WAGES – CALCULATION. It was reasonable and within the compensation judge’s discretion to reject the two alternative average weekly wage calculations stipulated to by the parties and his calculation constitutes a fair representation of the employee’s loss of earning capacity attributable to the work injury.
JOB SEARCH – SUBSTANTIAL EVIDENCE. Substantial evidence in the record supports the compensation judge’s conclusion that the employee did not make a diligent job search considering the nature of his activity restrictions.
Compensation Judge: James Kohl
Attorneys: Raymond R. Peterson and John Lorentz, McCoy, Peterson & Jorstad, Minneapolis, Minnesota, for the Appellant. James R. Waldhauser, Cousineau, McGuire, Chartered, Minneapolis, Minnesota, for the Cross-Appellants.
Affirmed.
MANUEL J. CERVANTES, Judge
The employee appeals the compensation judge’s average weekly wage determination and the denial of his claim for temporary total disability benefits. The employer cross-appeals the average weekly wage (AWW) determination. We affirm.
The employee, Chase Baker, signed as a free agent with the employer, Minnesota Vikings Football Club (“Vikings”), in 2012 as a defensive linebacker. His relationship with the Vikings spanned from the summer of 2012 to the summer of 2014.
The employee signed a three-year free agent contract in 2012. This contract, which was offered into evidence, provided for compensation of $273,000.00 in 2012, $303,000.00 in 2013, and $570,000.00 in 2014, so long as the employee was on the team roster. Players also received per diem while participating in off-season programs. In 2012, the employee participated in the mini-camp and training camp leading up to the season. He ultimately did not receive a spot on the 2012 roster. He signed a contract to remain on the practice squad.
In 2013, the employee again attended mini-camp and training camp. He then signed a two-year contract. This 2013 contract was not submitted into evidence. According to the employee’s testimony at the hearing, the 2013 contract provided for $390,000.00 in compensation for the 2013 season and $470,000.00 for the 2014 season, dependent on his being on the roster. The employee was on the team roster in 2013 and played in five of the sixteen season games. He was paid the contract amount for the 2013 season. Following that season, the employee felt that he was in the best shape of his life.
On May 30, 2014, while participating in the 2014 mini-camp, the employee injured his low back while performing a hang clean lift with the weights. He reported the injury to the team trainers. While he did participate in practice later that day, he was unable to finish practice due to pain and was treated for back muscle spasms. An MRI performed on June 2, 2014, showed a degenerative back condition at multiple levels, as well as disc bulges at L3-4 and L4-5.
The employee’s back symptoms continued through the summer and his training was modified. He underwent chiropractic care. The weight-lifting he would have otherwise done to maintain explosiveness was limited. He experienced issues with his left knee in addition to his low back. His back condition was worse than the knee condition.[1] Later that summer, the employee reported no physical problems and participated in training camp. His back symptoms had improved slightly, though according to the employee, he denied ongoing issues with his back so as to avoid being cut. During the 2014 training camp, the employee felt that his play had deteriorated and that he was not playing to the level he was accustomed to, which he attributed to a lack of explosiveness resulting from the limited training. In addition to participating in training camp, the employee played in three pre-season games.
At the conclusion of training camp in 2014, the employee’s contract was terminated. The employee was released because he was not considered to be a good fit in the new defensive scheme in terms of both physical stature and athletic ability. The employee was not the only defensive lineman cut prior to the 2014 season. In fact, only one defensive lineman remained from the prior season. The employee’s Notice of Termination states, “[i]n the judgment of the Club, your skill or performance has been unsatisfactory as compared with that of other players competing for positions on the Club’s roster.” He was not on the 2014 team roster and was not paid under the 2014 contract. According to the stipulations made by the parties, the employee earned $19,437.06 during the 2014 off-season. The employee signed waiver forms indicating he was not suffering from any disability upon termination. He was not subject to formal work or activity restrictions at the time of his separation from the team.[2]
After having been cut from the Vikings, the employee sought the assistance of a new agent to sign with another team. He participated in a camp with an Ottawa Canadian Football League team, but was cut. He later completed conditioning tests for the New England Patriots, but was not offered a position on the advice of team doctors who knew about the employee’s back condition. At the time of the hearing, the employee felt that he was unable to continue as a professional football player due to his back condition.
On October 30, 2015, this matter was heard by a compensation judge on the employee’s claim petition, as amended on May 18, 2015.[3] The issues relevant to this appeal are average weekly wage (AWW) and the employee’s entitlement to temporary total disability benefits. At the hearing, the parties stipulated that the same AWW would apply to both dates of injury. They further stipulated that either the employee’s asserted wage of $9,193.00 or the employer’s asserted wage of $1,143.36, was to be used in the determination of the employee’s AWW.
In his Findings and Order dated January 15, 2016, the compensation judge denied the employee’s claim for temporary total disability benefits from September 1, 2014, to the present and continuing because the employee’s work restrictions related only to playing football, the record lacked medical evidence of total disability, and the employee did not perform a diligent job search. Further, the judge declined to adopt either of the stipulated AWW calculations submitted by the parties and, based on his review of the evidence and law, determined the employee’s AWW to be $6,200.71.[4]
Both the employee and the employer appeal from the judge’s Findings and Order, and both assert that the judge erred in disregarding the parties’ stipulation of AWW. The employee also asserts that the judge’s consideration of job search was improper and prejudicial because the lack of job search was not raised as a defense by the employer.
In reviewing cases 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. 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. 358 N.W.2d at 60, 37 W.C.D. at 240. Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Products, Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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 the evidence or not reasonably supported by the evidence as a whole.” Id.
At the hearing, the parties stipulated that the same AWW would apply to both dates of injury, and that either the employee’s asserted wage of $9,193.00, or the employer’s asserted wage of $1,143.36, was the correct calculation.[5]
The judge rejected the parties’ AWW calculations and made his own determination. The judge found the employee’s AWW to be $6,200.71. In arriving at this figure, the judge took into account the employee’s earnings during the 2013 season,[6] plus the per diem compensation earned during the 2014 off-season ($303,000.00 + $19,437.06), and divided the sum by 52 weeks. In his memorandum, the judge wrote, “[w]hile the parties stipulated the employee’s AWW is either $9,193.00 or $1,143.36, and requests this Compensation Judge to simply choose one, the undersigned, however, declines to do so.” The judge cited Carlson v. Ford Motor Co., No. WC06-100 (W.C.C.A. July 12, 2006), Hansford v. Berger Transfer, 46 W.C.D. 303, 309-10 (W.C.C.A. 1991), and Decker v. Red Wing Shoe Co., 41 W.C.D. 763 (W.C.C.A. 1988), for the general proposition that “[w]here evidence necessary to comply with the statutory calculation directives is not available, the compensation judge may use another method of calculating the employee’s weekly age, so long as it fairly represents the employee’s injury-related loss of earning capacity.”
Both the employee, and the employer, appeal the judge’s AWW determination. We affirm.
It is the employee’s position that the judge erred in failing to adopt his asserted AWW of $9,193.00, and by fashioning his own method of calculation rather than follow the statutory calculation directives. The employee argues that the judge’s reliance on past earnings was not appropriate when the contract provided the best evidence of the employee’s future earning power for 2014. In his brief, the employee asserts that the contract amount of $570,000.00 for the 2014 season is the amount that should serve as the basis of the AWW calculation.[7]
In rejecting the employee’s AWW calculation, the judge stated that the 2014 salary would not be considered because the employee was terminated prior to the season, hence, that compensation was never earned, and, therefore, the employee’s stipulated wage was exaggerated. The employee argues that the judge’s consideration of only actual earnings was in error, and that in committing this error, he misinterpreted Knotz v. Viking Carpet, 361 N.W.2d 872, 37 W.C.D. 452, (Minn. 1985).
In his memorandum, the judge cited Knotz for its holding that what the employee actually “earned” is the object of wage determination, not what he was paid. In Knotz, the employee, president and co-owner of the business, contracted to receive a draw of $200.00 a week as wages. Any additional revenues were used to pay his partner up to $200.00 per week, and any balance would be re-invested in the company. The WCCA, affirmed by the supreme court, reversed the compensation judge for only considering what the employee was paid, $800.00 in the preceding 26-week period prior to the injury, when calculating AWW, and not what the employee earned, which was the $200.00 per week employment contract amount. The present case is the opposite. The judge determined that the 2014 contract was basically irrelevant because the employee did not perform as required by the employment contract to make the team roster and play in a 2014 regular season game, hence, the employee did not earn any wages under the 2014 contract.
The employee asserts that the judge erred in relying upon Knotz in considering only prior earnings. We disagree. In Knotz, what the self-employed employee was actually paid was different than what he earned under his employment contract because he reinvested his income back into the company. Under these circumstances, the supreme court determined that the employee’s wage loss should be calculated based upon the employment contractual amount as it was a fairer approximation of his future earning capacity. The judge did not rely on Knotz as asserted by the employee herein. Rather, it appears that Knotz was cited for the general proposition that in a case where what is earned is different than what is paid, consideration of the former is appropriate and may be a fairer approximation of future earning capacity when calculating AWW.
Further, the employee argues that Knotz supports his position that the best evidence of probable future earning capacity is the compensation amount provided in the contract for the 2014 season. We disagree. Unlike the self-employed employee in Knotz, who reinvested his earnings into the company and was paid a reduced wage as a result, the employee’s compensation contract was terminated before the 2014 regular football season and, as a result, he was neither paid nor earned wages under the 2014 season contract.
In its cross-appeal, the employer argues that the compensation judge erred in failing to adopt its asserted AWW of $1,143.36. The employer points to the language of Minn. Stat. § 176.101, subd. 1(a) and its requirement that temporary total disability benefits be based upon the wage “at the time of injury,” and that on the May 30, 2014, date of injury, the employee was earning a per diem amount. The judge concluded that the AWW calculation submitted by the employer did not consider what the employee actually earned while playing for the Vikings.
The compensation judge considered what the employee earned during the 2013 season and the 2014 off/pre-season per diem in concluding that the appropriate AWW was $6,200.71.[8] Under the Carlson, Hansford, and Decker standard, this rate is subject to an analysis of whether it is a fair representation of the employee’s loss of earning capacity that can be attributed to his May 30, 2014, injury to his low back. We consider the approach taken by the judge reasonable in this case and in light of the evidence submitted, and we affirm his determination.
In doing so, we must also reject the employee’s argument that the judge’s disregard of the agreement between the parties on the issue of AWW was an improper expansion of the issues. Generally speaking, parties may make joint evidentiary submissions and factual stipulations which, in turn, may relieve the trier of fact from having to make specific finding of fact(s). However, the judge is not bound by agreements made between the parties and is the ultimate decider of law and fact.
The employee appeals the compensation judge’s denial of his claim for temporary total disability benefits from September 1, 2014, to the present and continuing. In his Findings and Order, the judge found that the preponderance of the evidence did not support the employee’s claim, and in his memorandum explained that the employee failed to produce medical evidence of total disability and provided no documentation of a job search. We affirm.
The employee asserts that the compensation judge’s consideration of whether a diligent job search was conducted was an improper expansion of the issues as it was not a defense raised by the employer. He also argues that even if the judge could have considered the issue of job search, the employee’s job search was diligent, especially in light of the absence of rehabilitation assistance.
Whether an employee has made a diligent job search is a key element when making a claim for temporary total disability benefits. Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290, (Minn. 1967). The employee’s argument suggests that rather than establishing that a diligent job search was conducted as part of his burden of proof on his claim for wage loss benefits, the burden was on the employer to specifically assert lack of job search as a defense to the claim. With respect to the employee’s alternative argument that he did conduct a diligent job search under the circumstances, whether a job search is reasonable is a question of fact. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 749, 40 W.C.D. 933 (Minn. 1988).
In this case, compensation judge determined that the employee did not meet his burden of proof on his claim for temporary total disability claim because he offered no documentation of a job search, he had not treated for his low back since the summer of 2014, there was no medical evidence of total disability, and because the only restrictions imposed by Dr. Wengler related to the employee’s activities as a defensive lineman in the NFL. The employee did not have any other work or activity restrictions. Substantial evidence in the record supports the judge’s conclusion that the employee was not totally disabled following his discharge from the employer. Furthermore, the fact the employee had no rehabilitation assistance does not relieve him of his obligation to conduct a diligent job search. See, Gillespie v. WESI/Johnson Screens, slip op. (W.C.C.A. June 13, 1996).
Finally, the judge did award a 9% permanent partial disability relative to the low back condition. In his brief, the employee points to the awarded permanency as evidence of a disability, such that wage loss should be awarded pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206, (Minn. 1987). However, the employee cites no authority in support of his argument that a permanency rating alone equates to physical restrictions such that he can be considered disabled for purposes of a wage loss claim.
We affirm the judge’s Findings and Order in its entirety.
[1] The employee acknowledged significant pre-existing issues with his left knee, including multiple ACL tears and corrective surgeries. He claimed to have had no back problems prior to playing for the Vikings.
[2] In October 2015, the employee was evaluated by Dr. Robert Wengler who recommended that the employee not return to “activities that involve the stresses of a defensive lineman in the NFL.” In his May 29, 2015, IME report, Dr. William Park opined that the employee does not require restrictions related to his low back injury, but that he risks recurrent pain and/or an aggravation should he continue to play football.
[3] At issue was the nature and extent of the employee’s May 30, 2014, back injury, whether the employee sustained a Gillette injury to his left knee culminating on or about August 30, 2014, the nature and extent of said injury, entitlement to temporary total disability benefits, entitlement to permanent partial disability benefits, entitlement to a qualified rehabilitation consultation, average weekly wage, whether intervention claims were causally related to the claimed dates of injury, and whether the Department of Employment and Economic Development was entitled to reimbursement for unemployment benefits paid to the employee.
[4] With respect to the other issues presented and not appealed, the judge concluded that the employee’s low back injury of May 30, 2014, was permanent in nature and awarded a 9% permanent partial disability. He determined that the employee had reached maximum medical improvement with regard to that injury as of May 29, 2015. He found no August 30, 2014, Gillette injury to the left knee. The judge further determined that because the employee is likely precluded from playing football, a qualified rehabilitation consultation was appropriate.
[5] The employer calculated the $1,143.36 figure by considering the $19,437.06 in per diem and other payments earned over the course of 17 weeks during the 2014 off-season at the time of the May 30, 2014, injury. The method of calculation used by the employee, however, is misplaced given the record. The employee asserts an average weekly wage of $9,193.00. In his brief, he argues that his wages should be based on the prospective amount of $570,000.00 for the 2014 season. The $570,000.00 figure, however, was a provision under the initial 2012 multi-year contract. The employee testified that he had signed a different contract in 2013 which provided for $470,000.00 for the 2014 season.
[6] Upon close review of this record, it is unclear that the employee earned $303,000.00 during the 2013 season. The initial 2012 multi-year contract provided for this amount for the 2013 season, however, according to the employee’s testimony, he executed a second contract prior to the 2013 season under which he was to earn $390,000.00. The second contract was not submitted into evidence nor did he testify as to how much he actually earned in 2013.
[7] As mentioned above, it is the initial 2012 multi-year contract that provides compensation in the amount of $570,000.00 for the 2014 season. According to the employee’s testimony, the second contract, signed prior to the 2013 season, provided for $470,000.00 for the 2014 season.
[8] This rate uses the 2013 earnings provided in the 2012 contract, and not the 2013 contract testified to by the employee.