PATRICIA L. SEEL, Employee/Appellant, v. WAL-MART and AMERICAN HOME ASSURANCE CORP./AIG/CLAIMS MGMT., INC., Employer-Insurer.

WORKERS’ COMPENSATION COURT OF APPEALS
MAY 13, 2011

No. WC10-5218

HEADNOTES

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Substantial evidence did not support the compensation judge’s decision that the employee’s reduction in earnings was unrelated to the employee’s work injury.

Reversed.

Determined by: Wilson, J., Johnson, J., and Stofferahn, J.
Compensation Judge: Jeanne E. Knight

Attorneys: Frederick E. Kaiser and Stacey H. Sorensen, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellant.  Andrew M. Tatge, Gislason & Hunter, Mankato, MN, for the Respondents.

 

OPINION

DEBRA A. WILSON, Judge

The employee appeals from the judge’s finding that the employee’s reduction in earning capacity is not related to her work injury.  We reverse.

BACKGROUND

The employee has worked full time for Wal-Mart [the employer] since 1995.  When she began this employment, the employee had a preexisting lung disease that precluded her from working in extreme temperatures or around chemicals.  The employer was able to provide full-time work to the employee within those restrictions.  The positions she worked in included hanging clothes, unloading trucks, working in the food department, working as a floor person, and working ICS.[1]

In 2006, the employee was advised to observe additional restrictions for her lung condition, which limited her to working daytime hours.  The employer was able to provide full-time work to the employee consistent with this limitation.

The employee was working in ICS when that position was eliminated.  At that time, the employee was requested to have “open availability,” that is, to be available to work any hours during a 24-hour period.  This request conflicted with the employee’s lung restrictions, and ultimately she was assigned to a job as a food stocker, working full-time hours, from 7 a.m. to 4 p.m.[2]

On October 27, 2009, the employee was working full time as a food stocker when she sustained a work-related injury to her right arm while lifting a box.  She sought treatment from Dr. Janine Rose on November 21, 2009, and Dr. Rose eventually referred her to orthopedist Dr. David Falconer.  Due to that work injury, the employee has had restrictions on lifting, grasping, gripping, carrying, and torquing or twisting with her right arm.  Since December 14, 2009, Dr. Rose has restricted the employee to working with her left hand only.  Those restrictions were provided to the employer.

On November 24, 2009, the employer offered the employee a job as “greeter,” a Temporary Alternative Duty [T.A.D.] position, under a program for employees “with physical restrictions as a result of a work related injury.”  Her hours were to be from 10 a.m. to 4 p.m., five days per week.  The employee accepted and worked in that position.

On January 5, 2010, the employer offered the employee a job as a “may I help you associate,” also doing some “zoning and test scanning” for inventory.  This also was a T.A.D. position, and the hours were, again, 10 a.m. to 4 p.m., five days per week.  The employee accepted and worked in that job.

The employee has asked for but not been given full-time hours since the date of her injury.  In July of 2010, the employee returned to Dr. Rose, requesting that her restrictions for her lung condition be expanded to allow her to work between 6 a.m. and 6 p.m.  Dr. Rose wrote a letter to that effect.

On March 17, 2010, the employee filed a claim petition seeking temporary partial disability benefits continuing from November 21, 2009.  The matter proceeded to hearing, and, in findings and order filed on November 29, 2010, the compensation judge denied the employee’s claim, finding that the employee had failed to show that her reduction in earning capacity was causally connected to her work injury.  The employee appeals.

DECISION

In order to demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related disability; an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the work-related disability.  Dorn v. A.J. Chromy Constr. Co.,  310 Minn. 42, 245 N.W. 2d 451, 29 W.C.D. 86 (1976).  Actual  post-injury earnings create a presumption of earning capacity.  Roberts v. Motor Cargo Inc., 258 Minn. 425, 104 N.W. 2d 546, 21 W.C.D. 314 (1960).  The employer has the burden of rebutting that presumption.  Malloy v. Hokanson Plumbing, slip op. (W.C.C.A. Mar. 19, 1992).

In the instant case, there is no dispute that the employee has a work-related disability and an ability to work subject to that disability.  The employer has offered the employee two jobs within her restrictions for her right arm, and the employee has accepted and worked those jobs.  Wage records show that the employee had a reduction in earnings in all but two pay periods from November 7, 2009, through September 24, 2010.  Therefore, there is in this case a presumption that the employee’s actual earnings are representative of her earning capacity.

The presumption may be rebutted either with evidence affirmatively indicating that the employee’s ability to earn is something different from her post-injury wage, see Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989), or with other evidence affirmatively establishing that the reduction in the employee’s earnings is unrelated to the employee’s disability, see Borchert v. American Spirits Grapics, 582 N.W. 2d 214, 58 W.C.D. 316 (Minn. 1998).  Whether reduced earnings are attributable to the work injury or to some other factor is a question of fact for the compensation judge.  Dorn, 310 Minn. 42, 245 N.W. 2d 451, 29 W.C.D. 86.  On appeal, this court must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”  Minn. Stat. § 176.421, subd. 1 (2010).  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).

The compensation judge found that the employee has been working reduced hours, with a resulting wage loss, due to her lung condition and not her work injury.  On appeal, the employee contends that substantial evidence does not support this finding.  We agree that the judge’s denial of temporary partial disability benefits is unsupported by the record.

At the beginning of the hearing, counsel for the employer stated its position as follows:

[W]ere it not for the restrictions related to the employee’s chronic lung condition, which includes being unable to work any earlier than 6:00 a.m., and any later than 6:00 p.m., . . . [the employer] could find work for her within her restrictions from the work-related injury.  And, as a result, the employee cannot meet her burden of proving that the wage loss . . . is causally related to the actual work injury and the restrictions therefrom.  And, for that reason alone, the employee’s claim for temporary partial disability should be denied.”

(Emphasis added.)[3]

It is undisputed that the employee is currently limited to working between the hours of 6 a.m. and 6 p.m. because of her lung condition. The compensation judge found that “[b]oth the store manager and the personnel manager testified that there were no full-time jobs available between 6 a.m. and 6 p.m.  The personnel manager indicated there would be jobs with 40 hours per week available to the employee if she could work until 7 p.m.”  Substantial evidence does not support this finding.  Mr. Nelson testified that there is full-time work available in the 6 a.m. to 6 p.m. time frame, but “you have to sign up for it.”  He further testified that, if the employee could work outside of the hours of 6 a.m. to 6 p.m., it would be possible for her to get full-time hours in the T.A.D. program.  Ms. McCormick did not testify that there are no full-time jobs available between 6 a.m. and 6 p.m.  Rather, she merely answered “yes” to the question, “if the employee’s availability opened up so that she could work to even 7:00 o’clock at night would you be able to find full time employment at Wal-Mart for her to work either in a permanent or Temporary Alternative Duty position that would give her above her average weekly wage at the time of the injury?”

In her memorandum, the compensation judge explained

After the work injury occurred, the employer, which is a very large corporation, changed the hours for its workers so that more jobs took place during the early morning hours before 6 AM and extended other shifts to end at 7 PM. . . . The end result is that she [the employee] is precluded from working 40 hours per week as a result of her lung condition, not as a result of her work injury.

Again, the judge’s conclusion to this effect is not supported by substantial evidence in the record.  While there was testimony from the store manager and the personnel manager that the food stocker duties were moved to overnight hours after the employee’s work injury, there was no testimony that the employer had changed the hours of all of its workers or that it had moved more jobs to hours outside of the employee’s time restrictions.  No evidence was submitted that the employer’s employee structure changed so as to eliminate full-time work for any employee during the 6 a.m. to 6 p.m. time period.

The testimony of Mr. Nelson and the written job offers establish that the employee is currently being offered positions only under the T.A.D. program.  Only six positions/job codes were identified as available to the employee within that program.  The employee is in the T.A.D. program because of the restrictions related to her right arm use.  The employee also testified that those restrictions prevent her from performing the jobs she held before her work injury.[4]  The employee has established that she sustained a loss in earning capacity causally related to her work injury.

The employee had restrictions on her hours at the time of her work injury.  She had been working in ICS, and, when those duties were moved to overnight, she was asked to have open availability.  In spite of her inability to honor that request, she was given a job as a food stocker within her hours restriction.[5]  While the job that the employee had on the date of injury is no longer available during daytime hours, the employer presented no evidence establishing that there were no other full-time jobs available within the employee’s hours restriction.  The employer’s argument that the employee could be working full-time with her right arm restrictions, but for her lung restrictions, is not persuasive.  She had the lung restrictions before the work injury and she has them now.  The only thing that has changed is that she now has restrictions on right arm use that limit the jobs that she can perform.

An employee’s work-related disability need not be the sole cause of the employee’s wage loss.  Salmon v. Wheelabrator Frye, 409 N.W.2d 455, 40 W.C.D., 117 (Minn. 1987).  Clearly, the restrictions on the employee’s right arm use are a substantial contributing cause of her inability to obtain full-time work with this employer.  The compensation judge’s findings to the contrary are reversed, and the employee is awarded temporary partial disability benefits, as claimed.


[1] The employee described this job involved work in receiving, stocking shelves, and doing inventory, as well as various “different things.”

[2] According to an unappealed finding.  However, store manager Duane Nelson testified that the employee worked from 5 a.m. to 2 p.m.

[3] In its appeal brief, the employer argues that the employee “self-limited” her hours to 7 a.m. to 4 p.m. and that the employee should have submitted job logs, the testimony of a QRC, or other evidence to establish that “she could not find work at Wal-Mart or elsewhere were it not for her lung condition.”  These arguments were not made at the time of hearing and are not properly before this court on appeal.

[4] The employer contends that the employee testified that she could perform her pre-injury job, despite the work injury.  While the employee did state that at one point in her testimony, she subsequently testified that she would have to do those jobs with one arm, that she would not be able to do the lifting required with only one arm, and that her arm restrictions limit the type of work she can do for the employer.

[5] While the employer disputes the employee’s contention that the employer “accommodated” the employee’s restriction on hours prior to the work injury, the evidence in view of the entire record establishes otherwise.