KENNETH C. NOBLE, Employee, v. ST. PAUL ARENA CO., LLC, and SFM, Employer-Insurer/Appellants, and CONSULTING RADIOLOGISTS, LTD., Intervenor.

APRIL 29, 2014

No. WC13-5656


EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge’s award of temporary partial disability benefits based on the employee’s actual earnings where the employee had restrictions related to his work injury, he was unable to perform his pre-injury job, there was no evidence that he failed to cooperate with his QRC, he testified that he looked for other work, and even the temporary job offered by the employer and rejected by the employee paid less than the employee’s pre-injury wage.

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence, including the recommendation of the employee’s treating physician, supported the compensation judge’s approval of recommended surgery.


Determined by:  Wilson, J., Hall, J., and Milun, C.J.
Compensation Judge:  James Kohl

Attorneys:  Gerald W. Bosch, Bosch Law Firm, St. Paul, MN, for the Respondent.  Andrew W. Lynn, Lynn, Scharfenberg & Hollick, Minneapolis, MN, for the Appellants.




The employer and insurer appeal from the judge’s decision that the employee is entitled to temporary partial disability benefits and that proposed surgery is reasonable and necessary.  We affirm.


In December of 2012, the employee was working part-time for Minnesota Hockey Ventures Group, d/b/a/ St. Paul Arena Company [the employer], as a stagehand earning $23.00 per hour for straight time and more for overtime.  He was also working part-time as a singer at Macaroni Grill.  His combined weekly wage from these jobs was $511.44.

On December 9, 2012, the employee sustained a work-related injury to his low back while lifting a heavy piece of equipment in his job for the employer.  When seen at St. Joseph’s Hospital that night, he reported pain in his low back radiating into his buttocks, with throbbing pain throughout both legs.  He was taken off work.

The employee subsequently treated with Dr. Jennifer Huebner, who diagnosed him with lumbar radiculopathy, took him off work, and recommended an MRI.  The MRI, performed on December 14, 2012, was interpreted as showing mild degenerative disc disease between L3 and S1, mild to moderate foraminal narrowing, greater on the right at L4-5 and greater on the left at L5-S1, and right L4 and left L5 nerve root impingement with no significant central canal stenosis.

Dr. Paul Crowe saw the employee on December 20, 2012.  At that time, the employee was complaining of pain in his back, radiating into both buttocks and down both legs.  Dr. Crowe noted that the employee had a positive straight leg raise test.  He stated that the MRI showed no operative lesion, and he recommended a right L4-5 epidural steroid injection, which was administered on January 14, 2013.

On January 22, 2013, Dr. Crowe noted that the employee was complaining of burning radiculopathy.  The doctor recommended additional physical therapy at Physicians Neck and Back Clinic [PNBC], where the employee was examined on March 6, 2013, by Dr. James Strum.  Dr. Strum opined that the employee’s occasional leg numbness was referred and not radicular in nature.  The employee underwent a “recheck” on March 26, 2013, with Dr. Charles Kelly, who indicated that the employee was making poor progress and was not at maximum medical improvement.  Dr. Kelly released the employee to work with a 15-pound lifting restriction and instructions to avoid repetitive stooping or bending at the waist.  The employee was to begin working a maximum of four hours a day, adding one hour per week until he reached a maximum of eight hours of work per day.

On April 17, 2013, the employer offered the employee a temporary part-time position working as “gate security” for $10.00 per hour.  The job description attached to the written offer indicated that the “average length of shift will be four hours, although longer or shorter shifts may be assigned according to availability, restrictions and need.”

The employee underwent a rehabilitation consultation on April 18, 2013, with QRC Paul Krieger.  QRC Krieger found the employee to be a qualified employee for purposes of rehabilitation assistance and stated that the goal of rehabilitation was to return the employee to work as a union stage hand.  The QRC also indicated that, should the employee be unable to return to work as a stage hand due to his low back injury, the “rehabilitation plan will need to be reassessed.”  He prepared a rehabilitation plan that called for return to work with the employer or return to work with a different employer, noting “if possible, return to work as a union stage hand.”

Maggie Hobbs, risk and treasury manager for the employer, wrote two emails to the employee’s QRC about the temporary job offer.  In the first, on April 19, 2013, she clarified that “we can be flexible and tailor the four hour shift as necessary.  This would include having [the employee’s] shifts happen conceivably when his son is in school, alleviating any concerns about day care expense.”  In the second email of May 22, 2013, Ms. Hobbs further clarified that the job offer never required the employee to work five days per week.  The employee ultimately rejected the job offer because of the hours and the pay.

The employee was seen by Dr. Huebner again on April 23, 2013, at which time she assessed him with nerve root impingement and referred him to a spine clinic.  The following month, on May 21, 2013, he was seen by Dr. Stefano Sinicropi at the Midwest Spine Institute.  At that time, the employee complained of low back pain along with bilateral buttock and posterior leg pain to the feet and into the toes.  He also had numbness and tingling in both feet.  Dr. Sinicropi diagnosed bilateral nerve root impingement, recommended a lumbar decompression, and restricted the employee to 20 pounds of lift/carry and push/pull, with avoidance of bending, twisting/turning, and kneeling/squatting.  Dr. Sinicropi also stated that the employee should be able to sit as needed and could work four hours per day, five days per week.  In September of 2013, Dr. Sinicropi opined that the work injury significantly contributed to the employee’s low back condition and need for treatment.

The employee was seen for an independent medical examination on June 13, 2013, by Dr. David Carlson.  At that time, the employee complained of constant pain in the low back and bilateral leg pain and buttock pain, especially down into the thighs.  It was Dr. Carlson’s opinion that the employee had sustained a lumbar strain on the date of injury, which had resolved as of February 12, 2013.  It was also his opinion that the proposed surgery was not reasonable, necessary, or related to the work injury, and he did not recommend restrictions.

The employee was paid temporary total disability benefits from December 10, 2012, through April 22, 2013, at which time the employer and insurer filed a notice of intention to discontinue benefits based on the employee’s alleged failure to accept a suitable job offer.  Following an administrative conference on that issue, the employer and insurer were allowed to discontinue temporary total disability benefits effective May 30, 2013.  The employee then filed an objection to discontinuance, seeking temporary partial disability benefits continuing from May 30, 2013, based on the difference between his weekly wage on the date of injury and the amount that he was earning in his part-time singing job.  The employee also filed a medical request seeking approval of the proposed surgery and a rehabilitation request seeking rehabilitation assistance.  These matters were consolidated for hearing.

In a November 25, 2013, findings and order, the compensation judge found that the employee had been temporarily partially disabled as claimed, that the proposed decompression surgery was reasonable, necessary, and causally related to the work injury, and that the employee was entitled to ongoing rehabilitation benefits.  The employer and insurer appeal.


On appeal, the Workers’ Compensation Court of Appeals 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 (2012).  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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.”  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).


1.  Temporary Partial Disability

The employer and insurer concede that “rejection of a job offer in and of itself does not preclude an injured employee from receiving temporary partial disability.”  They argue, however, that, under the circumstances of this case, a remand is necessary for reconsideration.  We are not persuaded.

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).  There must also be an actual loss of earning capacity causally related to the injury.  Dorn v. A.J. Chromy Constr. Co., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976).

In this case, the employee is employed as a part-time singer, earning less than he was making at the time of the injury.[1]  At the time of hearing, he was unable to return to work in his pre-injury job, and virtually every doctor that had treated him for his work injury had recommended restrictions on his activities.

At the time of the work injury, the employee was earning $23.00 per hour as a stage hand.  The employee now earns $10.00 per hour in his part-time singing job, and the position that the employer offered post-injury paid only $10.00 per hour as well.  The employee had only been released to work 20 hours per week, and at $10.00 per hour, the employee would have a significant wage loss and an obvious loss of earning capacity,[2] even if he had accepted the offered job.

The compensation judge found that the employee’s current restrictions are causally related to the work injury, and the employer and insurer do not argue otherwise in their brief on appeal.  Rather, the employer and insurer appear to be arguing that the employee’s current loss of earnings, based on his earnings as a part-time singer, are not reflective of his earning capacity.  However, while the offer of work in April 2012 may have qualified as physically appropriate, the offer was for temporary employment, and no evidence was submitted that the job remained available.[3]  A job no longer available to an employee has little evidentiary value for purposes of determining post-injury earning capacity.  See Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).  Actual earnings are presumptively representative of an employee’s earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 216 (1960).  The employer and insurer bear the burden of submitting adequate evidence to rebut this presumption.  Malloy v. Hokanson Plumbing, slip op. (W.C.C.A. Mar. 19, 1992).  The employer and insurer did not provide such evidence at hearing.

The employer and insurer also suggest that the employee is not entitled to temporary partial disability benefits because he was released to work but did not look for alternate employment.  We note initially that a job search is not necessarily required to establish eligibility for temporary partial disability benefits.  See Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  In addition, the employee testified that he did look for work.  Also the employee had rehabilitation assistance, and there is no evidence that he did not cooperate with rehabilitation or that he was ever directed by the QRC to do a job search.  See, e.g., Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).

Substantial evidence establishes that the employee is entitled to temporary partial disability benefits commencing on May 30, 2013, and we affirm the judge’s finding to that effect.

2.  Reasonableness and Necessity of Surgery

The employee sought approval for the lumbar decompression surgery recommended by Dr. Sinicropi.  The compensation judge found that the recommended surgery was causally related to the work injury and was reasonable and necessary treatment.  The employer and insurer do not argue that the compensation judge should have adopted the opinion of Dr. Carlson rather than Dr. Sinicropi, but they contend, instead, that “the extraordinary circumstances in this matter require an extraordinary review.”  Specifically, the employer and insurer contend that the employee’s understanding as to the likely results from the proposed surgery is so at odds with Dr. Sinicropi’s records that the treatment cannot be said to be consistent with sound medical practice.[4]  Therefore, they maintain, the matter should be remanded for appointment of a neutral physician.  We are not persuaded.

Dr. Sinicropi’s report of May 21, 2013, detailed the risks of the proposed surgery, including potential complications, that he had explained to the employee.  The doctor noted that the employee understood the risk of complications and the potential effect of those complications but that the employee still wanted to proceed with the surgery.  During cross examination at hearing, the attorney for the employer and insurer read from Dr. Sinicropi’s report, and the employee testified that the doctor had discussed those things with him.  And, on redirect, the employee testified that he had heard all of the potential risks involved with the surgery but that he still wished to undergo the procedure.

When a request for appointment of a neutral physician is made 30 days prior to a scheduled prehearing conference, appointment is mandatory.  Minn. Stat. § 176.155, subd. 2; Reider v. Anoka-Hennepin Sch. Dist. No. 11, 728 N.W.2d 246, 67 W.C.D. 112 (Minn. 2007).  Thereafter, a compensation judge or this court may, with or without a request, designate a neutral.  In this case, the employer and insurer first made their request at the time of hearing, so appointment is not mandatory.  The compensation judge also did not abuse his discretion in denying an appointment of a neutral, especially where the basis for the request - - the employee’s alleged misunderstanding as to possible outcome - - was not supported by substantial evidence.  We deny the request on these same grounds.  The judge’s decision is affirmed in its entirety.

[1] At hearing, the employee testified that he was originally working two nights per week as a singer but had increased to three nights per week.

[2] In addition, while the employer and insurer appealed from the judge’s finding that the employee is a qualified employee for purposes of rehabilitation, they did not brief that issue and at hearing agreed that if the judge found that the employee’s restrictions were causally related to the work injury, then they would stipulate that the employee was a “qualified employee.”

[3] The employee’s claim at hearing was for temporary partial disability benefits beginning on May 30, 2013.

[4] There is evidence indicating that the employee believes the surgery will allow him to return to work as a stagehand.