was due equally to the work injuries covered by Berkley and the work injuries covered by RTW.  He awarded reimbursement to RTW at 50% of the cost of the rehabilitation services and 50% of the award of temporary partial disability benefits adjusted pursuant to Kirchner.^[3]  RTW has appealed this determination and Berkley has cross-appealed.

RTW argues that the 2006 knee injury was not disabling and, accordingly, any loss of earning capacity and need for rehabilitation services was not due to the knee injury.  RTW also argues that there was no expert opinion apportioning liability and, accordingly, no basis for the compensation judge’s decision.  Berkley contends the shoulder and carpel tunnel conditions were not disabling and, accordingly, any loss in earning capacity or need for rehabilitation services was not due to the employee’s shoulder or carpal tunnel conditions.  In addition, Berkley argues that it should not have to pay for any part of rehabilitation services provided to the employee when “QRC Irle in no way provided services relating to the shoulder or carpal tunnel.”

We note first of all that equitable apportionment is a question of fact for the compensation judge and is not necessarily subject to precise formula or to an expert opinion.  Schlemmer v. Lehmann Woodworks, slip op. (W.C.C.A. Mar. 3, 2003).  The QRC and the employee testified as to the restrictions faced by the employee in her search for employment and it is clear from that testimony as well as from the reports of the QRC that limitations imposed by the shoulder injuries and by the knee injury were both significant factors in hindering her job search.  Since both injuries contributed to the employee’s wage loss and need for rehabilitation services, apportionment of liability was appropriate.  The apportionment determination made by the compensation judge is reasonable given the evidence here and it is affirmed.