DONALD CORNELIUS, Employee/Appellant, v. WOODS LANDSCAPING, INC. and GRINNELL MUTUAL GROUP, Employer-Insurer/Respondents, and MINN. DEP’T OF EMPLOYMENT AND ECON. DEV., Intervenor.

The employee appeals from the compensation judge’s determination that the preponderance of the evidence failed to prove that the employee was entitled to temporary total and temporary partial disability compensation during the periods claimed. We affirm.

The employee has an eighth grade education and his job history is primarily that of an agricultural worker, factory worker and temporary laborer. The employee worked for the employer as a landscaper in 2014 at the rate of $14.00 per hour. His job duties included planting trees, applying mulch, doing shoreline riprap, and handling large landscape pavers weighing up to 250 pounds. The employee sustained a work injury to his left knee on October 30, 2015. He initially continued to work but on November 5, 2015, was seen by a physician’s assistant at the Tri-County Health Care Verndale Clinic for left knee pain. She took the employee off work for evaluation. An MRI scan of the left knee on November 23, 2015, showed a large oblique tear of the posterior horn of the medial meniscus. The employee was referred for evaluation by an orthopedic surgeon, Dr. Amy Lelwica, who recommended surgery. On December 22, 2015, the employee underwent a left knee medial meniscectomy and pes anserine bursectomy performed by Dr. Lelwica.

The employee returned to Dr. Lelwica in follow up to the surgery on January 5, 2016. Dr. Lelwica referred the employee to physical therapy and advised the employee that he could “gradually return to activity, letting pain be their guide,” but that it “may take 2-3 weeks before they are able to return to all of their activities at a normal level.” She authorized the employee to return to work on light duty on January 20, 2016. The employee next saw Dr. Lelwica on February 2, 2016. He reported that “[h]e did go back to work and noted increased knee pain with work activities,” and that he had continued to have swelling and pain in the left knee. Dr. Lelwica administered a left pes anserine bursal corticosteroid injection, and took the employee off work for a further week. A Report of Work Ability form completed by Dr. Lelwica on the same date indicated that the employee was to continue off work through February 10, 2016, after which he was authorized to return to work without restrictions. The employer and insurer paid 15 weeks of temporary total disability benefits between the date of injury and February 11, 2016, on which date the employee returned to his pre-injury job.

The employee testified that although he mostly performed his prior work duties after returning to work, he was allowed to avoid certain heavy tasks and to leave early if his left knee bothered him too much. After having returned to work for approximately three weeks, the employee was incarcerated for approximately one month. By April 10, 2016, when he was released from jail, the employer had hired a replacement worker and the employee’s job had ended.

The employee returned to Dr. Lelwica on April 18, 2016. He had minimal knee pain but continued to have hamstring tenderness and knee numbness. Dr. Lelwica released him from care and advised him to return as needed. No work restrictions were imposed.

The employee was seen by a physician’s assistant at his primary care clinic on April 26, 2016. He reported being bothered by his knee pain as well as by chronic back pain, but was advised that no further surgical solutions were available for his left knee.

Dr. Lelwica issued a Healthcare Provider Report on June 6, 2016, placing the employee at maximum medical improvement (“MMI”) and rating him with a 3% permanency, for which permanent partial disability was subsequently paid by the employer and insurer. The employee was served with notice of MMI on June 8, 2016.

On June 29, 2016, the employee contacted Dr. Lelwica’s office by telephone and described a “glove and stocking” numbness in his left lower leg. Dr. Lelwica referred the employee for an EMG to assess possible peripheral neuropathy, but the testing was denied by the insurer and the employee did not pursue it at that time.

From his release from incarceration in April until early August 2016, the employee received unemployment benefits and looked for work at temporary services, on Craigslist, and through the work force center in Brainerd. In his job search, he included landscaping, car detailing, and potato farm work, and testified that he believed he could have performed such work at that time. At the hearing below, the employee testified that there were two positions he believed he would have been hired for, a job detailing cars and another delivering furniture, but for the fact that his driver’s license had been revoked. He also testified that he has continued since his injury to have pain and numbness in his knee which is worse when kneeling, weight-bearing and walking, but that he did not restrict his job search due to any physical limitations associated with his knee.

On August 4, 2016, the employee filed a claim petition requesting payment of temporary total disability benefits from April 10, 2016, through the present and continuing. The employer and insurer denied liability for the requested wage loss benefits.

The employee was unable to find work in the Brainerd area, and moved to Saint Paul at the beginning of August 2016. He applied for work at a temporary job service, which assigned him to a temporary job for Morey’s Seafood packaging fish. This job was full-time but at a wage loss as compared to his wage at the time of injury. He worked in this job until late November 2016, when he left it because he felt that working in a cooler bothered his knee. He was off work for about six weeks. He subsequently obtained a job working at TreeHouse Foods through another temporary service, where he continued to work as of the date of the hearing below. This job involved removing rejected bakery products from production lines. The job paid $11.50 per hour and was performed on an eight-hour per day schedule, but the number of days the employee worked varied based on the employer’s seasonal needs, from as few as two per week to a maximum of six days in a week. The employee testified that the job was a “temp to hire” position, and he hoped eventually to be hired on as a permanent TreeHouse employee, which would provide him with a raise and a full-time schedule. He also testified that after starting this part-time job he had not been looking for a different job or for supplemental part-time employment.

The employee was examined by Dr. Edward Szalapski, an orthopedic surgeon, on behalf of the employer and insurer on December 20, 2016. Dr. Szalapski opined that the employee’s work injury had resulted in both a meniscus injury and a saphenous nerve injury, and that the latter was the cause of the employee’s ongoing symptoms of numbness and tingling. He was of the opinion that the employee had reached maximum medical improvement on April 18, 2016, and that he needed no further treatment or diagnostic studies. In his view, the employee was capable of working full time without restrictions.

The employee returned to Dr. Lelwica on April 17, 2017. He complained of foot drop which had developed over the past year. Dr. Lelwica suspected a peroneal nerve problem. She again advised that the employee undergo an EMG. She imposed permanent work restrictions against climbing, kneeling or balancing. The employee was treated with a cortisone injection and a knee brace was prescribed.

The employee underwent an EMG on June 5, 2017. The study showed abnormalities in the ability to activate the left peroneus longus muscle, the posterior tibialis muscle, and the medial gastrocnemius muscle, but was otherwise normal.

Dr. Szalapski reviewed the EMG findings and commented on them in a supplemental IME report. He noted that the muscles involved were activated by two different nerves and opined that the mechanics of the employee’s work injury and the absence of contemporaneous neurologic findings failed to suggest that an injury had occurred to those nerves at that time. In his view, this aspect of the employee’s condition was unrelated to the work injury. He continued of the view that no work restrictions were necessary for the employee’s condition.

The matter came on for hearing before a compensation judge on July 9, 2017. The employee’s wage loss claims as of the date of hearing were for temporary total disability compensation from his release from incarceration through the date he started working for Morey’s Seafood; for temporary partial disability compensation during that employment; for temporary total disability compensation after he quit working at Morey’s until he started with TreeHouse Foods; and finally, for temporary partial disability compensation for the period worked at TreeHouse Foods through the date of hearing. At the hearing, the employee testified that he continued to experience left knee and leg symptoms and that squatting, bending and stair climbing caused him increased pain. He had been prescribed a brace to help with foot drop. In the employee’s opinion, he would not be able to perform his date of injury landscaping job.

In her Findings and Order served and filed on September 5, 2017, the judge determined that the employee had reached maximum medical improvement on April 18, 2016, although he continued to suffer pain and swelling in the knee as a result of the work injury. The judge also found that the preponderance of the evidence failed to support a finding that the employee was entitled to temporary total and temporary partial disability benefits during the periods claimed. The employee appeals from the denial of wage loss benefits.

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).

To prove entitlement to temporary partial disability benefits, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). The employee sought temporary partial disability compensation for two periods of wage loss; first, during his full-time employment at Morey’s Seafood at a wage loss; and second, during his part-time employment at TreeHouse through the date of hearing. Pursuant to Minn. Stat. § 176.101, subd. 2(b),

There is no dispute that the employee was both employed and earned less than his date of injury wage during the two periods for which he sought temporary partial disability compensation. The compensation judge, however, found that the employee had failed to prove that his loss of earnings during these two periods was causally related to the effects of the work injury.

The compensation judge based her determination on several points. She found that the employee was not under work restrictions at the time he was searching for or obtained either of these jobs. The employee himself testified that he did not restrict his job search leading up to the start of these jobs on the basis of any presumed physical restrictions, and felt he would have tried to do any work available. While there is no finding with respect to whether the employee’s job search leading up to the job at Morey’s Seafood was reasonably diligent, the judge specifically found that the employee had failed to prove that he conducted a reasonably diligent job search during the period of unemployment prior to starting work at TreeHouse. There is no dispute that the employee did no further job search after starting the part-time job at TreeHouse through the date of hearing.

On appeal, the employee contends that the compensation judge erred by failing to apply a presumption of lost earning capacity based on the employee’s actual earnings in these post-injury employments. As a general rule, actual earnings are presumed to be an accurate reflection of a disabled employee’s earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Yvonne v. Super One Foods, 70 W.C.D. 654 (W.C.C.A. 2010). The presumption may be rebutted either with evidence affirmatively indicating that the employee’s ability to earn is something different from her post-injury wage or with other evidence affirmatively establishing that the reduction in the employee’s earnings is unrelated to the employee’s disability. Whether a reduced earning capacity is attributable to the disability or to some other factor is generally a question of fact for the compensation judge. See, e.g., Borchert v. Am. Spirits Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998).

Where an employee has been released to full-time work, but is working part time, the employee generally may have an obligation to make a diligent job search for full-time or supplemental employment. Kunferman v. Ford Motor Co., 55 W.C.D. 464 (W.C.C.A. 1996). This court has also previously held that a failure to conduct a diligent job search may, in appropriate cases, be sufficient evidence to rebut the presumption. Lehman v. Dakota Growers Pasta Co., slip op. (W.C.C.A. September 30, 2003). The issue of earning capacity is factual in nature and is determined by the compensation judge as the trier of fact. Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976); Noll v. Ceco Corp., 42 W.C.D. 553 (W.C.C.A. 1989), summarily aff’d (Minn. Jan. 16, 1990).

Here, in addition, the evidence supported the judge’s finding that the employee was not under any work restrictions or limitations from his injury during the periods in which these jobs were obtained. Absent restrictions or limitations, the judge reasonably found that the employee did not establish that his reduced earnings are related to his work injury. See, e.g., Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W2d 451, 29 W.C.D. 86 (1976). Under all the facts of this case, we conclude that the compensation judge did not err in denying temporary partial disability compensation.

Following his work injury, the employee was paid 15 weeks of temporary total disability compensation. Minn. Stat. § 176.101, subd. 1(e), provides that “temporary total disability compensation shall cease when the employee returns to work.” Accordingly, the employee’s temporary total disability compensation ceased when he returned to work full time for the employer in his pre-injury job on February 11, 2016.

The first period for which the employee sought temporary total disability compensation below ran from April 10, 2016, to August 10, 2016, representing the period during which he was unemployed following his release from incarceration up to the start of his job assignment working at Morey’s Seafood through a temporary service. The second period for which temporary total disability compensation was claimed ran from the date when the employee left the job at Morey’s Seafood until the date he started with TreeHouse Foods. The judge denied the claim for benefits during both periods. Although the employee’s notice of appeal generally states that appeal is taken from the denial of temporary total disability compensation, and lists as appealed the finding denying both periods of claimed temporary total disability compensation, the issue statement and the employee’s brief deal only with the denial for the latter period.

Pursuant to Minn. R. 9800.0900, subps. 1 and 2, issues raised in the notice of appeal but not addressed in the appellant’s brief are deemed waived. We need not, therefore, address in detail the denial of temporary total disability benefits during the first period claimed. In any event, we note that the judge found that the employee was not under medical restrictions during this period, which is sufficient to sustain a denial of temporary total disability compensation pursuant to Minn. Stat. § 176.101, subd. 1(h), which provides for the cessation of that benefit “if the employee has been released to work without any physical restrictions caused by the work injury.”

The second period for which temporary total disability compensation was claimed ran about six weeks, from November 21, 2016, through January 1, 2017, or from the date the employee quit working at Morey’s Seafood to the date he began working at TreeHouse. With respect to the denial of benefits for this period, the judge’s memorandum reveals it was based in part on the employee’s attainment of maximum medical improvement (“MMI”). Once an employee is more than 90 days past the service of MMI, both continuation and recommencement of temporary total disability compensation are generally foreclosed under Minn. Stat. § 176.101, subd. 1, except in specific limited circumstances. The parties stipulated that the employee was served with notice of MMI by letter dated June 8, 2016, although the issue of whether MMI had actually been reached, and if so when, was contested at the hearing.

Following the hearing, the compensation judge found that the employee had reached maximum medical improvement (“MMI”) on April 18, 2016, consistent with the opinion of Dr. Szalapski. The employee’s brief does not contest this finding, and any appeal from the finding giving the date of MMI is therefore waived. Minn. R. 9800.0900, subps. 1 and 2. Accordingly, the ninetieth day following the stipulated date of service of MMI was September 6, 2016. As the claimed period of temporary total disability begins after this date, the employee was not entitled to that benefit in the absence of one of the limited circumstances provided by statute.

The employee argues, however, that benefits should have been awarded pursuant to Minn. Stat. § 176.101, subd. 1(j), which provides, in relevant part:

The employee relies on the finding, based on his testimony, that he left the job at Morey’s Seafood because the job required working in a cooler for portions of the work day, and the cold bothered his knee. He argues that this constitutes an inability to medically continue at his job such as to allow recommencement of temporary total disability compensation.

We note, however, that the no doctor placed the employee under any work restrictions against working in cold conditions, before, during, or after the job for Morey’s Seafood. In his testimony, the employee stated that as a result of the cold conditions, his knee “really ached.” Although the judge found, based on this testimony, that working in cold conditions “bothered” the employee’s knee, that is not the equivalent of a finding that the employee was medically unable to work under those conditions, nor does the evidence here require us to reverse because she did not reach such a finding.

Even had the compensation judge accepted the employee’s claim that he was medically unable to continue at Morey’s Seafood as a result of his injury, the judge also based the denial of temporary total disability compensation on a finding that the employee failed to show that he conducted a diligent job search during this period. Pursuant to Minn. Stat. § 176.101, subd. 1(g), “[t]emporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee’s physical restrictions.” The failure to search for work goes to the weight of the assertion that the employee is totally disabled. An injured employee who is capable of some work “must make a diligent job search to establish total disability.” Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 733 (Minn. 1988). The employee did not provide any testimony or other evidence regarding a job search during this six-week period, other than to testify to having obtained the TreeHouse job through a temporary service.

We conclude that the denial of temporary total disability compensation was well-supported by the record and must be affirmed.