DECEMBER 18, 2012

No. WC12-5459


TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.  Substantial evidence supports the compensation judge’s determination that the employee’s failure to engage in a diligent job search rebutted the presumption that her actual earnings were an accurate measure of her earning capacity and the compensation judge’s denial of the employee’s claim for temporary partial disability benefits.


Determined by:  Stofferahn, J., Johnson, J., and Milun, C.J.
Compensation Judge:  Cheryl LeClair-Sommer

Attorneys:  Martin T. Montilino, Law Offices of Martin T. Montilino, Minneapolis, MN, for the Appellant.  Timothy P. Jung and Amy E. Lanser, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Respondents.




The employee appeals from the compensation judge's denial of temporary partial disability compensation for various periods.  We affirm.


The employee, Nicolette Arbach, began working for the Stevens County Ambulance Service as a part-time emergency medical technician (EMT) in 2001, initially working on an on-call basis.  In 2003 she completed a CPR training course and added EMT instruction to her employment duties.  In 2005 she obtained an RN certification and began working a second job as a nurse.  In 2007, Ms. Arbach was offered a job as a full-time training coordinator with Stevens County.  She discontinued her second job in nursing at that time, but continued to work as a paramedic on Mondays, alternate weekends, and additional shifts as needed by the employer.

On September 10, 2008, the employee sustained an admitted low back injury while she was demonstrating how to lower an unconscious person to the ground at a training class.  The parties stipulated that the employee's average weekly wage at the time of this injury was $1,396.83.  In an unappealed finding, the compensation judge determined that the employee worked up to 50 hours a week in her two positions with Stevens County.  (Finding 3.)

An MRI of the employee's lumbar spine on October 10, 2008, showed mild degenerative facet arthropathy at L3-4 and L4-5 and disc degeneration and bulging at L5-S1 with an associated annular tear.  The employee was treated with injections and physical therapy.  Following an epidural steroid injection at L5 and S1 on November 25, 2008, the employee reported significant improvement of her low back pain and resolution of the pain radiating down her left leg.  On December 30, 2008, Ms. Arbach was given work restrictions by her treating doctor with no overhead lifting greater than 15 pounds, carrying over 40 pounds, or repetitive lifting over 30 pounds.  The restrictions were to last until a projected recheck in 4 to 6 weeks.  The employee did not return for the recheck, and no further restrictions were imposed until after the employee's second injury on November 16, 2009.

After the 2008 work injury, the employee was off work entirely for about three weeks.  She then returned to work at her training coordinator duties but was no longer capable of paramedic work.  In April 2009, Ms. Arbach took a part-time second job at the Stevens Community Medical Center.  Wage records from the medical center from May 17, 2009, to the date of the 2009 injury show that the employee earned in excess of $3,000.00 in her second job.

On November 16, 2009, the employee sustained a second injury to her low back in her job with as a training coordinator while reaching into a cabinet packing medical equipment.  She heard a "pop" in her low back and experienced severe pain down the left leg.  The employee was eventually diagnosed with a herniated disc at L5-S1.

The parties have stipulated that the employee's average weekly wage on this second date of injury was $1,277.68, representing earnings from a combination of her full-time training coordinator job and her second, part-time job as a nurse.

The employee was off work due to this injury until December 21, 2009, when she was able to return to work in her training coordinator job.  However, her restrictions prevented working in the nursing job with Stevens Community Medical Center, and also prevented her from working as a paramedic.

The employee’s treatment for her second injury consisted of conservative care, including epidural steroid injections and physical therapy.  In May 2010, the employee’s treating doctor limited her to frequent lifting up to 25 pounds and occasional lifting up to 40 pounds.  Ms. Arbach was referred to Dr. Thomas Balfanz in November 2010.  He recommended a program of physical therapy and strengthening that the employee completed.  In January 2011, Dr. Balfanz allowed her to work with a lifting limit of up to 50 pounds occasionally; in February 2011, he concluded Ms. Arbach was at maximum medical improvement.  None of the restrictions provided to Ms. Arbach by her doctors discuss the hours of work she is capable of performing.

Shortly after the employee returned to her training coordinator job in December 2009, the Stevens County Ambulance Service was closed and the county contracted for ambulance services with RFW Enterprises. The employee was hired by RFW Enterprises as its training coordinator, but at a pay rate which was about $10,000 per year below that which she had earned with the employer.  The employee left the job with RFW Enterprises and accepted a full-time job as an EMS-Paramedic Educator for North Memorial Health Care system in August 2010.  Ms. Arbach continued to work full time in this position as of the date of the hearing.  She claimed an ongoing wage loss of about $200.00 per pay period.

The employee filed a claim petition in August 2011, claiming various benefits arising out of her two injuries while employed by Stevens County.  The employee’s claims were heard by Compensation Judge Cheryl LeClair-Sommer on April 20, 2012.  At the hearing, the employee’s attorney identified the employee’s claims as being for 12 percent permanent partial disability and temporary partial disability from September 10, 2008, through August 30, 2010, and from August 31, 2010, to the date of hearing and continuing.

In her findings and order issued May 31, 2012, the compensation judge awarded the claim for permanent partial disability.  She also found that the employer had paid temporary partial disability for the 2008 injury from September 12, 2008, through October 6, 2008, and from October 22, 2008, through November 7, 2008.  Temporary total disability from October 6, 2008, through October 21, 2008, had also been paid.  The employee’s claim for benefits arising out of the first injury was for temporary partial disability from November 8, 2008, until the second injury on November 16, 2009.  After the second injury in 2009, temporary partial disability had been paid from January 1, 2010, through August 31, 2010.  The employee’s claim arising out of the 2009 injury was for temporary partial disability benefits from September 1, 2010, to the date of hearing and continuing.  The compensation judge denied the employee’s claims for temporary partial disability benefits and the employee has appealed.


The compensation judge concluded the employee failed to establish by a preponderance of the evidence that she had a reduction in earning capacity as a result of her injuries in 2008 and 2009 so as to entitle her to temporary partial disability benefits.  Specifically, the compensation judge found that the employee had not conducted a diligent search for employment from September 10, 2008, to the date of hearing and found that the employee’s earnings from her employment during that period were not an accurate measure of her earning capacity.

On appeal, the employee argues that substantial evidence does not support the compensation judge’s conclusion on this issue.  The employee contends that the uncontroverted evidence demonstrates that the employee had restrictions on her ability to be employed that would not allow her to do the EMT work she had done for Stevens County.  Despite her work restrictions, she found employment within her restrictions and she contends that her current earnings are a fair measure of her earning capacity, entitling her to temporary partial disability benefits.

As a general rule, actual earnings are presumed to be an accurate reflection of an employee’s earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Yvonne v. Super One Foods, 70 W.C.D. 654 (W.C.C.A. 2010).  The presumption is rebuttable, however, and a failure to conduct a diligent job search may rebut the presumption.  Lehman v. Dakota Growers Pasta Co., slip op. (W.C.C.A. September 30, 2003).  The question of whether an employee has a diminution in earning capacity as the result of a work injury and is entitled to temporary partial disability benefits is one of fact for the compensation judge and is to be affirmed by this court if the decision is supported by substantial evidence.  Minn. Stat. § 176.421, subd. 1, Noll v. Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989).

In Pacyga v. FMC Corp., 581 N.W.2d 859, 58 W.C.D. 373 (Minn. 1998), the employee’s earnings when he was injured included significant overtime pay.  When he returned to work for the employer, he worked only 40 hours a week, although there were no restrictions from his doctors as to the hours to be worked.  The compensation judge denied the employee’s claim for temporary partial disability and this court reversed on the basis of the principle set out in Roberts.  This court’s decision was reversed, with the supreme court noting that determining whether the presumption set out in Roberts had been rebutted was a question of fact for the compensation judge.

In her memorandum, the compensation judge reviewed the evidence that led to her conclusion that the employee’s earnings did not represent her earning capacity so as to entitle her to temporary partial disability benefits.  The compensation judge noted first of all that the employee’s wage on the dates of both injuries dates was based on significant overtime.  In September 2008, the employee was working 50 hours a week and in the period before her 2009 injury, she was averaging almost $300.00 in overtime every pay period.  There were no medical restrictions limiting the number of hours the employee could work and in May 2010, her treating her doctor had released her to lift up to 40 pounds.  The employee had demonstrated an ability to find employment despite her injuries and had significant transferrable skills to assist in her job search.  Finally, although the employee had a QRC, it did not appear from the employee’s testimony that the QRC was ever asked by the employee for assistance in reducing her ongoing wage loss.[1]  We conclude this evidence constitutes substantial evidence to support the compensation judge’s determination

The decision of the compensation judge is affirmed.

[1] The employee testified that she had a qualified rehabilitation consultant working with her, but the nature of that assistance was not made clear in the testimony.  The parties did not introduce any of the rehabilitation records, even after the compensation judge invited the employee’s attorney to do so.  We have stated numerous times that when an employee is receiving rehabilitation services, the issue is not whether the employee’s job search was diligent, but whether the employee cooperated with the rehabilitation plan.  Hoover v. Independent Sch. Dist. 84, 71 W.C.D. 633 (W.C.C.A. 2011); Boeder v. State, Dep’t of Natural Resources, 63 W.C.D. 634 (W.C.C.A. 2003); Schreiner v. Alexander Constr., 48 W.C.D. 469 (W.C.C.A. 1993).  We have no evidence here as to whether the employee cooperated with rehabilitation or if the rehabilitation plan called for additional job search by the employee.