LYNN TRUJILLO, Employee/Respondent, v. PRIDE CONSTR., INC. and MEADOWBROOK CLAIMS SERVS., Employer-Insurer/Appellants.

The employer and insurer petitioned to discontinue the employee’s temporary partial disability benefits, alleging that the employee’s earnings were sporadic, insubstantial and did not constitute substantial gainful employment. The compensation judge denied the petition. The employer and insurer have appealed.

Lynn Trujillo worked as a laborer, doing concrete work for Pride Construction when he was injured on April 16, 2014. He slipped on icy ground at the work site and fell, injuring his right shoulder. The employee was treated by an orthopedist, Benjamin Robertson, M.D., who performed surgery on August 20, 2014. Dr. Robertson repaired a full-thickness tear of the right rotator cuff, subacromial impingement, and a right biceps tendon tear. The employer and its insurer accepted liability for the employee’s injury and paid wage loss benefits as well as related medical expenses. Shortly before the surgery, QRC Judith Gaub was asked to work with the employee.

The employee was not released to return to work by Dr. Robertson until March 2015. At that time he was released to work on a sedentary basis. The QRC contacted the employer about a return to work with the employer. The employer advised the QRC that it did not have work available that was within the employee’s restrictions. In a meeting with the employee and QRC on May 18, 2015, Dr. Robertson changed the employee’s restrictions and allowed him to return to work on a “very light” basis, changing positions as needed, stretching and/or resting every 30 minutes, avoiding bending or lifting, and lifting no more than 10 pounds occasionally.

The employer and insurer requested a second medical opinion on the issue of the employee’s work restrictions and the employee saw a shoulder specialist, Aimee Klapach, M.D., on July 7, 2015. Dr. Klapach ordered an MRI scan of the right shoulder and after she reviewed the scan, Dr. Klapach described the employee’s right rotator cuff as “fragile.” She also stated additional medical treatment for the shoulder would be appropriate. Dr. Klapach recommended additional work restrictions for the employee which would allow lifting of no more than 15 to 20 pounds from floor to table top, 2 to 5 pounds from table top to shoulder height, ½ to 1 pound above the shoulder, and repetitive use of the right shoulder was to be avoided.

After the employee’s release to return to work, the QRC completed an assessment of the employee’s vocational background. Mr. Trujillo was born on February 6, 1961, making him 53 years old on the date of injury. He lives in Henning, Minnesota, a town in north central Minnesota with a population of about 800. His formal education ended with the tenth grade. The employee had started working for Pride Construction in the beginning of 2014. The employee’s wage on the date of injury was $560.00 a week or $14.00 an hour for a 40 hour week. Previous employment was as a concrete laborer for other employers and self-employment installing sheetrock. When he lived in California more than 20 years before his work injury, he was employed as a delivery route supervisor for a newspaper. Testing demonstrated that remedial courses to enhance reading, sentence comprehension, spelling and math computation would be appropriate. Mr. Trujillo did not have a cell phone and did not have access to a computer at his home.

Mr. Trujillo engaged in a job search with the assistance of his QRC and a job placement counselor. He found a job at Ben Hill Recovery Center in Wadena as a resident supervisor/monitor.^[1] The position was part-time, working 24 hours a week at an hourly wage of $9.40. The employee began working at this job on November 4, 2015. On November 7, 2015, Mr. Trujillo sustained a work injury at his new employer in which he fractured his right ankle. He was off work due to this injury and his job search was suspended. The employee was released to work without restrictions from the ankle injury on February 25, 2016. Mr. Trujillo contacted the recovery center about returning to work there but was advised that only a night shift was available. The employee declined to take a job on that basis.

The employee reinstituted his job search and found employment at a hotel, Country Inn and Suites, in Alexandria.^[2] He began working there on May 16, 2016, as a custodian and maintenance worker and was paid $11.00 an hour. The employee testified that this was light work and that he had the assistance of a co-worker for duties beyond his restrictions. The new employment was affected by seasonal conditions and the employee’s hours varied. Wage records show that in the summer months the employee worked 14 hours or more each week. His hours decreased after Labor Day and he generally worked from 4 to 7 hours a week.

In addition to job search, the employee’s rehabilitation plan called for the employee to obtain his GED. The classes to prepare the employee to take his GED exam were held in Wadena. The employee testified that he had difficulty getting to the classes because of the distance and the lack of gas money to get there.

The employer and insurer filed a notice of intention to discontinue (“NOID”) benefits in November 2016, seeking to discontinue the employee’s temporary partial disability benefits. The employer and insurer alleged that the employee’s employment was so sporadic and insubstantial in earnings that it did not rise to the level of gainful employment. The NOID was denied and a petition to discontinue those benefits on the same basis was filed. The petition was heard by Compensation Judge Stacy Bouman on April 18, 2017.

Three witnesses testified at the hearing, the employee, the QRC, and a vocational expert who had evaluated the employee on behalf of the employer and insurer, Maureen Ziezulewicz. Ms. Ziezulewicz testified that, in her opinion, the employee should return to GED classes with a focus on enhancing his computer skills. She also concluded that the employee did not engage in a diligent job search because he did not provide job logs. Based on these factors, she concluded that the employee was not compliant with the job placement plan and agreement (“JPPA”) completed in September 2016. At the hearing, Ms. Ziezulewicz presented a listing of jobs she thought would be appropriate for the employee. She identified four jobs: a part-time security officer in Park Rapids at an unspecified wage; a part-time job with unspecified duties or wage in Staples, Minnesota with Experience Works, a government-funded program for workers over 55; a full-time position as a cashier at a gas station in Staples with an hourly wage of $10; a full-time position as security officer in Park Rapids with an unspecified wage and unspecified as to whether passing a physical examination was required.^[3]

The QRC, Judith Daub, testified as to the employee’s rehabilitation activities and concluded that in her opinion the employee had been compliant with the JPPA and had followed through on job leads provided to him. She also testified that his earnings at his present job were a fair measure of his earning capacity. She also stated that seasonal downturns in available hours were not unusual in the employee’s area. The employee testified at the hearing as to his physical limitations from the work injury, his job search, and his return to work efforts.

The compensation judge denied the petition to discontinue in her Findings and Order issued May 18, 2017. The compensation judge found “QRC Gaub credibly testified that the employee has continued to engage in job search independently by making contacts with people and looking at published leads. Relative to the JPPA, QRC Gaub testified that the employee has been compliant with the JPPA, despite several factors which have hampered his participation, including the employee’s lack of access to a cell phone, lack of access to a computer at his home, and financial difficulties.”^[4]

The compensation judge also found, based on the employee’s testimony, that “the maintenance position at Country Inn and Suites is a permanent position. The available hours vary, depending on the season. The employee has worked all hours available to him and has not turned down or refused any hours.”^[5] The compensation judge determined that “The preponderance of the evidence fails to support a finding that the employer and insurer are entitled to discontinue payment of temporary partial disability benefits.”^[6]

The employer and insurer have appealed.

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).

To be eligible for temporary partial disability benefits, an employee must establish a work-related disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability. Minn. Stat. § 176.101, subd. 2(b); Krotzer v. Browning-Ferris/Woodlake Sanitation Servs., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990). An employee’s actual earnings are presumed to be an accurate reflection of reduced earning capacity. Roberts v. Motor Cargo, Inc., 104 N.W.2d 546, 21 W.C.D. 314 (Minn. 1960); Varela Leal v. Knife River Corp., No. WC16-5959 (W.C.C.A. March 3, 2017). The presumption may be rebutted by evidence which proves the employee’s post-injury earnings are not an accurate reflection of the employee’s current earning capacity. Pierce v. Clarity Glass/SDB Enters., No. WC11-5290 (W.C.C.A. Oct. 24, 2011); Mitchell v. White Castle Systems, Inc., 290 N.W.2d 753, 32 W.C.D. 288 (Minn. 1980).

This court has held that when an employee works at a job which is sporadic and provides insubstantial income, the employment does not reflect a reduced earning capacity and the employee is not entitled to temporary partial disability benefits.^[7] Petzel v. DS Agri Constr., No. WC16-6020 (W.C.C.A. May 16, 2017). We have not attempted to define or provide criteria as to when an employment is sporadic and provides insubstantial income. Whether post-injury employment reflects earning capacity due to a work injury is a question of fact for the compensation judge. Dahlgren v. Johnson Carpet Tile & Linoleum Co., No. WC15-5849 (W.C.C.A. March 14, 2016). As is true in all cases in which the appeal is from a compensation judge’s factual determination, the issue for this court is whether substantial evidence supports the compensation judge’s findings. Minn. Stat. § 176.421, subd. 1; Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.

In the present case, the compensation judge set out her rationale for denying the petition of the employer and insurer in her findings and memorandum. She noted that the employee lives in a rural town with fewer than 1,000 people. He must travel for appointments with his QRC, placement specialist, medical providers, potential employers, and his current employment. His position at Country Inn and Suites is permanent and the employee has worked all available hours. The employee has looked for work with other potential employers using a variety of sources. The judge found the QRC’s testimony, that the employee had been cooperative in rehabilitation efforts, to be credible.

In their appeal, the employer and insurer recognize that the issue here is whether substantial evidence supports the compensation judge’s findings. The arguments made by the appellants are that the employee’s earnings are sporadic because the employee has failed to search for better employment and he has failed to cooperate with rehabilitation. As evidence, they cite to the testimony and opinion of Ms. Ziezulewicz, the failure of the employee to keep job logs, and his failure to obtain a GED.

The employee was cross-examined extensively on the issues raised by the employer and insurer and he provided his explanation as to these issues. The argument made on appeal by the employer and insurer is that that compensation judge should have rejected the employee’s testimony. Instead, the compensation judge, in rejecting this argument at hearing, found the employee to be credible. We have held on a number of occasions that determining credibility of witnesses is uniquely within the province of the compensation judge. The compensation judge has an opportunity to consider the demeanor of a witness in a manner not available to this court. Strohecker v. Mike’s Auto Repair & Tire, L.L.C., No. WC12-5437 (W.C.C.A. Aug, 7, 2012); Baker v. T. Maxwell’s, Inc., No. WC09-5003 (W.C.C.A. Feb. 8, 2010).

The employer and insurer has focused in this case on the quality and sufficiency of the employee’s job search. A diligent job search is not a legal prerequisite for an award of temporary partial disability benefits although it is relevant on the issue of whether alternate employment might be available which would lessen the ongoing wage loss experienced by the employee. Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995); Noble v. St. Paul Arena Co., LLC, No. WC13-5636 (W.C.C.A. Apr. 29, 2014). No such evidence was produced here.

We find substantial evidence supports the compensation judge’s decision and the decision is affirmed.