NANCY L. MIDDLESTEAD, Employee, v. RANGE REG’L HEALTH SERVS./UNIV. MED. CTR.-MESABI, SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer/Appellant, and RADIOLOGICAL ASSOCS. OF DULUTH, LTD., ESSENTIA HEALTH SMDC, and HIGHMARK BLUE SHIELD, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 3, 2015
No. WC14-5723
HEADNOTES
TEMPORARY PARTIAL DISABILITY - WORK RESTRICTIONS. The issue of whether an employee is able to return to work without restrictions is a question of fact for the compensation judge. Formal written restrictions are not required. An employee’s testimony alone may constitute sufficient evidence to support a compensation judge’s finding that the employee has a disability that restricts or limits her ability to perform work. There is substantial evidence in the record as a whole to support the conclusion that the employee has had ongoing symptoms, problems, and restrictions related to the July 21, 2010, injury, and that the effects of the injury were a substantial contributing factor to the employee’s pursuit of the lower paying positions in which she has been employed since August 15, 2011.
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. While the employee’s efforts to obtain additional education and improve her employability is commendable, the question is not whether the employee made reasonable efforts to vocationally rehabilitate herself, but whether the employee demonstrated an inability to work full time within her restrictions. The compensation judge made no specific findings addressing when, whether, and to what extent, the employee’s reduced hours and/or earnings may be attributable to her enrollment in online classes rather than to her injury-related disability, and the issue of the employee’s post-injury earning capacity is, accordingly, remanded for reconsideration.
Affirmed in part and vacated and remanded in part.
Determined by: Milun, C.J., Hall, J., and Cervantes, J.
Compensation Judge: John R. Baumgarth
Attorneys: Robert C. Falsani and Paula A. Polasky, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent. Richard L. Plagens, Lommen Abdo, P.A., Minneapolis, MN, for the Appellant.
OPINION
PATRICIA J. MILUN, Chief Judge
The self-insured employer appeals from the compensation judge’s determination that the employee had physical limitations affecting her ability to work from August 15, 2011, to the date of hearing, and from the judge’s conclusion that the employee established an actual loss of earning capacity related to her work injury from and after August 15, 2011. We affirm in part and vacate and remand in part.
BACKGROUND
The employee worked as a registered nurse (RN) in the employer’s Intensive Care Unit/Emergency Room (ICU/ER) for nearly ten years. On July 21, 2010, she sustained an admitted injury when a patient stumbled and fell into her back while attempting to arise from a commode without assistance. The employee was seen in the emergency room with complaints of mid-thoracic and left low back pain radiating into her buttocks and down the left leg. X-rays showed minimal degenerative hypertrophic spurs in the middle and lower lumbar spine. The employee was given a left sacroiliac joint injection, prescribed a muscle relaxant, and was sent home for the rest of the day.
The employee followed up the next day with Dr. Kimberly Bigelow at the Mesaba Clinic. The doctor assessed low back pain with left leg sciatica. Dr. Bigelow prescribed ibuprofen, ice and heat, a pain medication, and a muscle relaxant, and continued the employee off work. On July 30, 2010, the employee reported she was feeling a bit better, but was still having significant left sciatica symptoms. The employee began physical therapy that Monday. The doctor continued her off work for that day, and imposed restrictions of no lifting, carrying, pushing, or pulling over ten pounds occasionally, with limited bending, twisting, kneeling, squatting, standing, and sitting, beginning with a 4-hour work day on Tuesday.
The employee returned to Dr. Bigelow on August 11, 2010, stating she was doing considerably better, although sitting made her symptoms worse and caused significant buttock pain. Dr. Bigelow continued the employee’s work restrictions, additionally limiting the employee to a 6-hour day. On August 25, 2010, Dr. Bigelow received a note from physical therapy stating the employee would need one to three more sessions, but should be able to work without restrictions at that time. Dr. Bigelow noted the employee continued to have some tenderness over the left sciatic notch and discomfort over her sacroiliac joints bilaterally, but released the employee to return to work without restrictions. The employee returned to her work as an RN in the ICU/ER on August 30, 2010.
The employer paid wage loss benefits from July 22 through August 29, 2010. On September 9, 2010, the employer discontinued temporary partial disability benefits indicating the employee had returned to work on August 30, 2010, at full wage. On September 23, the employee requested a temporary reduction in hours “for personal reasons,” effective October 11, 2010. (Ex. K.)
The employee returned to Mesaba Clinic on November 16, 2010, and was seen by Dr. Mark Versich, her primary care physician. She reported an exacerbation of her back symptoms with recurrent pain in her left low back going down the left leg. The doctor authorized additional physical therapy, prescribed a prednisone burst, and released the employee to light-duty work with no lifting, carrying, pushing or pulling over ten pounds. By November 30, 2010, the employee reported about 50 percent improvement, but continued to have difficulty with any type of lifting.
On December 6, 2010, the employee returned to her position as a full-time RN. She continued to treat with Dr. Versich who noted the employee’s symptoms waxed and waned, but overall she was improving. On December 28, 2010, the employee reported she was able to do 12-hour light-duty shifts without taking much of a rest or going home early, and the doctor released the employee to return to “normal activities.” On January 18, 2011, Dr. Versich again noted improvement, although the employee continued to have mild low back and left sacroiliac joint symptoms and the doctor felt there was a good chance the employee would have another exacerbation. The employee was seen again by Dr. Versich on February 23, 2011, with intermittent lower back pain radiating into the buttock, relieved by stretching and ibuprofen for pain.
The employee testified her RN position in the ICU/ER involved lots of lifting, twisting, bending, pushing, and pulling. She stated that following the injury, she always tried to have a co-worker help her with transferring, turning, repositioning, and other heavy lifting. The employee stated that after February 2011, things went well for about a month or so, and then the pain started coming back. She did not want narcotic pain medications or more physical therapy, so she tried to keep going with ibuprofen, stretching, and home exercises. She further testified that she dumped shifts and took vacation days to reduce her hours.
In mid-July 2011, the employee requested a position change from full-time RN to an on-call, seasonal per diem RN, effective August 15, 2011. The employee testified the pain was getting to be too much, and she decided she needed to go back to school to qualify for jobs that did not involve floor nursing. The employee stated she could have worked full-time hours in the on-call position, but cut back her hours in order to take some time to recover. The employee also began online classes in August 2011 to obtain a four-year bachelor’s degree in nursing.
The employee returned to Dr. Versich on September 6, 2011, complaining of worsening pain in the left lower back and left leg, beginning about two months previously. The doctor noted the employee was very tender over the left sacroiliac joint, and recommended a sacroiliac joint injection and analgesic patches for pain. He did not provide any formal work restrictions. On October 5, 2011, Dr. Versich reported the employee was now having more pain over the left greater trochanteric region. The doctor diagnosed left-sided sciatica and greater trochanteric bursitis secondary to overcompensation, and referred the employee for additional physical therapy.
The physical therapy intake on October 10, 2011, noted that sitting, lifting, and walking quickly aggravated her symptoms. The therapist noted the employee was only working one day a week because of her pain at work and was also taking classes to get her four-year nursing degree.
The employee was seen by Dr. Versich on October 26, 2011, reporting constant and worsening pain. The doctor referred the employee for an MRI scan of the lumbar spine and prescribed a prednisone burst. Dr. Versich commented he was not providing any work restrictions at that time since the employee was working very little and wanted to wait and see how the prednisone was going to work. The November 3, 2011, MRI scan showed degenerative changes in the sacroiliac joints, and at L5-S1, without evidence of nerve root compression, significant stenosis, or any active inflammatory changes. On November 9, 2011, Dr. Versich noted improvement over the left trochanteric region, but persistent waxing and waning of the employee’s low back symptoms. He referred the employee for an L5-S1 facet joint injection and again released the employee to return to normal activities.
On November 22, 2011, rehabilitation services were initiated by QRC John Rhyner. By report dated December 5, 2011, the QRC noted the employee reported periodic flare-ups following the July 2010 injury. QRC Rhyner noted the employee had worked most of the time since her injury, but that there had been periods of time when she had not been able to work complete shifts due to ongoing discomfort. Mr. Rhyner observed the employee had resisted formal restrictions as she did not want to lose her job, and her co-workers had been helpful, allowing her to work around the heavier aspects of the job. He further noted the employee had reduced her work hours to part time due to ongoing concerns with her back and had begun to pursue an online bachelor’s degree in nursing. The employee was working about 12 hours a week at the time.
The employee continued to treat with Dr. Versich, who noted continuing back, leg, and hip symptoms. The doctor stated that if the employee did not make positive gains, he intended to transfer her care to a physical medicine and rehabilitation specialist. Formal work restrictions were provided of medium work, with no lifting over 25 pounds maximum, and no frequent lifting or carrying over 15 pounds. On December 16, 2011, Dr. Versich again noted persistent low back, buttock, and left leg pain. He indicated the employee had had a flare-up for about a week that started when she was placed in a desk job and was sitting a lot more. Dr. Versich limited the employee to 6-hour shifts, since 8- to 12-hour shifts made her worse.
QRC Rhyner reported that, on December 9, 2011, the employee stated 12 hours of work per week was all she wanted as she was doing her independent schooling. On December 13, Mr. Rhyner met with the employer’s human services representative, Ms. Brownlee, who advised him that since the employee could not do the essential job functions of the on-call position, the employer would not allow her to be on call. The possibility of a different job with the employer was discussed.
On February 9, 2012, Dr. Versich noted the employee had an appointment at the end of March with Dr. Elizabeth Weinman, a physical medicine and rehabilitation specialist. The employee felt she could work an 8-hour day with the moderate-duty restrictions, and Dr. Versich increased her work hours accordingly. As of February 27, 2012, the employee was working two 8-hour days a week, and indicated she would like to progress to three 8-hour days. QRC Rhyner reported the employee didn’t want to exceed 24 hours weekly due to her school schedule. In early March, a case manager position was identified with the employer, and the employee’s QRC encouraged her to apply for the position. The employee was offered and accepted the case manager position with an $8.00 per hour wage loss.
The employee was seen by Dr. Weinman on March 29, 2012, with complaints of chronic pain at the base of her spine, left sacroiliac area, and in the left leg, starting with the work injury on July 21, 2010. The employee reported that after returning to full-duty work, she took vacation days frequently because of the pain. Dr. Weinman reinitiated physical therapy and provided trigger point injections. Work recommendations were reviewed with the employee and QRC Rhyner. The doctor released the employee to 8-hour days, three days per week, with frequent position changes, no twisting, no more than rare bending and kneeling, rare lifting up to 25 pounds, occasional pushing or pulling up to 25 pounds, and occasional stair climbing. The employee started the case manager job on April 29, 2012. The position is permanent, and essentially sedentary, and it was anticipated the employee would gradually work towards fulltime hours.
The employee last saw Dr. Weinman on June 28, 2012. The employee reported her pain was better, but she was never pain free. According to the physical therapist, the employee seemed to have reached a plateau. On physical examination, Dr. Weinman noted tenderness of the left sacroiliac joint region, the left greater trochanter, and the left gluteal medius muscle. Dr. Weinman told the employee she had no further ideas and suggested the employee seek another provider to investigate other treatment options. The doctor stated the employee could slowly advance her hours, as tolerated. By July 21, 2012, the employee had increased to 3½ days per week.
The employee returned to Dr. Versich on August 3, 2012, stating she had reinjured herself that morning when she slipped on stairs at home, landing on her left buttock. The doctor took the employee off work for the rest of the day and authorized additional physical therapy. On August 6, 2012, Dr. Versich noted the employee was still having some spasms and had used a fair amount of muscle relaxant and pain medication over the weekend. The employee, however, had returned to her job as a case manager, and felt she could work without new restrictions. By August 15, 2012, the employee reported to Dr. Versich that physical therapy was helping, and her back was better than it had been before the exacerbation. On September 5, 2012, Dr. Versich noted the employee had changed jobs and was able to work without restrictions. Dr. Versich also emphasized that the employee needed to see another occupational medicine specialist as she was still not back to normal. On October 3, 2012, Dr. Versich observed the employee’s new position with the employer accommodated her disability. Restrictions were clarified, and the doctor released the employee to work four days a week, eight hours per day, with no lifting over 10 pounds.
The employee was seen by Dr. Brian Konowalchuk, an occupational medicine specialist, on October 30, 2012. The doctor assessed a history of chronic back pain and possibly left leg radiculopathy. The doctor was also concerned about possible intraarticular hip pathology. A left hip MRI arthrogram was performed on November 1, 2012. In a return visit on November 29, 2012, Dr. Konowalchuk indicated the MRI of the hip was generally unremarkable, as was the 2011 MRI scan of the lumbar spine. Dr. Konowalchuk concluded her examination was most consistent with left lower lumbar tenderness with muscle knotting. He also noted significant muscle weakness with hip range of motion on the left. He referred the employee for focused physical therapy for the left hip, provided a TENS unit for the low back, and prescribed Voltaren gel for pain relief.
The physical therapy intake note for December 12, 2012, noted the employee’s pain increased with prolonged sitting which was an essential activity for her current job. On January 3, 2013, Dr. Konowalchuk noted the employee’s back pain had significantly improved with the TENS unit, and her strength in the left hip was improving. The employee had six more physical therapy visits, but was discharged from Dr. Konowalchuk’s care and released to resume normal activities without specific restrictions.
On February 26, 2013, the employer’s claims adjuster advised the employee’s QRC that there was a medical report lifting all restrictions. The employee confirmed that the doctor had lifted her restrictions, but stated she was still limiting herself considerably at work. She was not doing lifting or transferring and was limiting herself to four days per week and felt that was the maximum she could do. In light of the removal of formal restrictions, QRC Rhyner closed the rehabilitation file.
The employee returned to Dr. Konowalchuk on May 23, 2013, reporting a recurrence of her back spasms. The doctor changed her medication regime, prescribing Toradol and Flexeril along with the TENS unit, and referred the employee to the SpineX program.
In August 2013, the employee began taking online courses through Kaplan University to obtain an advanced degree as a family nurse practitioner. The courses are five credits each and are scheduled to be taken two at a time over a ten-week period.
The employee participated in the SpineX program for ten weeks, through October 17, 2013. The employee was seen by Dr. Konowalchuk on that date, reporting her back pain had dissipated, although she continued to have tailbone pain and difficulty sitting for prolonged periods of time. The doctor recommended trial of a sacroiliac belt, and released the employee to return to “normal activities” with no specific restrictions other than ball sitting or an ergonomic chair as needed. The employee requested a functional capacities evaluation (FCE) to get a better handle on her limitations.
The FCE was performed on February 11-12, 2014. The employee reported partial resolution of her symptoms with persistent recurrent low back pain and left lower extremity symptoms. Work recommendations were provided which assumed an 8-hour day, 40 hours per week work schedule. Restrictions included maximum lifting waist to floor of 25 pounds, frequently 15 pounds; lifting waist to crown maximum 15-20 pounds, frequently 10 pounds; front carry maximum 30 pounds, frequently 15 pounds; pushing/pulling maximum 68 pounds; occasional (6 1/3 percent of work day) sitting - with regular posture changes, standing - with regular posture changes, walking, kneeling, stair climbing, and ladder climbing; and no crouching.
The employee was seen on February 20, 2014, by Dr. Mark Gregerson, at the request of her attorney. Dr. Gregerson noted the employee was doing light-duty case management work, interviewing patients, with no lifting. The employee reported no overall change in her chronic back and left lower extremity pain. Based on his examination and his review of the employee’s medical records, Dr. Gregerson diagnosed mild degenerative changes and musculoligamentous strain of the lumbosacral spine secondary to the July 21, 2010, work incident. The doctor opined it was medically appropriate for the employee to limit her work activities in August 2011 when she limited her duties and cut down her hours. He further opined the employee’s job change to case manager in March 2012 was medically appropriate and advisable in light of her symptoms. Dr. Gregerson agreed with the restrictions set forth in the FCE, and stated the job of nurse practitioner appeared to be within the FCE limitations.
Dr. Loren Vorlicky performed an examination of the employee at the request of the self-insured employer on March 28, 2014. In his report dated April 10, 2014, Dr. Vorlicky diagnosed lumbar spine degenerative disc disease with facet arthropathy at L5-S1 with deconditioning syndrome that appeared to have responded to the SpineX program. He opined that the July 2010 incident was a temporary exacerbation of her pre-existing lumbar degenerative condition. In his opinion, the employee’s symptoms resolved and she reached maximum medical improvement (MMI) by November 26, 2010. Dr. Vorlicky believed the employee could work without any restrictions on the type of work or the amount of hours worked, and opined that from August 2011 to the present the employee should have been able to perform her nursing duties on a full-time basis.
On April 12, 2013, the employee filed a claim petition seeking temporary partial disability benefits from August 15, 2011, to the present, along with payment of certain medical expenses. Following a hearing, in a Findings and Order served and filed June 3, 2014, the compensation judge found the employee has ongoing symptoms and limitations related to the July 21, 2010, injury; that the effects of the injury have been a substantial contributing factor to her pursuit of lower-paying alternative positions since August 15, 2011; that the inability of her medical providers to find a solution to her physical problems provides a significant impetus for her to advance her nursing career into less physically demanding positions, and that the demands involved in completing her schooling make a less burdensome work schedule attractive to the employee; and that while Dr. Konowalchuk released the employee essentially without restrictions on January 3, 2013, the doctor contemplated a release to the employee’s duties as a case manager, rather than the ICU/ER nursing position, consistent with the FCE results. The judge, accordingly, awarded temporary partial disability benefits from August 15, 2011, through the date of hearing. The self-insured employer appeals.
DECISION
1. Work restrictions from August 15, 2011, to date of hearing.
Based on his review of the evidence as a whole, the compensation judge concluded that since August 15, 2011, the employee has been unable to return to the full-time ICU/ER nursing position she occupied at the time of the work injury. The judge found the treatment records of Dr. Versich to be persuasive regarding the ongoing nature of the employee’s injury and disability, and gave substantial weight to the employee’s testimony about her inability to perform the assigned work duties of a full-time nurse.
The self-insured employer asserts there were no written medical restrictions in place in August 2011 when the employee left her full-time nursing position to go to a part-time, on-call position, and that since that time, the employee has essentially decided how much and how often she was going to work without regard to any current formal restrictions. The employer, accordingly, contends the compensation judge erred in determining that the employee had physical limitations affecting her ability to work from August of 2011 to the date of the hearing.
The issue of whether an employee is able to return to work without restrictions is a question of fact for the compensation judge.[1] Formal written restrictions are not required. An employee’s testimony alone may constitute sufficient evidence to support a compensation judge’s finding that the employee has a disability that restricts or limits her ability to perform work.[2] In this case, the compensation judge considered all of the evidence in reaching his conclusion that the employee continued to have a residual disability which entitled her to temporary partial disability benefits, including the testimony of the employee, the nature of her pre-injury job, and the medical records and opinions of her treating physicians.
Among the evidence supporting the compensation judge’s determination, we note the employee testified that after she returned to work as an RN in the ICU/ER unit following her work injury, she needed help from her co-workers with lifting, transferring, turning, and repositioning patients, and that, because of pain, she took vacation days and “dumped shifts”[3] to reduce her hours. By September 2010, she formally requested reduced hours, and then worked in a temporary, part-time position from October 11 to December 6, 2010. On November 16, Dr. Versich saw the employee for an exacerbation of her back symptoms with a recurrence of discomfort and pain in the left side of the low back going down the left leg. The doctor imposed light-duty restrictions at that time, with no lifting, carrying, pushing or pulling over ten pounds.
Although the employee thereafter showed improvement with medical treatment and physical therapy, and was able to perform longer shifts at work for some months, by July 2011, she again requested a change to a part-time, on-call position because her pain prevented her from working a full-time schedule and she had run out of vacation time. She testified that she was only able to reduce her pain enough to work if she took a few days off after each day she worked.
The employee resumed treatment with Dr. Versich on September 6, 2011, again reporting worsening pain in the left lower back and left leg, beginning about two months previously. On October 26, 2011, Dr. Versich commented the reason he was not providing formal work restrictions was that the employee was then working very little and wanted to wait and see how the prescribed prednisone burst was going to work.
In November 2011, rehabilitation services were initiated. The employee’s QRC observed the employee had resisted formal restrictions as she did not want to lose her job and her co-workers had been helpful allowing her to work around the heavier aspects of the position.
When the employee was seen by Dr. Weinman on March 29, 2012, the doctor imposed restrictions releasing the employee to 8-hour days, three days per week, with frequent position changes, no twisting, no more than rare bending and kneeling, rare lifting up to 25 pounds, occasional pushing or pulling up to 25 pounds, and occasional stair climbing.
With her QRC’s assistance, the employee was able to obtain a job with the employer as a case manager at a significantly lower hourly pay rate. On September 5, 2012, Dr. Versich recommended that the employee see an occupational medicine specialist for reassessment. On October 3, 2012, Dr. Versich noted the employee’s new position with the employer accommodated her restrictions. These restrictions were “clarified,” and the doctor released the employee to work four days a week, eight hours per day, with no lifting over ten pounds.
The employee was seen by Dr. Brian Konowalchuk, on referral from Dr. Versich, on October 30, 2012. A physical therapy intake note for December 12, 2012, noted the employee’s pain increased with prolonged sitting, which was an essential activity for her current job. On January 3, 2013, Dr. Konowalchuk discharged her from his care. While he released her to resume “normal activities” without specific restrictions, the employee testified it was her understanding that the doctor released her to return to her then current job as a case manager, four days a week.
An FCE performed in February 11-12, 2014 recommended work restrictions which assumed an 8-hour day, 40 hours per week work schedule. These included significant lifting restrictions, a restriction limiting sitting to 6 1/3 percent of the work day with regular posture changes, and further limiting standing, walking, kneeling, stair climbing, ladder climbing and crouching. The compensation judge concluded the FCE restrictions were related to the employee’s back condition and seemed to preclude the employee from returning to her former ICU/ER nursing position.
Finally, we note that Dr. Mark Gregerson, who saw the employee on February 20, 2014, opined that it had been medically appropriate for the employee to limit her work activities in August 2011, and that the employee’s job change to case manager in March 2012 was advisable in light of her symptoms.
We conclude there is substantial evidence in the record as a whole to support the conclusion that the employee has had ongoing symptoms, problems, and restrictions related to the July 21, 2010 injury, and that the effects of the injury were a substantial contributing factor to the employee’s pursuit of the lower-paying positions in which she has been employed since August 15, 2011. We, accordingly, affirm on this issue.
2. Loss of earning capacity.
At the hearing, and again on appeal, the self-insured employer contends that the employee’s earnings since August 15, 2011, are not an accurate reflection of her earning capacity. Specifically, the self-insured employer notes that at the exact same time the employee requested the part-time, on-call position, she also decided to further her education and began taking online classes to obtain her bachelor of science degree in nursing. The employer further asserts that the employee worked reduced hours in her case manager position, even though full-time work within her restrictions was available to her, solely in order to pursue an advanced degree as a family nurse practitioner. Accordingly, the self-insured employer argues the evidence does not support the conclusion that the employee established an actual loss of earning capacity causally related to her work injury from and after August 15, 2011.
In finding that the employee’s symptoms were a substantial contributing factor to her disability and that the employee was entitled to temporary partial disability benefits commencing August 15, 2011, the compensation judge found it was “clear that the demands involved in completing [the employee’s] schooling ma[d]e a less burdensome work schedule attractive to the employee” and that “the inability of the medical community to find a complete solution to her physical problems . . . provide[d] a significant impetus for her to advance her nursing career into less physically demanding positions than the ICU/ER nursing that she was engaged in on the date of her injury.”[4]
To the extent that an employee’s reduced earnings result not from the effects of the injury but from a decision to pursue further education that was not certified retraining or part of an approved rehabilitation plan, an employee is not eligible for wage loss.[5] Here, the employee testified that she applied for the part-time, on-call position, starting on August 15, 2011, in part because of her worsening pain and symptoms, and in part because she decided she needed to go back to school to qualify for jobs that did not involve floor nursing.
The employee began online nursing classes through the University of Phoenix in August 2011 to obtain a four-year bachelor of science degree in nursing.[6] Students could take one class at a time, each lasting five weeks. The employee stated that floor nurses worked 12-hour shifts and that at the time she went to on-call, there were enough hours available that she could have worked full-time, except for her worsening pain and symptoms. She testified that her decision to reduce her hours at that point had more to do with the pain she was experiencing and the difficulty of doing her job safely than her decision to go back to school.
As of February 27, 2012, the employee was working two 8-hour days a week in a light-duty position, and indicated she would like progress to three 8-hour days. At that time, QRC Rhyner reported the employee didn’t want to exceed 24 hours weekly due to her school schedule.
On March 29, 2012, the employee was seen by Dr. Weinman. The employee reported that after returning to full-duty work in 2010, she took vacation days frequently because of the pain. Dr. Weinman released the employee to 8-hour days, three days per week, with frequent position changes, no twisting, no more than rare bending and kneeling, rare lifting up to 25 pounds, occasional pushing or pulling up to 25 pounds, and occasional stair climbing.
In early March 2012, a case manager position was identified with the employer. The employee was offered and accepted the case manager position with an $8.00 per hour wage loss. The employee started the case manager job on April 29, 2012. The position was permanent, met her essentially sedentary restrictions, and it was anticipated the employee would gradually work towards full-time hours.
In July 2013, the employee began online classes through Kaplan University, intending to pursue a master of science degree as a family nurse practitioner.[7] Courses are scheduled two at a time and last ten weeks. The employee explained the program is set up so that people can work full time and complete their schooling. Her goal is to return to employment with more patient involvement.
The employee agreed that she has continued to work four days a week in the case manager position, even though work is available five days a week. She testified she could work full time if she was just working and not going to school. The employee further agreed that it was her understanding that Dr. Konowalchuk believed she could work five days a week in the case management position, and that the FCE allows 8-hour days, five days a week, with medium work restrictions.
While the employee’s efforts to obtain additional schooling and improve her employability is commendable, the question is not whether the employee made reasonable efforts to vocationally rehabilitate herself, but whether the employee demonstrated an inability to work full time within her restrictions. We have affirmed the finding that the employee has permanent work restrictions as a result of her work injury, and there is evidence that as a result of her restrictions, the employee has experienced reduced earnings attributable to the injury. However, the compensation judge made no specific findings addressing when, whether, and to what extent, the employee’s reduced work hours and/or earnings may have been attributable to her decision to pursue an advanced education rather than to her injury-related disability.[8]
For the reasons stated above, we conclude that the judge’s findings fail to fully address the factual and legal basis for his decision to award temporary partial disability benefits. We therefore vacate Finding 39 and remand the case to the compensation judge for consideration and redetermination of the earning capacity issues raised by the parties.
[1] Santiago-Clemente v. Alside Supply Ctr., No. WC12-5534 (W.C.C.A. April 16, 2013); Hiller v. Parker Hannifin, No. WC04-198 (W.C.C.A. Dec. 14, 2004).
[2] See, e.g., Brening v. Roto-Press. Inc., 306 Minn. 562, 337 N.W.2d 383, 28 W.C.D. 225 (1975) (The employee was familiar with the physical demands of the position. She was also the person most familiar with the severity of her symptoms and the limitations her back placed upon her physical activities. In such a case, her testimony alone is sufficient basis for the commission’s finding of temporary total disability). Grgurich v. Sears, Roebuck & Co., 301 Minn. 291, 223 N.W.2d 120, 27 W.C.D. 563 (1974) (where the testimony of an employee is substantial and credible, that testimony alone is a sufficient basis for a finding of disability); Ramirez v. Action Roofing, No. WC09-5040 (W.C.C.A. June 8, 2010); Carlson v. Northland Paper Supply, slip op. (W.C.C.A. Jan. 8, 1999).
[3] (See T. 49-50.)
[4] (Finding 39.)
[5] See, e.g., Le v. State, Univ. of Minn., 330 N.W.2d 453, 35 W.C.D. 665 (Minn. 1983); Thorstad v. United Hosps., 39 W.C.D. 648 (W.C.C.A. 1986); Anderson v. Wherley Moving & Storage. Inc., No. WC10-5091 (W.C.C.A. Oct. 14, 2010); Milligan v. Northwest Airlines Corp., slip op. (W.C.C.A. 2001); Hansen v. Beaver Indus., slip op. (W.C.C.A. Apr. 30, 1992).
[6] There is no evidence the training was certified or was part of a rehabilitation plan.
[7] There is similarly no evidence that this training was part of a rehabilitation plan.
[8] The employee acknowledged in her brief to this court that her actual earning capacity may have differed from her actual earnings during at least the time period from February 20, 2014 - - the date of Dr. Gregerson’s adoption of the FCE restrictions - - to the date of hearing. At the hearing and again on appeal, the employee argued that if the judge finds that the employee’s reduction in earnings is attributable, in part, to her decision to attend online school, an imputed wage should be calculated based on the employee’s hourly wage times eight hours a day, five days a week for the purpose of calculating temporary partial disability benefits. See Einberger v. Minn. Mining & Mfg. Co., 41 W.C.D. 727 (W.C.C.A. 1989).