JASON MORGAN, Employee, v. MINNESOTA WILD HOCKEY CLUB and CHUBB GROUP OF INS. COS., Employer-Insurer/Appellants.

MARCH 25, 2013

No. WC12-5505


WAGES - CALCULATION. The compensation judge did not err in accepting the calculations presented by the employer and insurer at the hearing to be a reasonable determination of the employee’s earning capacity at the time of his injury.

TEMPORARY PARTIAL DISABILTY - EARNING CAPACITY. Substantial evidence, in the form of testimony by the employee found credible by the compensation judge, supports the determination by the compensation judge that the employee had sustained a loss in earning capacity as the result of his work injury.

PREMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. The well-founded opinion of an evaluating doctor, in combination with the employee’s testimony, provides substantial evidentiary support for the compensation judge’s award of permanent partial disability benefits.


Determined by:  Stofferahn, J., Hall, J., and Milun, C.J.
Compensation Judge:  Harold W. Schultz, II

Attorneys:  Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent.  Craig A. Larsen, Cousineau McGuire, Minneapolis, MN, for the Appellants.




The employer and insurer appeal from the compensation judge’s determination of the employee’s wage on the date of injury, from the finding that the employee sustained a loss of earning capacity as the result of his injury entitling him to temporary partial disability benefits, and from the award of permanent partial disability benefits.  We affirm.


Jason Morgan was born and raised in Canada.  He began playing hockey at a young age and participated in youth hockey programs in Canada.  In 1995, he became eligible for the National Hockey League (NHL) draft and was selected by the Los Angeles Kings.

The NHL hockey season begins in the fall of each year and continues through the playoffs in the spring.  Before beginning the season, players report to the training camp for their team in the summer and generally go through fitness testing to evaluate their physical readiness to play the season.

When he began playing for the Kings, Mr. Morgan started with a minor-league team affiliated with the Kings.  Later in his first season, he was called up to play the last three games of the season in the NHL with the Kings.  Mr. Morgan stayed with the Kings for the next several seasons.  Other than playing 11 games in the NHL in the 1997-1998 season, Mr. Morgan played on minor-league teams affiliated with the Kings.

In 2003, Mr. Morgan became a free agent and he signed with the Calgary Flames.  He started with their minor-league team in the 2003-2004 season, and was then called up to play 13 games with the Flames.  According to Mr. Morgan’s testimony, if a player above a certain age has played more than a specified number of games with a team at the NHL level, he had to be placed on waivers instead of being returned to the minors.  After playing 13 games at the NHL level, Mr. Morgan was placed on waivers by the Flames and was picked up by the Nashville Predators.  He played six games for them, was placed on waivers, picked up by Calgary, and traded to the Chicago Blackhawks, all before the end of the season.

In 2004-2005, Mr. Morgan played with the Norfolk Admirals, a minor-league affiliate of the Chicago Blackhawks.  In 2005-2006, he played with the Admirals and also played seven games with the Blackhawks.  His contract was not renewed by the Blackhawks and Mr. Morgan obtained a position with the Minnesota Wild for the 2006-2007 season.  Mr. Morgan played a number of games with the Houston Aeros, a minor-league club for the Wild, and was then called up to play with the Wild.

On November 6, 2006, Mr. Morgan was injured during a game with the San Jose Sharks.  An opposing player hip checked him and pushed him into the boards.  Mr. Morgan was hit on the right thigh and needed to leave the rink because of the pain he was experiencing in his right leg.  He received treatment from trainers at the game, but ice and wrapping the leg were not successful in relieving his symptoms.

The next day, Mr. Morgan was seen by the team doctor for the San Jose Sharks, Dr. Arthur Ting.  Dr. Ting diagnosed “expanding intramuscular hematoma, right quadriceps, with associated compartment syndrome.”  Dr. Ting did surgery the same day, a procedure he described as an “anterior quadriceps fasciotomy and evacuation of hematoma.”  When Mr. Morgan returned from California, he continued therapy with trainers from the Wild.

On December 6, 2006, the team physician for the Wild cleared Mr. Morgan to return as an NHL player.  The trainer notes from that time indicated Mr. Morgan still had proximal stiffness in the leg, atrophy in his quadriceps, and some limited range of motion.  Mr. Morgan returned to the Houston Aeros and finished the season there.

At the time of his injury, Mr. Morgan was employed by the Wild under what was referred to as a “two-way contract.”  Under that contract, when Mr. Morgan played for the Aeros, he was paid a salary of $125,000.00 per year, and when he played in the NHL, his salary was $450,000.00.

Mr. Morgan was released by the Wild after the 2006-2007 season.  He signed with the Washington Capitals and went to their training camp that summer.  Mr. Morgan was not able to complete the fitness test for the Capitals.  He testified that he was unable to do some of the vigorous testing that was done to test the power of his legs.  Mr. Morgan had been a center in his playing time and was often called on when his team was defending against a power play.  Mr. Morgan stated that since his injury, he has lost what he referred to as the ability to make explosive maneuvers using the strength of his legs. He also noticed a tendency for his leg to give out on him when skating.

In the 2007-2008 season, Mr. Morgan played in Hershey, Pennsylvania, on a minor-league team for the Capitals.  He then played two seasons in Europe, and then returned to play in minor-league hockey in the United States.  In 2011-2012, Mr. Morgan started as a player for the Stockton Thunder, a minor-league team in California.  While playing, he experienced a number of small muscle tears in his injured leg, stopped playing, and moved to coaching for the Thunder.  Mr. Morgan testified that it was his hope and plan to be able to move into coaching so that he could stay in professional hockey.  Mr. Morgan is presently 36 years old and was a free agent at the time of the hearing, looking for another team.

Mr. Morgan was evaluated at the request of his attorney by Dr. Gregory Shankman on April 30, 2010, on the issue of permanent partial disability.  Dr. Shankman, “based on today’s physical examination, the medical records provided to me and the disability status with the Minnesota guidelines,” assessed two percent disability for decreased motion in abduction and adduction, two percent for loss in internal and external rotation, two percent for decreased extension and flexion, and two percent for overall decreased thigh size.

Mr. Morgan was evaluated by a physician at the request of the Wild and its insurer, Chubb Group.  He saw Dr. Michael D’Amato on May 5, 2011.  Dr. D’Amato reviewed Mr. Morgan’s history with him and conducted a physical examination.  He concluded that the November 2006 injury had not been a permanent injury, had not resulted in any permanent partial disability, and did not result in the need for any restrictions on the use of his right leg.

A claim petition filed by Mr. Morgan was heard by a compensation judge on June 5, 2012.  The compensation judge identified issues for hearing as including Mr. Morgan’s wage on the date of injury, his entitlement to temporary partial disability, and the extent, if any, of permanent partial disability.

In his findings and order of September 4, 2012, the compensation judge found that the weekly wage on the date of injury was $4,241.88, that the employee had a loss of earning capacity as the result of his injury and was entitled to temporary partial disability benefits from the last week of December 2006, and that the employee had sustained a permanent partial disability of eight percent as the result of the November 2006 injury.  The employer and insurer have appealed.


1.  Wage on the Date of Injury.

At the hearing, the employee took the position that, since he was injured while playing at the NHL level for the Wild, his wage should be based on what his salary was as an NHL player.  Using daily wage information supplied by the employer, the employee claimed a weekly wage of $12,032.10. On the issue of wage, the employer and insurer advanced two alternate arguments.  The first argument was that the employee was essentially a minor-league player who was injured after playing only four games in the NHL.  Accordingly, his wage should be based on his minor-league salary, or $2,406.42 per week.  As a second argument, the employer and insurer introduced an exhibit titled “Jason Morgan AWW Calculation” (Resp. Ex. 2).  The exhibit noted that in the 34 days before his injury, the employee had spent 24 days, or 70.59 percent of the time with the Aeros, and 10 days, or 29.41 percent of the time with the Wild.  Applying those percentages to the weekly salaries for a two-way contract resulted in a wage of $4,241.98.[1]

The “object of wage determination is to ‘arrive at a fair approximation of [the employee’s] probable future earning capacity which has been impaired or destroyed because of the injury.’”  Bradley v. Vick’s Welding, 405 N.W.2d 243, 245, 39 W.C.D. 921, 924 (Minn. 1987) quoting  Knotz v. Viking Carpet, 361 N.W.2d 872, 874, 37 W.C.D. 452 (Minn. 1985).  In his memorandum, the compensation judge quoted this language from Bradley as his guide in determining the wage in the present case.

In their brief, the employer and insurer point to specific facts in Bradley to argue that the employee’s wages from the NHL should be ignored, equating his time there to the temporary overtime in Bradley.  We disagree.  While his NHL play for the Wild proved to be for a limited period of time, in substantial part because of his injury, it is speculation to assume that Mr. Morgan would not have stayed with the Wild had his injury not occurred.  It would be an error to ignore his wage from the Wild since he was not a minor-league player at the time of his injury.  The dramatic difference between the salaries of a NHL player and a minor-league player would seem to indicate that both the employee and employer considered NHL play to require an elevated level of skill and expertise.  In its assessment of Mr. Morgan, the employer considered him to be capable of playing at that level when he was called up to play in 2006.  However it would also be an error to conclude that Mr. Morgan’s wage in the NHL was an accurate measure of his earning capacity given his previous employment history.  The compensation judge’s determination did not either unfairly overstate or unfairly understate the employee’s earning capacity as reflected in his wages.

We conclude, therefore, that the approach presented by the employer and insurer in their exhibit at the hearing and adopted by the compensation judge is a reasonable method of calculating the employee’s weekly wage, and we affirm the compensation judge’s finding on this point.  Lensegrav v. M.E.Robbinson, No. WC10-5200 (W.C.C.A. Apr. 12, 2011); Kuehn v. Vickerman Constr., Inc., No. WC05-103 (W.C.C.A. Aug. 16, 2005).

2.  Temporary Partial Disability.

An injured employee is entitled to temporary partial disability benefits when “the employee is employed, earning less than the employee’s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee’s partially disabled condition is due to the injury.”  Minn. Stat. § 176.101, subd. 2(b).  Case law refers to a requirement of “an actual loss of earning capacity that is causally related to the injury.”  Dorn v. A.J.Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).

On appeal, the employer and insurer argue that the compensation judge erred in finding that the employee had a loss of earning capacity related to the injury.  The employer and insurer note that the Wild team physician released the employee to play at the NHL level and stated that the employee was able to perform those duties as early as December 2006.  In addition, the IME, Dr. D’Amato, concluded the work injury had resolved and the employee had no physical restrictions.  Finally, the employer and insurer contend that the employee’s history demonstrates that he is essentially a minor-league hockey player, and that since his injury he has continued to be a minor-league hockey player.  All of this shows, according to their argument, that the employee has no physical restrictions from the work injury and has not suffered any loss of earning capacity.

In his findings on this issue, the compensation judge cited to the testimony of the employee.  Mr. Morgan testified he had a loss of strength and flexibility in his right leg and he lacked the ability to make “explosive” moves that had been central to his play.  The employee was not able to participate in all of the training camp exercises for the Washington Capitals at the beginning of the 2007-2008 season.  The employee told Dr. Shankman in April 2010 that it took him longer to warm up, that his leg was unstable and buckled.  He had difficulty using stairs.  Finally, the employee demonstrated at the hearing for the compensation judge’s observation that his right thigh was smaller than his left thigh.

The compensation judge found that the employee had a loss of earning capacity, clearly relying on the employee’s testimony to reach that conclusion.  A compensation judge’s determination that the employee has a continuing disability from the personal injury may be based on the employee’s testimony alone.  Brening v. Roto Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (1975); Hallila v. Lund Int’l Holding, Inc., slip op. (W.C.C.A. Nov. 25, 2002).  We see no reason in our review of the record as to why the compensation judge should have disregarded the employee’s testimony.

We affirm the compensation judge’s award of temporary partial disability benefits. [2]

3.  Permanent Partial Disability.

The compensation judge adopted the opinion of Dr. Shankman on this issue and awarded the employee eight percent permanent partial disability for his leg injury.  The employer and insurer argue on appeal that the compensation judge erred in his conclusion.  They state that Dr. D’Amato measured the employee’s range of motion in adduction, abduction, flexion, extension, and internal and external rotation, and found the results all to be within normal limits.

Essentially, the employer and insurer suggest that the employee’s condition had improved in the year between Dr. Shankman’s examination and Dr. D’Amato’s examination.  However, Dr. D’Amato’s examination was at variance with the evidence at the hearing from the employee who showed the compensation judge the atrophy in his right thigh and testified as to the restrictions and limitations he had in the use of his leg.  Given that evidence, the compensation judge did not err in deciding to adopt the opinion of Dr. Shankman over that of Dr. D’Amato.  As we have noted in other decisions, the choice between two competing medical opinions is for the compensation judge, and generally this court will affirm a decision made on the basis of that choice when the medical opinion relied upon has adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quevecor, 63 W.C.D. 566 (W.C.C.A. 2003).

The decision of the compensation judge is affirmed.

[1] Wild:  $450,000 ÷ 52 = $8,653.85 x 29.41% = $2,545.10
                 Aeros:  $125,000 ÷ 52 = $2,403.85 x 70.59% = $1,696.88
                 $2,545.10 + $1,696.88 = $4,241.98

[2] At oral argument, counsel for the employer and insurer stated that the amount of temporary partial disability benefits was not known because the employee had received a house and car in addition to his salary when he played in Europe.  The question of the amount of temporary partial disability benefits is not for this court to review since the compensation judge made no finding as to the amounts to be paid.