The employee appeals from the compensation judge’s determination that the employee was not entitled to temporary total disability benefits or temporary partial disability benefits between July 2011 and March 2012, because he was disabled for reasons unrelated to his work injury of July 8, 1981.  We reverse.

This case came on for hearing before the compensation judge on August 22, 2012.  By agreement of the parties, the case was submitted through written briefs and stipulated facts.

The employee, Thomas Eager, sustained an admitted low back injury while working for Haugen Transit, the employer herein, on July 8, 1981.  The workers’ compensation insurer, Liberty Mutual Insurance Company, has been paying workers’ compensation benefits ever since the employee’s 1981 injury date.  The employee has been working part time for many years, at a wage loss, for a different employer as a bus driver.  Liberty Mutual does not dispute that the employee’s injury is permanent in nature.  Nor does it dispute that the employee’s wage loss over the years at his post-injury employment has been related to the 1981 injury up to the time period in question.

The parties dispute whether the employee was entitled to temporary total disability benefits, temporary partial disability benefits, or no benefits whatsoever “from July 23, 2011, to March 9, 2012.”  During that time, the employee was unable to work at all because of a personal medical condition that was not related to his employment or his work injury.  The parties agree that the employee’s personal medical condition prevented him from performing his usual post-injury work during the period at issue.  While the employee was off work, he did not conduct a job search because his post-injury employer held his job open during the period he was unable to work because of his personal medical condition.  The employee has returned to work in the same capacity with his post-injury employer since March 9, 2012.

The employer and insurer continued to pay the employee during the period of time at issue, and the employer and insurer sought to recover those payments, which total $25,214.64.  At hearing, the compensation judge was asked to determine whether the employee was entitled to temporary total disability benefits, temporary partial benefits, or no benefits at all “from July 23, 2011, to March 9, 2012.”  In addition, the compensation judge was asked to determine whether the employer and insurer were entitled to an overpayment credit for temporary total benefits paid to the employee “from July 23, 2011, to March 9, 2012,” when the employee was totally disabled from all work because of a non-work medical condition that was unrelated to his injury.

The employee argued that pursuant to the law in effect at the time of the employee’s 1981 injury date, he was entitled to temporary total disability benefits or temporary partial disability benefits paid at the temporary total disability rate because he continued to have a decreased earning capacity caused by the work injury during the period of time at issue between July 2011 and March 2012.  Based on her interpretation of the law as it existed at the time of the employee’s 1981 injury, the compensation judge found that the employee “was not entitled to temporary total disability benefits or temporary partial disability benefits when he was disabled for the period July 23, 2011, to March 9, 2011, for reasons unrelated to the work injury.”  The compensation judge stated, “the petition for discontinuance is granted and the employer and insurer are allowed to take an overpayment credit for benefits paid from July 23, 2011, to March 9, 2012.”  The employee appeals the compensation judge’s determination.

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.”  Krovchuk v. Koch Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

The law in effect on the date of injury governs a claim for workers’ compensation benefits, and the substantive rights of an employee to compensation become fixed by the law in force at the time the compensable injury or accident occurs.  See, e.g., Yaeger v. Delano Granite Works, 250 Minn. 303, 84 N.W.2d 363, 20 W.C.D. 27 (1957).

The pertinent portion of Minn. Stat. § 176.101, subd. 2, in effect at the time of the employee’s 1981 injury read as follows:

The compensation judge stated that she “believed that under this statute some ability to work was necessary to receive temporary partial disability benefits whether at a reduced rate or at the temporary total disability rate.”  Because the employee was unable to work between July 2011 and March 2012 due to his personal medical condition, the compensation judge determined that he was totally disabled and not partially disabled during that period.  The compensation judge felt that the statue made “no provision for a situation when an employee is disabled totally from a non-work-related disability but still has disability due to the work injury.”

We conclude that the compensation judge erred in her application of the law in effect in 1981 to the facts of this case.  Although the law in place in 1981 required an employee to be “able to work,” an employee was not actually required to be employed in order to receive temporary partial disability benefits.  Patrin v. Progressive Rehab Options, 497 N.W.2d 246, 247, 48 W.C.D. 273, 274-75 (discussing the history of the Workers Compensation Act before and after the 1983 amendments); Nybeck v. H.S. Kaplan Scrap Iron, 42 W.C.D. 1169, 1173 (W.C.C.A. 1990) (citing Dorn v. A.J. Chromy Construction Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976)).  Minn. Stat. § 176.101 was substantially revised in 1983 to limit temporary partial disability benefits so that they were only payable to an employee who was employed.  Patrin, 497 N.W.2d at 247, 48 W.C.D. at 274-75 (citing Morrissey v. Country Club Markets, Inc., 430 N.W.2d 169 (Minn. 1988); Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178 (Minn. 1988); Parson v. Holman Erection Co., 428 N.W.2d 72 (Minn. 1988)).

As the Supreme Court explained in Jasnoch v. Schwab Co.:

In Grams, slip op., the employee sustained a work-related neck injury in 1976 (that injury was covered by the same statutory structure in place at the time of the 1981 injury here).  The employee then obtained part-time employment, and the employer and insurer began paying temporary partial disability benefits.  In 1983, the employee suffered a heart attack that was unrelated to his work or his work injury.  The employer and insurer stopped paying temporary partial disability benefits, arguing that the heart attack totally disabled the employee and terminated the employer and insurer’s payment obligations.  This court noted:

DeBenedet involved a median nerve injury.  33 W.C.D. at 501.  Because of continuing difficulty with her hand, the employee never returned to work.  Id. at 502-03.  Subsequent to her personal injury, the employee was diagnosed with multiple sclerosis.  Id. at 501.  However, the employee had “never recovered from her disability status related to her work injury.”  Id. at 504.  As such, “the subsequent manifestation of her multiple sclerosis condition could not be considered to be an intervening cause of her disability so as to preclude her from entitlement to workers’ compensation benefits.”  Id.

The compensation judge cited the cases of Patrin, 497 N.W.2d 246, 48 W.C.D. 273, Klasen v. American Linen, 52 W.C.D. 284 (W.C.C.A. 1994), and Leegard v. Mid-City Hotel Assocs., 44 W.C.D. 240 (W.C.C.A. 1990), summarily aff’d (Minn. Mar. 7, 1991) in support of her decision.  Those cases are distinguishable, however, because each involved subsequent injuries or conditions that prevented the employee from returning to work in any capacity.  In Klasen, for example, the employee stopped working altogether, and this court affirmed the compensation judge’s determination that the employee had stopped working for reasons unrelated to the work injury.  52 W.C.D. at 286-87, 289-90.  This court also noted that under the law before the 1983 changes, the employee may have been eligible for payment of temporary partial disability benefits at the temporary total disability rate if the employee had been released to work with restrictions related to the work injury and had conducted a reasonably diligent job search.  Id. at 290-91.  However, the employee never returned to work in any capacity after she was taken off work.  Id. at 291.  Therefore, she had “no earning capacity.”  Id.

As the compensation judge noted here, there was no dispute that the employee was able to work prior to the period in question and after the period in question.  The employee was able to return to the same post-injury employment in the same capacity once his personal medical condition was finished.  As such, his personal medical condition did not alter his ability to work or his earning capacity as related to his 1981 injury, and he continued to have that same reduction in earning capacity during the time he was off work for his personal medical condition.

“A disabling, non-work-related medical condition sustained subsequent to a work injury does not automatically constitute an intervening cause where it can be shown that the previous work injury remains a substantial contributing factor in the employee’s disability.”  Kahlstorf v. Potlatch Corp., 64 W.C.D. 407 (W.C.C.A. June 2, 2004) (citing Leegard, 44 W.C.D. at 243 and DeBenedet, 33 W.C.D. 500).  The record only establishes that the employee missed time for a personal medical condition, and this court has held that “it should not be the policy of the workers’ compensation system to penalize workers with ordinary short-term illnesses by depriving them of temporary partial disability benefits to which they would otherwise be entitled.”  Fox v. Minnesota Mining and Mfg. Co., 58 W.C.D. 45, 49 (W.C.C.A. 1998).  The stipulated facts of this case are more consistent with a temporary illness, as in the Fox case, than they are with the permanently disabling subsequent injuries or conditions involved in cases such as Klasen, Patrin, and Leegard.

After his personal medical condition resolved, the employee was able to return to work in the same post-injury employment and at the same reduced earning capacity related to his work injury.  The employee’s temporary partial disability status did not change as a result of the personal medical condition, and he did not recover from his disability status as related to his work injury.  The employee’s personal medical condition did not result in any change to the employee’s ability to earn or his physical condition as relating to his injury, and it was not an intervening cause as related to his temporary partial disability.  Therefore, the employer and insurer’s responsibility for the employee’s temporary partial disability did not end but continued during the time period at issue pursuant to the law in effect in 1981, and the compensation judge’s findings and order are reversed.