JOHN E. PETZEL, Employee/Appellant, v. DS AGRI CONSTR. and AMERICAN INTERSTATE INS. CO., Employer-Insurer/Respondents.

The employee appeals the compensation judge’s finding that the employee failed to meet his burden of proving entitlement to temporary partial disability. Because the employee failed to prove that he was gainfully employed, and because his earnings were sporadic and insubstantial, earning less than $80.00 a month while working for his father’s farm as a “gofer,” we affirm the compensation judge’s denial of temporary partial disability benefits.

On April 4, 2013, the employee, 29-year-old John E. Petzel, was helping to install a spout from a grain bin under construction while working for the employer, DS Agri Construction. The spout swept upwards and caught the employee, lifting him into the air and then dropping him on another metal tube. He suffered a thoracic vertebral fracture as well as multiple rib fractures, he also claimed a left lower extremity and a groin injury. The employer and its insurer, American Interstate Insurance, admitted liability and paid workers’ compensation benefits.

The employee received temporary total disability (TTD) benefits up to the maximum duration of benefits of 130 weeks. During this time, he also worked on a part-time and limited basis for his father, Mr. Gene Petzel, who owned and operated a 385-acre farm. The employee did not make a claim for temporary partial disability benefits and his father was not paying any wage to him at that time.

Beginning in June 2013, the employee received vocational rehabilitation assistance pursuant to Minn. Stat. § 176.102. Noted in the court record is that the employee was a 2001 high school graduate who attended technical colleges and received certificates in mechanics and agriculture mechanics. While he was apparently diagnosed with ADD and dyslexia in grade school, vocational testing completed after the work injury showed average to above average aptitudes in most subjects with a very high aptitude in spatial and form perception.

Dr. Steven R. Sabers released the employee to return to work with restrictions on August 11, 2015. The restrictions were in the “very light” category requiring no lifting over 10 pounds and changing positions as needed. There were no restrictions on the number of hours the employee could work. Despite the release to return to work, the employee’s QRC testified that vocational rehabilitation efforts were directed primarily at medical management. The vocational rehabilitation records show that part of the rehabilitation plan, as well as charges for rehabilitation services, were for job search, including job leads provided by the QRC. No documentation that the QRC provided job leads or engaged the employee in job search was part of the record, but the employee testified that he looked for work on his own through local job services and employment agencies in the southern Minnesota areas of LeSueur, Mankato, and Shakopee or Savage.

In October 2015, the employee began receiving wages from Mr. Petzel for gofer work the employee did for him. As a gofer, the employee ran errands and occasionally took over some of the equipment so his father could take a break. Mr. Petzel paid the employee $10.00 an hour, which he testified was based on what he typically would pay a high school student who would work for him. Mr. Petzel paid the employee an average of $80.00 each month for approximately eight hours of work.

In November 2015, the employee filed a claim petition alleging entitlement to temporary partial disability (TPD) for the difference between his pre-injury weekly wage of $651.49 and what he earned working for his father. He claimed that due to the very significant work restrictions he suffered, the work he performed for his father was the only work he could find. Likewise, he claimed that the earnings of $80.00 a month was the best he could do given his disability, interests, experience, and the labor market.

The matter was heard before Compensation Judge Kathleen Behounek on August 17, 2016. In findings and order served and filed on October 13, 2016, the judge denied TPD benefits. She explained that the employee’s earnings working for his father were simply too sporadic and insubstantial to establish entitlement to TPD benefits. The employee appeals.

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.” 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).

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. Krovchuk_v._Koch_Oil_Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

On appeal, the employee argues that the compensation judge erred in not shifting the burden of proof to the employer once the employee established that he was working a job within his restrictions and earning less than his pre-injury wage. Given the employee’s restrictions and position, he argues that it should be presumed that the employee suffered a loss of earning capacity, and is therefore entitled to TPD benefits. Because the employer and insurer did not rebut the presumption of the employee’s earning capacity by providing evidence of other available work, the employee maintains that the judge erred as a matter of law. We disagree. The employee’s argument that the judge erred because the employer and insurer did not rebut the employee’s earning capacity, places the proverbial cart before the horse. The employee carries the burden of first proving the elements of TPD before the employer and insurer may rebut those elements.

Generally, an employee seeking TPD benefits must establish the following four elements:

1. a work-related injury resulting in disability;
2. a loss of earning capacity causally related to the work-related disability;
3. the ability to work subject to the disability; and
4. an actual loss of earning capacity.

The issue of whether particular employment is gainful employment is a question of fact for the compensation judge. Hildebrandt_v._City_of_St._Louis_Park, slip op. at 5 (W.C.C.A. Sept. 13, 2004). In determining whether the employee was working at something more than sporadic employment resulting in an insubstantial income for the purpose of obtaining TPD benefits, we have previously reviewed compensation judges’ consideration of many factors. They included: the amount of income earned; the number of hours worked weekly; the nature of the employee’s activities; the facts and circumstances surrounding the employment including the existence or non-existence of any special or familial relationship between the employee and the new employer; and any restrictions on the employee’s work activity. Stevens, slip op. at 4 (citing Hahn_v._Dotson Co., (W.C.C.A. Nov. 20, 1989); Dumonceaux_v._John’s_Constr. Co., 41 W.C.D. 855 (W.C.C.A. 1988); Kosloske_v._Harmon_Glass_Co., slip op. (W.C.C.A. July 3, 1991)).

Here, the employee was working for his father for six months or more after the April 4, 2013, work injury, but was not paid by his father until his TTD benefits ceased. Then, in October 2015, the employee’s father began paying the employee $80.00 a month, for eight hours of work each month at $10.00 an hour for gofer work. Likely, the 10-pound lifting restrictions made it difficult to find work, but the cases cited herein also contained references to similar limitations on the ability to work. While it appears that Mr. Petzel was trying to help his son through a difficult time, the work was nevertheless sporadic at only eight hours per month, and the income was insubstantial at $80.00 per month. Not only do we find that substantial evidence supports the compensation judge’s finding in denying TPD benefits, we also hold that the compensation judge correctly applied the law to the facts of this case. We, therefore, affirm.