THOMAS J. BOLSTAD, Employee/Respondent, v. TARGET CTR./OGDEN CORP. and BROADSPIRE, Employer-Insurer/Cross-Appellants, CLEAR CHANNEL OUTDOOR/TARGET CTR. and GALLAGHER BASSETT SERVS., Employer-Insurer/Cross-Appellants, and AEG MGMT./CLEAR CHANNEL OUTDOOR and SEDGWICK CLAIMS SERVS., Employer-Insurer/Appellants, and ORTHO REHAB SPECIALISTS, Intervenor.

The employer and insurers appeal from the compensation judge’s denial of a consequential Gillette^[1] injury, rejection of a superseding, intervening injury, award of wage loss benefits, and his apportionment determination. We affirm as modified.

In 1990, the employee began working for Target Center^[2] as an audio technician and stage manager. These positions required the set up and tear down of equipment for touring shows, performances, and sporting events at the Target Center, and required him to regularly lift equipment weighing between 75 to 100 pounds. In 2000, the employee began working as the crew chief for touring shows. The work he did for touring shows was less physically strenuous, though the remainder of his duties stayed the same. Many of those duties involved heavy lifting and overhead activities.

Work at Target Center was not regular and consistent, but depended upon circumstances such as touring show schedules and the success of athletic teams. The employee’s hours worked were irregular and could extend well beyond an eight-hour workday. He also performed jobs at venues other than Target Center through his union, of which he had been a member since 1975. According to the employee’s testimony, the union jobs constituted 20 percent of his overall work. When work was slow at Target Center, the employee would seek work through the union, or would otherwise plan a skiing vacation.^[3] The employee is a senior ranking member of his union, earns considerable amounts of annual vacation time, and is a high wage earner.^[4]

The employee’s claim of wage loss relates only to a loss of union work. He does not claim a loss of income from work missed at Target Center.

On November 28, 1990, the employee sustained a dislocation and rotator cuff tear of the right shoulder while working for Target Center.^[5] He underwent surgery, recovered, and returned to work. This injury was admitted, and Broadspire paid temporary partial disability benefits for a period of 23 weeks, as well as medical benefits, and 9% permanent partial disability benefits.

The employee testified that for years following this injury, he had no issues with the right shoulder and continued to work without any problems. In 2000, the employee dislocated his right shoulder as a result of a skiing incident. He testified that he fully recovered from this incident within six months.

On April 7, 2004, while working for Target Center, the employee fell and landed on his right shoulder.^[6] He was later diagnosed with a second rotator cuff tear and underwent surgical repair. This injury was admitted, and Gallagher Bassett paid three weeks of temporary total disability benefits following the surgery, medical benefits, and 6% permanent partial disability benefits. The employee testified that this injury did not affect his work, but that he did rely more on his left arm for a period of time. It was determined that he had reached maximum medical improvement with respect to this injury by February 2005.

On August 1, 2009, the employee injured his right shoulder while working for Target Center when it dislocated as a result of extending his arm.^[7] A full-thickness rotator cuff tear was revealed and the employee was diagnosed with acute on chronic massive rotator cuff tears. Months later, the employee continued to have issues and decreased strength. Dr. John Braman, the employee’s treating physician, considered this injury to be irreparable and surgery was not recommended. This injury was admitted and Sedgwick paid medical benefits. The employee testified that following this injury, he did not feel he could perform full duty work and accordingly turned down union jobs.

On October 2, 2009, the employee underwent an MRI of the left shoulder which revealed a full-thickness rotator cuff tear. The employee claimed this constituted a Gillette injury consequential to the right shoulder injuries previously sustained.

On January 23, 2010, the employee sustained a dislocation of his left shoulder resulting from a fall while working at Target Center.^[8] This injury was admitted. In the months that followed, the employee suffered a number of left shoulder dislocations, while skiing, diving, and engaging in other activities. He underwent a left shoulder reduction with an external fixator application in July 2010. Thereafter, Sedgwick paid a short period of temporary total disability benefits. He underwent a second procedure to have hardware removed in August 2010. Again, Sedgwick paid a short period of temporary total disability benefits. In September 2010, the employee was given permanent work restrictions relative to the left shoulder. Sedgwick paid medical benefits and 18% permanent partial disability benefits, as well as temporary partial disability benefits for a time period from June 2011 to March 2012, and for another period during the spring of 2013.

The employee testified that he continued to have issues with left shoulder range of motion and with engaging in overhead and out-front activities. He also testified that he was unable to lift heavy objects. He further testified that the nature of his work required the use of both arms. As a result, the employee was unable to definitively say whether and to what extent his right shoulder limited his work activities as compared to the left shoulder. Nonetheless, the employee further testified that he remains unable to do most of the posted union jobs, and attributed 90percent of that inability to his left shoulder. He continues to perform work for Target Center, although he has changed how he performs his usual job duties. The employee also continues to take skiing vacations.

The employee was evaluated by five medical experts, in addition to his treating physicians, in connection with his claims. Numerous reports were submitted into evidence for the compensation judge’s consideration.

The employee was seen for an independent medical examination by Dr. Elmer Salovich on two occasions, first in late 2009 and again in 2013. Dr. Salovich obtained a history from the employee, reviewed medical records, and conducted a physical examination. It was Dr.Salovich’s opinion that the 2004 work injury was minor and had resolved, and that liability for the employee’s right shoulder issues was 90% attributable to the 1990 injury and 10% attributable to the 2009 injury. With respect to the left shoulder, he noted that the rotator cuff and bicep tendon tears were present prior to October 2, 2009, (and, therefore, prior to the 2010 work injury). He also set forth physical restrictions the employee would require and stated that these restrictions were due to both the right and left shoulders. He assigned a 6% permanency rating to each shoulder.

The employee was seen for an independent medical examination by Dr. Michael D’Amato in 2011. Dr. D’Amato obtained a history from the employee, reviewed medical records, and conducted a physical examination. He diagnosed the employee with massive irreparable rotator cuff tears with a history of dislocations for both the right and left shoulders. He also noted that the left shoulder rotator cuff and bicep tendon tears were present prior to the 2010 injury, but that an acute injury was sustained on January 23, 2010, which resulted in subsequent dislocations and need for medical treatment. He provided physical restrictions and permanency ratings for both the right and left shoulders.

In response to the report and opinions of Dr. D’Amato, Dr. Jonathan Braman, one of the employee’s treating physicians, issued a letter dated November 4, 2011. Therein, Dr.Braman distinguished his opinion from Dr. D’Amato in that Dr. Braman believed the employee’s left shoulder was less stable and more disabling than the right shoulder, and that the 2010 injury to the left shoulder caused a “profound and substantial change” in function.

In 2012, the employee was seen for an independent medical examination by Dr.Gary Wyard, who issued reports dated November 1, 2012, and April 6, 2016. Dr. Wyard obtained a history from the employee, reviewed medical records, and conducted a physical examination. With respect to the employee’s right shoulder condition, Dr. Wyard was of the opinion that the 1990 injury was permanent and that 50% of his issues were attributable to this injury. While he believed the 2004 injury to be a temporary aggravation that had resolved, he considered the 2009 injury to be significant and 50% responsible for the right shoulder condition. He rated 6% permanency for the right shoulder. With respect to the left shoulder, Dr. Wyard did not believe the employee sustained a consequential or Gillette injury. Dr. Wyard noted that the employee had pre-existing issues, but he considered the 2010 injury to have been permanent and 100% the cause of the employee’s left shoulder condition.

Dr. Paul Wicklund conducted an independent medical examination in April 2013. Dr. Wicklund obtained a history from the employee, reviewed medical records, and conducted a physical examination. It was Dr. Wicklund’s opinion that the employee’s right shoulder condition was equally attributable to the 1990, 2004, and 2009 work injuries. Dr. Wicklund did not address the employee’s left shoulder.

An independent medical examination was conducted by Dr. Robert Wengler on January 18, 2016, at the request of the employee’s attorney. Dr. Wengler obtained a history from the employee, reviewed medical records, and conducted a physical examination. He opined that the left shoulder rotator cuff tear was a Gillette injury consequential to the employee’s right arm condition, and that the left shoulder condition was a result of both the October 2009 Gillette injury and the January 2010 injury.

In 2011, the employee filed a claim petition and Sedgwick filed a petition to discontinue. These pleadings were consolidated in 2013. In late 2015, Sedgwick filed a petition for contribution and petition for joinder, seeking reimbursement for wage loss and medical benefits paid to the employee under a 2012 temporary order. This petition was consolidated with the other pleadings in early 2016.

On May 4, 2016, the matter came on for hearing before Compensation Judge William Marshall. There were eleven issues identified for the compensation judge’s consideration.

In his Findings and Order dated June 24, 2016, Judge Marshall denied the employee’s claim that he suffered a Gillette injury to his left shoulder on October 2, 2009, and his claim for 6% permanent partial disability for that alleged injury. He also rejected the claim that the employee had suffered an injury to his left shoulder consequential to his right shoulder injuries. The compensation judge concluded that the employee sustained a permanent injury to his left shoulder in the nature of a substantial aggravation of a pre-existing condition, and rejected the claim that the employee had sustained a superseding, intervening injury to the left shoulder. The compensation judge found that any medical treatment to the left shoulder at issue was causally related to the 2010 date of injury. With regard to the three right shoulder injuries, the compensation judge found them to be permanent injuries leading to an irreparable rotator cuff tear, and that any medical treatment to the right shoulder was equally attributable to those three injuries. He awarded 6% permanent partial disability benefits relative to the August 1, 2009, injury to the right shoulder.

Further, Judge Marshall concluded that the employee was entitled to temporary total disability benefits, and that all four dates of injury were equally responsible for those benefits. He also concluded that the employee was entitled to temporary partial disability benefits from July15, 2010, and ongoing, and that all four dates of injury were equally responsible for those benefits. In his supporting memorandum, the compensation judge provided Kaisershot^[9] calculations. Judge Marshall issued an Amended Findings and Order dated July 15, 2016, in which he revised his Kaisershot calculations, but the underlying findings remained unchanged. Ultimately, all three insurers appealed the Amended Findings and Order.^[10]

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(3). 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.”^[11] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[12] 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.”^[13]

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.^[14]

At the hearing on May 4, 2016, the compensation judge identified the issues as follows:

1. whether the employee suffered a Gillette type injury to his left shoulder as of October 2, 2009;
2. whether the employee is entitled to a six percent permanent partial disability rating for his right shoulder for the August 1, 2009, date of injury and a six percent permanent partial disability rating for his left shoulder as a result of the October 2, 2009, date of injury;
3. what are the nature and extent of the various work injuries and if applicable, what portion of responsibility should be applied to each date of injury;
4. whether the medical treatment is causally related to any of the dates of injury and if so, what is the apportioned responsibility;
5. whether there is a consequential left shoulder injury as a result of the right shoulder injuries;
6. is the employee entitled to temporary partial disability benefits from July15, 2010, to May 29, 2013, and if so, who is responsible and at what rate;
7. is the employee entitled to ongoing temporary partial disability benefits from May 30, 2013, and if so, who is responsible and at what rate;
8. is there an apportioned responsibility for temporary total disability benefits paid;
9. whether the insurer on the risk for the November 28, 1990, work injury is responsible for any of the wage loss benefits;
10. if there is an apportioned responsibility for temporary partial disability benefits, what is the appropriate calculation for the rate of payment: and
11. did the employee sustain an intervening superseding injury to his shoulders in 2010.^[15]

1. whether the employee, in the course of his employment at Target Center, sustained repetitive minute trauma to the left shoulder that led to a consequential compensable Gillette^[16] injury in 2009;
2. whether the employee, in the course of his employment at Target Center, sustained a superseding, intervening compensable injury to his left shoulder in 2010;
3. whether the employee, as a result of one or more work injuries at Target Center, is entitled to temporary partial disability benefits, and if so, which insurer is legally responsible for payment, and what rate is to be paid; and
4. apportionment of responsibility between insurers for temporary total disability benefits, and what rate is to be paid by each responsible insurer.^[17]

We affirm the decision of the compensation judge with modifications, as outlined below.

Sedgwick asserts the record as a whole supports the conclusion that the employee’s specific work activities at Target Center were a substantial contributing cause of a consequential Gillette injury. In support of its position, Sedgwick points to evidence in the record that contains opinions from medical experts stating the deterioration and tearing of the employee’s left rotator cuff is the consequence of overuse brought on by the weakness of the right arm from multiple work injuries to his right shoulder. Under a substantial evidence review, we conclude that the evidence in the record is sufficient to affirm the compensation judge on this issue.

A Gillette injury occurs when repetitive stress or trauma sustained by an employee as a part of the employee’s usual work activity results in disability.^[18] Proof of a Gillette injury is established by a “causal connection between [the employee’s] ordinary work and ensuing disability.”^[19] The employee’s testimony alone is not sufficient to establish the causal connection,^[20] rather, the connection is primarily dependent on medical evidence.^[21] Here, the compensation judge concluded there was “no medical proof of any work related causation to the employee’s symptoms.”^[22] We further note that the employee testified he had no memory of any left shoulder symptoms:

Question: Now, other than this February of 2001 incident skiing, have you had problems over the years with your left shoulder?

Answer: No.

Question: What about leading up to the MRI on October 2, 2009, were you experiencing symptoms prior to that?

Answer: Not that bothered me. You know, it probably was, but the right one [shoulder] was always worse. So I didn’t really . . . .

Question: Did you associate any symptoms of the left shoulder with your work activities before the MRI?

Answer: I did not.^[23]

Although Dr. Wengler, in his 2016 report, considered “the deterioration and tearing of the left cuff to be a Gillette injury consequential to overuse brought on by the weakness of the right arm,”^[24] he failed to reference anything in the work history that would suggest a consequential Gillette injury by October of 2009. As was noted by the judge in his memorandum, there was little in contemporaneous medical records, and nothing in a narrative report from any medical examiner or medical provider, to support the claim of a consequential Gillette injury beyond the conclusory opinion of Dr. Wengler.

The employee was seen by Dr. Salovich on December 19, 2009, and September 27, 2013, at the request of Sedgwick.^[25] In his reports, Dr. Salovich outlined the foundation for his expert opinion that the employee’s right shoulder symptoms were not a substantial contributing factor to the employee’s October 2, 2009, left shoulder findings. The employee was also seen by Dr. Wyard on October 25, 2012, at the request of Gallagher Bassett.^[26] In his report, Dr. Wyard outlined the foundation for his expert opinion that the employee suffered no Gillette injury to his left shoulder as of October 2009. Dr. Salovich and Dr. Wyard stated the facts and assumptions upon which their opinions were based. Here, the expert medical opinions were sufficient for the compensation judge to resolve the Gillette issue with the evidence presented. The compensation judge found the employee did not suffer a Gillette injury to his left shoulder consequential to his right shoulder injuries. Because substantial evidence in the record supports the judge’s conclusion, we affirm on this issue.

Sedgwick contends the record as a whole supports the conclusion that the employee sustained a superseding, intervening injury to his left shoulder while skiing following his January 2010 work injury. In support of its argument, Sedgwick points to the fact that surgery had not been recommended following the January 2010 work injury until after subsequent dislocations. Sedgwick argues that causation should be tied to the sequence and timing of these events. Although the compensation judge could have accepted this argument, the sequence of events alone, without more, does not compel a finding of a superseding, intervening injury. Here, the mere fact that one event preceded the other event was not dispositive of the issue. As the finder of fact, the judge was free to look beyond a narrow chronology of events and draw a causal connection between the work-related condition and the employee’s surgery on a broader timeline. The compensation judge relied on the treatment records of Dr. Braman. These records included a discussion in February 2010 in which Dr. Braman outlined the risks of recurrent instability and dislocations going forward. Dr. Braman also outlined the possibility that something might need to be done to stabilize the shoulder, but that for the time being, the employee should restrict his overhead activities and limit lifting done above shoulder height.^[27] Dr. Braman taught the employee how to self-treat subsequent dislocations. Thereafter, the employee sustained multiple dislocations, including one in April 2010 while skiing, which Sedgwick argues constitutes a superseding, intervening injury.

Based on the medical evidence and the opinions of Dr. Braman, Dr. Wyard, and Dr.D’Amato, it was reasonable for the judge to conclude that once the employee’s left shoulder was dislocated and fractured as a result of the January 2010 work injury, he was vulnerable to repeat episodes of instability. Only after the employee presented to Dr. Braman in July 2010 with reports of multiple episodes of dislocation did Dr. Braman recommend that the employee proceed with surgical intervention.

On a complicated set of facts, the compensation judge resolved the issue by accepting the opinions of medical experts who incorporated a broader analysis of events and classified the diagnosis as multifactorial, involving massive irreparable rotator cuff tears with a history of dislocations for both the right and left shoulders, a left shoulder diagnosis of rotator cuff and bicep tendon tears, with the addition of an acute left shoulder injury on January 23, 2010, which resulted in subsequent dislocations and need for medical treatment. Substantial evidence in the record supports the judge’s conclusion and we affirm on this issue.

On appeal, both Sedgwick and Broadspire contend that the employee failed to demonstrate entitlement to temporary partial disability benefits and that the findings of the compensation judge fail to support a factual and legal basis for equitably apportioning liability among the four work injuries. For the reasons set forth below, we affirm, as modified.

Sedgwick and Broadspire contend that the employee’s earnings since July 15, 2010, are not an accurate reflection of his earning capacity. Specifically, they argue that the employee failed to make a good faith effort to return to his pre-injury earnings, and that he should have performed a job search beyond his regular checking of union job postings.^[28] They note that the employee offered no documentary evidence that union jobs he rejected were outside of his physical limitations. Accordingly, the insurers argue the evidence does not support the conclusion that the employee established an actual loss of earning capacity causally related to the work injuries.

To the extent that an employee’s reduced earnings result from the effects of the work injury, the employee is entitled to wage loss benefits.^[29] In awarding temporary partial disability benefits, the compensation judge reasoned that the employee’s work injuries to his bilateral shoulders contributed to an ongoing disabling condition, and that while he was able to perform his work at Target Center, he was unable to perform union jobs as a result of his disabling condition.^[30] We further note that the compensation judge gave substantial weight to the employee’s testimony and to his demonstrated work ethic and established work history. The employee testified that he had decades of experience with stagehand work and had performed this work for a number of local venues. He further testified that he was familiar with the exact nature and physical demands of the work being offered through the union. It was not unreasonable for the judge to give significant weight to the employee’s testimony with respect to how union jobs are obtained, as well as the employee’s awareness of the physical expectations of those jobs and his limitations.

The insurers also argue that because the employee did not search for work beyond the use of the union hiring hall, his job search efforts were not reasonably diligent. We have previously held that “contact with the union hiring hall by a union tradesperson may support a finding of a reasonably diligent job search in appropriate circumstances.”^[31] The question here is not whether the employee made reasonable efforts to perform a job search, but whether the employee demonstrated an inability to work the second job within his restrictions. We affirm the judge’s conclusion that the employee has restrictions as a result of his work injuries, and we affirm his conclusion that as a result of those restrictions, the employee has experienced reduced earnings attributable to the work injuries. Substantial evidence supports the compensation judge’s finding that the employee conducted a reasonably diligent job search for the period during which the employee, consistent with his decades of prior practice, relied exclusively on his union hiring hall in seeking employment within his restrictions. Because the compensation judge’s conclusion on this issue is supported by substantial evidence, we affirm.

The insurers suggest that for periods during which the employee used accrued union vacation time, temporary partial disability benefits are not payable as a matter of law. The compensation judge appropriately rejected this argument. Here, the vacation pay was an earned accrued contractual benefit. Temporary partial disability benefits may be paid for a period during which vacation pay was received.^[32] Under the unique facts in this case, the compensation judge’s conclusion that the employee is entitled to concurrent receipt of wage loss compensation for the period of paid vacation is supported by substantial evidence in the record, and we affirm.

The insurers argue the compensation judge’s findings with respect to the apportionment of liability for temporary partial disability benefits is unsupported by the record and contain errors of law. On appeal, we consider this issue a mixed question of fact and law. Apportioning liability among insurers who provided coverage at the time of each injury is a question of fact which we review under a substantial evidence standard. The findings and order for payment, however, which rest upon the application of the statute in effect on the date of each injury, is a question of law we review de novo.

The compensation judge concluded that an equal apportionment of liability for temporary partial disability benefits between all four dates of injury was appropriate. Apportionment of a compensable claim among four work injuries is a question of fact for the compensation judge and is not subject to precise formulas or to an expert opinion.^[33] “The appropriateness of apportionment depend[s] on whether the adequate evidence of record lays a proper foundation for apportioning” liability among the insurers who provided coverage at the time of the injuries.^[34] Here, the compensation judge noted the complex medical conditions, the sequence of multiple dislocations, and the effects of ongoing chronic right shoulder instability, the history of medical treatment, the physical restrictions, the employee’s self-imposed limitations, and multiple expert opinions by several doctors. The judge concluded that an equal apportionment of liability for temporary partial disability benefits between all four dates of injury was appropriate. From our review of the entire record, we acknowledge that the compensation judge could have apportioned liability in a number of ways; nevertheless, there is sufficient evidence in the record to support a finding that the injuries contributed equally to the employee’s disability. We therefore affirm the judge on this issue.

While we affirm the compensation judge’s factual basis for his conclusion, we modify the calculation based on the law in effect on the date of each injury. Gallagher Bassett asserts that it should not be liable for temporary partial disability benefits beyond 450 weeks from the 2004 date of injury pursuant to Minn. Stat. § 176.101, subd. 2(b). We agree. The compensation judge’s finding that all four dates of injury are equally liable for payment of temporary partial disability benefits is affirmed, but modified to the extent that after November 21, 2012, Gallagher Bassett has no further liability, and liability is equally apportioned between the remaining three insurers who provided coverage at the time of each injury.

Broadspire argues the compensation judge committed error by apportioning part of the employee’s temporary partial disability benefits against the November 28, 1990, injury when the employee’s reduced earnings during the periods awarded exceed the employee’s average weekly wage on the date of the November 28, 1990, injury. In Brink v. Metro. Waste Control Comm’n,^[35] we held an employer responsible to pay their apportioned share of temporary partial disability benefits even though the employee’s current wage was greater than the wage earned while working for that employer. Broadspire argues the holding in Joyce v. Lewis Bolt & Nut Co.^[36] is an “erosion” of the Brink case to such an extent that Brink is no longer good law. We disagree.

In Joyce, the Minnesota Supreme Court addressed the change in the law in workers’ compensation cases involving successive “old” and “new” law injuries. The Joyce court held that where the second injury is a new and separate injury, the law in effect on the date of the new injury controls.”^[37] Joyce did not change existing law on apportionment. Fundamental considerations of full compensation to the employee remains good law. The compensation judge’s finding is consistent with the holding in Brink and we affirm.

Finally, the parties are directed to recalculate the compensation rates using the Kaisershot formula based upon the stipulated average weekly wages, the application of annual adjusted compensation rates under Minn. Stat. § 176.645, and according to the apportionment of liability as modified in this opinion.^[38]

Gallagher Bassett and Broadspire appeal from the compensation judge’s equal apportionment of liability for temporary total disability benefits for two periods of time in 2010, the first following the employee’s first left shoulder surgery in July, and the second following his second left shoulder surgery in August and September. They argue that the employee’s inability to work during these periods of time related only to his January 2010 left shoulder injury. The compensation judge’s conclusion that apportionment should be equal, even during these periods of time immediately following left shoulder surgeries, follows from his determination that the employee continued to suffer from the ongoing permanent effects of his right shoulder injuries, which contributed to his bilateral chronic shoulder instability. As previously stated, apportionment of a compensable claim among work injuries is a question of fact for the compensation judge.^[39] Here, the judge gave significant weight to the employee’s testimony regarding his inability to complete his work with the use of only one arm and the physical restrictions he was subject to with regard to his right shoulder at the time. It was not error for the compensation judge to divide liability for the temporary total disability benefits equally among the insurers who provided coverage at the time of the employee’s injuries. Because the compensation judge’s finding is not manifestly contrary to the weight of the evidence, it is affirmed.^[40]

Based on our review of the record as a whole and based on the law in effect on the date of each injury, we affirm and modify Finding 26 and Order 4 with respect to payment of temporary partial disability benefits against Gallagher Bassett, and with respect to the application of the Kaisershot formula outlined in the compensation judge’s memorandum.