EVIDENCE – EXPERT MEDICAL OPINION. Substantial evidence in the record supports the compensation judge’s determination that the work-related injury caused a medial meniscus tear. The medical opinions relied upon by the compensation judge were not lacking in foundation with regard to the mechanism of injury.
TERMINATION OF EMPLOYMENT – MISCONDUCT. Substantial evidence in the record supports the compensation judge’s determination that the employee was not terminated for misconduct such that he was not entitled to wage loss benefits.
TEMPORARY TOTAL DISABILITY; JOB SEARCH. Substantial evidence in the record supports the compensation judge’s determination that the employee conducted a diligent job search.
TEMPORARY PARTIAL DISABILITY – EARNING CAPACITY. Substantial evidence in the record supports the compensation judge’s determination that the employee is entitled to temporary partial disability benefits in the absence of evidence to rebut the presumption that the employee’s actual wages reflect his earning capacity.
Compensation Judge: Stephen R. Daly
Attorneys: Donald F. Noack, Jr., Law Offices of Donald F. Noack, Jr., Mound, Minnesota, for the Respondent. Christine L. Tuft, Susan E. Larson, Emily A. LaCourse, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
DEBORAH K. SUNDQUIST, Judge
The employer and insurer appeal the compensation judge’s findings that the employee injured his right knee while working for the employer on August 9, 2016, which resulted in the need for medical treatment, surgery, medical restrictions, and wage loss. Because substantial evidence supports the compensation judge’s findings, we affirm.
Mr. Juvenal Mendoza Espinobarros, the employee, was born in Mexico, educated to the ninth grade, and arrived in the United States in 2001. He then worked primarily at restaurants and in landscaping, performing mostly manual labor. In November 2015, Installed Building Products, the employer, hired him to waterproof homes.
The waterproofing job involved installing boards and drain tile pipes, and moving rocks, plastic, and foaming around home foundations. It required heavy lifting, climbing, squatting, bending, and kneeling. About ten months after the employee began working for the employer, on August 9, 2016, he was digging in a ditch when his shovel became stuck in the dirt. As he used force to extract the shovel, it came loose causing the handle to strike the inside, or medial side, of the employee’s right knee.
The employee initially felt pain and told his co-worker about the injury, but finished working his shift. That evening, after he returned home, the employee’s knee began to swell and make a clicking sound. He returned to work the next day and reported the injury to his manager who sent him to see a doctor at Apple Valley Medical Clinic.
The employee saw Erin Nordby, M.D., at urgent care. It was noted that the employee did not have a primary provider and was visiting Apple Valley Medical Clinic for the first time. He gave a history of his shovel hitting the right knee when digging a hole and pulling the shovel out of the ground. He reported right knee pain, swelling, and cracking of the knee. Dr. Nordby ordered an x-ray which showed a small joint effusion with some fullness in the suprapatellar bursa. Prior to the injury, the employee had no history of knee injuries or treatment.
On August 15, 2016, the employee began treating with Samuel A. Bugbee, M.D., at Park Nicollet Methodist Hospital. The employee again reported that he hit the back end of the shovel on the medial side of the knee. On examination the employee had pain with full flexion and the swelling had improved. Dr. Bugbee restricted the employee to light work and ordered an MRI.
The employer provided light duty work for the employee, but fired him on October 10, 2016. While the employer and insurer alleged the termination was due to misconduct, no documentation was provided to support the allegation. The employee testified that he did not understand why he was terminated. Thereafter, the employee filed a claim petition seeking temporary total disability benefits, permanent partial disability benefits, medical benefits, and vocational rehabilitation.
On October 21, 2016, the employee underwent an MRI scan which showed “focal blunting of the apical free edge posterior body of the medial meniscus, suspicious for a small radial tear.” (Ex. AA). On the same day, the employee saw Jeffrey Rasch, D.O., who reviewed the MRI scan and recorded a different version of how the knee injury occurred. He noted that the employee’s foot slipped off the shovel and his right knee hit the edge of the shovel. Dr. Rasch diagnosed the employee with right knee pain secondary to contusion. He restricted the employee from lifting over 50 pounds.
A week later, on October 28, 2016, the employee met with a QRC for a vocational rehabilitation consultation. The QRC reported that the employee was a “qualified employee,” and completed and signed the Rehabilitation Plan (R2) on October 31, 2016. The QRC sent the R2 to the employer on December 2, 2016, but the employer and its insurer, Zurich North America, denied authorization for job placement.
Because job placement was not authorized, the QRC encouraged the employee to look for work on his own, which he did. He found a job on January 20, 2017, taking down Christmas lights. He eventually began landscaping work earning less than his pre-injury wage.
After physical therapy and a series of injections failed to reduce the employee’s symptoms, Dr. Bugbee referred the employee to an orthopedic surgeon. The employee saw orthopedic surgeon Kirk J. Aadalen, M.D., in December 2016. On examination, Dr. Aadalen noted a positive McMurray’s sign and diagnosed an “acute medial meniscal tear, right.” (Ex. AA). He recommended surgery to repair the medial meniscal tear.
The employee saw orthopedic surgeon Michael J. D’Amato, M.D., for an independent medical examination for the employer and insurer on March 20, 2017. (Ex. 1). Dr. D’Amato reviewed medical evidence, examined the employee, and took a medical history. On examination, Dr. D’Amato noted that the employee’s gait, strength, and range of motion were normal, but confirmed the presence of a click or “mild patellofemoral crepitation.” (Id.) Although he diagnosed a medical meniscal tear, Dr. D’Amato noted inconsistencies in the reported mechanism of injury. He opined that the mechanism of injury described to him, in which the employee pulled the shovel striking him in the anteromedial aspect of the knee, would not have caused the medial meniscal tear. He concluded that the meniscal tear was unrelated to the work injury, that the injury resolved as of October 21, 2016, and that permanent partial disability (PPD) was not warranted. For the non-work-related condition, he provided restrictions which included no repetitive bending, climbing, squatting, and kneeling. He also determined that surgery to repair the tear was reasonable and necessary regardless of causation.
The employee also saw Robert Wengler, M.D., whom he had retained for an opinion on permanency. Dr. Wengler described the mechanism of injury in a manner similar to Dr. D’Amato’s description. “He was digging in a pit next to a foundation when he attempted to extract the shovel from sticky dirt (clay?), and it unexpectedly came loose, striking him on the inner aspect of the right knee.” (Ex. E.) Dr. Wengler opined that the employee was entitled to a two percent PPD rating (Minn. R. 5223.0510, subp. 3B (1)) which was causally related to the injury of August 9, 2016. He also provided restrictions and determined that the recommended surgery was reasonable and necessary medical treatment.
The matter was heard on September 1, 2017. While admitting that the employee suffered a work injury on August 9, 2016, the employer and insurer denied that the injury was ongoing. Instead, they argued that the injury was a contusion which was temporary in nature and had resolved by October 21, 2016. The employer and insurer also claimed that the employee was not entitled to temporary total disability benefits because he was terminated for misconduct and failed to conduct a diligent job search. The compensation judge found that the employee’s work-related right knee injury was a substantial contributing factor to his current condition and need for surgery. He further found that the employee was not terminated for misconduct and had conducted a diligent job search. He awarded wage loss benefits, medical treatment including surgery as recommended by Dr. Aadalen, and vocational rehabilitation. Because the surgical excision was a precondition to the two percent PPD rating under Minn. R. 5223.0510, subd. 3B (1), the judge determined an award of PPD was premature. The employer and insurer appeal the judge’s Findings and Order, arguing that substantial evidence failed to support the decision.
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 employer and insurer argue that the opinions of Drs. Aadalen and Wengler are flawed as they are without proper foundation and therefore not credible. They argue that the mechanism of injury, described in the records in two different ways, is inconsistent with a medial meniscus tear. They allege that because Drs. Aadalen’s and Wengler’s opinions are based on an inaccurate description of the injury, their opinions lack adequate foundation.
We are not persuaded. From the initial examination at Apple Valley Medical Clinic on the day after the injury to the MRI scan months later, the description of the mechanism of injury is consistent. The employee struck the inner part of his right knee when he attempted to loosen the shovel from the ground. Only when Dr. Rasch examined the employee on October 21, 2016, does the description of the mechanism of injury begin to differ from the original description to involve the employee’s foot slipping on the shovel. Dr. Aadalen appears to mirror the description of the injury noted by Dr. Rasch. Furthermore, Drs. Wengler, Bugbee and D’Amato all provide a description of the mechanism of injury which aligns with the initial description documented in the urgent care notes. Based on the employee’s testimony and the medical records, substantial evidence supports the finding that the mechanism of injury was a blow to the inner side of the right knee which occurred while the employee attempted to extract the shovel from sticky ground.
Assuming the mechanism of injury occurred in this manner, the employer and insurer maintain that the blow would still not have caused a tear of the medial meniscus. Dr. D’Amato opined that “Simply being struck on the knee is not a mechanism that would be expected to cause the radial-type tear of his medial meniscus as noted on the MRI.” (Ex. 1). Rather, because there was no evidence of significant soft tissue trauma or bone bruising, Dr. D’Amato concluded that the blow caused only a contusion.
Dr. D’Amato’s opinion, while persuasive, was not adopted by the compensation judge. The judge explained the basis for the finding of a causal connection between the injury and meniscus tear in the memorandum. The employee had no prior right knee injuries or symptoms until the injury of August 9, 2016; the MRI and positive McMurray’s sign were consistent with a meniscal tear; and the employee credibly testified about the symptoms he experienced on and after August 9, 2016. We agree that the judge’s reasoning is well supported by substantial evidence, and we affirm the judge’s finding of a causal connection between the employee’s injury and a medial meniscal tear. By implication, we also affirm the judge’s finding that the injury was not temporary. Because the injury resulted in a meniscal tear requiring surgery, which has yet to be performed, we agree that the injury was not a temporary aggravation that ended on October 21, 2016.
The employer and insurer also argue that substantial evidence fails to support the judge’s finding that the employee was not terminated for misconduct. In defining misconduct, this court has previously held that it requires “conduct evincing such wilful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in the carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of [the] employer’s interest or of the employee’s duties and obligations to the employer.” Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998) (citing Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973)); see also Moon v. A Chance to Grow, Inc., 68 W.C.D. 41 (W.C.C.A. 2008). Generally, the burden of proof rests with the employer to show that the employee was terminated for misconduct. See Moon, 68 W.C.D. at 49-51. Here, there is insufficient proof that misconduct occurred. The only evidence of alleged misconduct was testimony from the employee himself regarding hours worked. There is no evidence that the employee did anything wrong or violated any company policy, let alone willfully or wantonly disregarded his employer’s interests. We therefore affirm the judge’s finding that employer failed to meet its burden to show misconduct occurred.
The employer and insurer argue substantial evidence does not support the finding that the employee conducted a diligent job search and therefore the employee is not entitled to temporary total disability benefits. Citing Redgate v. Sroga’s Standard Serv., 421 N.W.2d 749, 40 W.C.D. 948 (Minn. 1988), they contend that the employee must show that the work he is capable of doing is unavailable and unavailability is shown by a diligent job search. Id. Furthermore, the employer and insurer argue that the employee is not entitled to temporary partial disability benefits as it appeared that the employee was self-limiting his earning capacity. They maintain that the employee did not look for work every day, or for additional work to supplement his current job even though he was released to medium work in October 2016.
Whether an employee conducts a reasonably diligent job search is a question of fact for the compensation judge. Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987). In finding that the employee was entitled to temporary total disability benefits, the judge reasoned that the employee faced substantial barriers to employment including restrictions, pending surgery, limited English, limited education, and a job history of physical labor. In addition, the employer and insurer denied job placement services. While the absence of rehabilitation assistance or job placement services does not relieve the employee of his obligation to conduct a diligent job search, it is an element to be considered and he will be held to a lesser standard of diligence. Meier v. Cuyuna Reg’l Med. Ctr., slip op. (W.C.C.A. Feb. 2, 1996) (citing Barrientos v. Heartland Foods, Inc., slip op. (W.C.C.A. Jan. 27, 1995)); Binning v. Donahue & Assocs., slip op. (W.C.C.A. Aug. 10, 1992) (citing Westacott v. Formac Corp., 37 W.C.D. 79 (W.C.C.A. 1984)). Despite the barriers faced and lack of job placement services, the employee conducted a job search at least to the extent he found a job and was working within only a few months. Substantial evidence supports the compensation judge’s finding that the employee conducted a reasonably diligent job search.
It is well established that entitlement to temporary partial disability benefits requires the employee to establish four elements: 1) a work-related injury resulting in disability; 2) loss of earning capacity causally related to the work-related disability; 3) the employee must be able to work subject to the disability; and 4) there must be an actual loss of earning capacity. Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). The employer and insurer argue that the employee is self-limiting his earning capacity.
Generally, an employee’s actual earnings are presumed to be an accurate reflection of the ability to earn or earning capacity. Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976). The employer bears the burden of showing sufficient evidence to rebut this presumption. Malloy v. Hokanson Plumbing, slip op. (W.C.C.A. Mar. 19, 1992). Here, the employer did not rebut the presumption that the employee’s current earnings are an accurate reflection of his earning capacity with any evidence of available jobs which the employee could perform given his disability, or that his lower earnings are unrelated to his disability. The employee’s actual wages are therefore presumed to be an accurate reflection of his earning capacity. Because substantial evidence supports the judge’s finding that the employee is entitled to temporary partial disability benefits, we affirm.