SHEILA HANSON, Employee/Appellant, v. KATO CABLE and SFM MUT. INS. CO., Employer-Insurer/Respondents, and ADP TOTALSOURCE and N.H. INS. CO./AIG, admin. by HELMSMAN MGMT., Employer-Insurer/Respondents.

JANUARY 24, 2023
No. WC22-6477

TEMPORARY PARTIAL DISABILITY BENEFITS – WITHDRAWAL FROM LABOR MARKET. Where the employee was not restricted from full-time work and limited herself to part-time remote employment with no search for additional work, substantial evidence supports the compensation judge’s conclusions that the employee voluntarily withdrew from the labor market and was ineligible for temporary partial disability benefits.

    Determined by:
  1. Sean M. Quinn, Judge
  2. David A. Stofferahn, Judge
  3. Thomas J. Christenson, Judge

Compensation Judge:  Nicholas P. Chang

Attorneys:  Deanna M. McCashin, McCashin Law Firm, Ltd. Alexandria, Minnesota, for the Appellant.  Thomas P. Davern, Lynn, Scharfenberg & Hollick, Minneapolis, Minnesota, for Kato Cable and SFM Mutual Insurance Company, Respondents, and Inger Hansen, Erstad & Reimer, P.A., Edina, Minnesota, for ADP TotalSource and New Hampshire Insurance Company/AIG administered by Helmsman Management, Respondents.




The employee appeals from the amended findings and order of a compensation judge, dated June 16, 2022, which denied temporary partial disability (TPD) benefits from and after January 1, 2021.  We affirm.


The employee, Sheila Hanson, worked for the employer, Kato Cable, in its shipping and receiving department, starting in 2016.  Her job duties involved manipulating large, heavy cables, requiring the lifting of large boxes of cables, pulling cables, and moving barrels containing 30,000 feet of copper cable.  Her duties also included overhead and repetitive work.  Shortly after starting employment, she began to develop pain in her left shoulder.  By 2018, she underwent left shoulder surgery performed by Dr. Daniel Buss of Allina Sports and Orthopedic Specialists.  SFM Mutual Insurance Company (SFM), the insurer for the employer at the time, admitted a Gillette[1] work injury culminating on April 23, 2018, and paid various workers’ compensation benefits including wage loss, three percent permanent partial disability (PPD), and medical benefits.  The employee returned to her job with the employer with permanent work restrictions for her left shoulder.

In 2019, the employee began experiencing similar symptoms in her right shoulder extending into her neck and began treatment.  By this time, the employee’s work for Kato Cable was contracted out through ADP TotalSource, which was insured for workers’ compensation liability through New Hampshire Insurance Company/AIG.  They admitted Gillette injuries to the employee’s neck and right shoulder culminating on January 24, 2020.  The employee’s work restrictions remained unchanged, but now applied to both shoulders.  Dr. Joseph Perra of Twin Cities Spine Center treated the employee’s neck and opined that overhead work should be avoided, a restriction already in place regarding the employee’s shoulders.

Dr. Buss opined that the employee did not need right shoulder surgery at that time but cautioned that if she continued to aggravate her shoulder, surgery may be required in the future. Likewise, Dr. Perra opined that the employee’s neck was stable, but that future care, including surgery, might be necessary if her symptoms worsened.  Dr. Buss’s assistant, Vinh Dang, P.A., told the employee to expect recurrence of her symptoms and the need for additional treatment if she stayed in her current occupation.

Despite the employee’s ongoing symptoms, she continued working for the employer, with restrictions.  She testified that often she would be assigned activities that were beyond her restrictions but would do them anyway and her symptoms worsened when she overexerted herself at work.  She also had difficulty performing her regular household chores, which included maintaining the family property where she and her wife resided.

Due to her ongoing symptoms, the employee asked the employer if there were any remote jobs within the company, however she was told that there were no such positions available.  In October 2020, the employee told the employer that she was planning on resigning her job by the spring of 2021.  Shortly thereafter the employer hired a replacement for the employee and asked her to train the replacement.  By November 2020, the employee was essentially just watching her replacement do the job.  On December 1, 2020, the employee submitted a resignation letter stating that she felt she was constructively discharged from her job.

The employee’s wife had been working as a remote employee for approximately 15 years.  She also started her own side business, Atlas Enterprises, developing and maintaining websites.  The couple had discussed for many years their dream of living in an RV and traveling the country, while also maintaining employment as remote employees.

The employee and her wife sold their home around the same time she resigned from the employer.  During December 2020, the employee looked for work over the internet on a single occasion.  The employee and her wife discussed an idea whereby the employee would work for her wife’s side business and learn to become a website designer.  Her initial duties, however, were mostly data entry tasks.  They agreed that the employee would be paid $11 per hour and that as the business grew and the employee’s skills increased, her pay would increase.[2]  The employee started with Atlas on January 1, 2021.

Later in January 2021, the couple purchased an RV and began traveling the country.  The employee continues to work for Atlas about 25-30 hours per week.  She considered enrolling in a skills training program for website design but considered it too expensive.  Instead, she started learning these skills from free classes offered over the internet.

In June 2021, the employee began working with a QRC, Mike Miller.  QRC Miller put together a rehabilitation plan (R-2) stating that the employee’s current job with Atlas was suitable, and that the employee did not need to look for any other work.  He did not suggest any retraining.  Subsequent amendments to the rehabilitation plan (R-3 reports) suggested no changes.

ADP TotalSource and AIG hired Maureen Ziezulewicz to conduct a vocational evaluation.  Ms. Ziezulewicz opined the employee withdrew from the labor market by quitting her job, failing to conduct a job search, and choosing to live in an RV traveling around the country.  Ms. Ziezulewicz also opined that there were other jobs available that the employee could perform in different vocations, including retail management, shipping/receiving, and data entry.

The employee filed a claim petition seeking various workers’ compensation benefits including past and ongoing TPD benefits.  Following a hearing on February 22 and April 19, 2022, the compensation judge issued an amended findings and order on June 16, 2022.  He found the employee had work restrictions related to her permanent left shoulder injury and to her unresolved right shoulder and neck injuries.  He awarded TPD benefits to the employee for various dates from the 2018 injury through the end of 2020.  He denied TPD benefits from and after January 1, 2021, through the date of the hearing.  In his memorandum, he explained that TPD benefits were denied because the employee had withdrawn from the labor market.  He also stated that the employee’s right shoulder and neck injuries were temporary.

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).


The employee makes two arguments.  First, she argues that the compensation judge erred as a matter of law by finding that her right shoulder and neck injuries were not yet resolved, but then later in his memorandum indicated that the injuries were temporary.  While we agree with the employee that an unresolved injury cannot be said to be either permanent or temporary, we note that the discussion contained in a compensation judge’s memorandum is not a finding.  See Minn. Stat. § 176.371 (a compensation judge shall determine all contested issues, whereas a memorandum is only to explain reasoning or to discuss credibility).  In Finding 54, the compensation judge found the employee’s right shoulder and neck injuries were not yet resolved.  This finding controls, not the suggestion by the compensation judge in his memorandum that the injuries were temporary.

Second, the employee argues that the compensation judge erred as a matter of fact and law by failing to award her TPD benefits from and after January 1, 2021.  The employers and insurers argue that substantial evidence in the record as a whole supports the compensation judge’s determination that the employee voluntarily withdrew from the labor market and therefore is not entitled to TPD benefits from and after January 1, 2021.  We agree with the employers and insurers.

While we acknowledge that choosing to work remotely is not necessarily a removal from the labor market, the requirement that the employee search for work within her medical restrictions and earning capacity in order to receive certain workers’ compensation benefits still remains applicable.  In Borchert v. Am. Spirits Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998), the supreme court laid out the standards regarding reduced earning capacity for a TPD benefits claim, stating “it is the employee’s burden to establish a diminution in earning capacity that is causally related to the work injury. ... Whether reduced earning capacity is attributable to the disability or to some other factor is a question of fact for the compensation judge.”  Id. at 215, 58 W.C.D. at 318.  In this case, the issue is whether the employee has effectively removed herself from the full-time labor market.  See Njos v. Torgerson Prop., slip op. (W.C.C.A. Mar. 2, 1999); see also Schroeder v. Highway Servs., 403 N.W.2d 237, 238, 39 W.C.D. 723, 725 (Minn. 1987) (whether an employee has withdrawn from the labor market is a question of fact for the compensation judge).

Here, the employee has restrictions on work activity but not on work hours.  She has not sought any additional work or demonstrated any efforts to improve her work situation or supplement her reduced income.  Ms. Ziezulewicz considered this to be a withdrawal, and the compensation judge was within his discretion to adopt that opinion.  Ms. Ziezulewicz testified that the employee self-limited her workability to “remote only” and even then did not conduct any job search for such work.  While it is true that the employee had secured a remote job, it was only part-time and there was no evidence that the employee made any efforts to secure additional work, remote or otherwise, to further supplement her income.  Further, there is no evidence in the record before us that the part-time data-entry position with Atlas was likely to grow into a full-time career with a comparable earning capacity to that of her prior job with ADP TotalSource.  The employee did not offer any evidence to demonstrate she was actively taking steps to increase her work hours, earning capacity, or expand her job duties with Atlas.  Thus, it was reasonable for the compensation judge to reject the employee’s argument that this part-time job would likely grown into more.

We acknowledge the employee’s argument that she fully cooperated with her QRC and the rehabilitation plan.  Yet, the plan was not in place until after she withdrew from the labor market.  It was not unreasonable under these facts for the compensation judge to conclude the evidence was insufficient to show that the employee had reentered the labor market.  Taken as a whole, the evidence supports the compensation judge’s adoption of Ms. Ziezulewicz’s testimony and opinion that the employee withdrew from the labor market and is not eligible for TPD benefits.  See, e.g., Paine v. Beek’s Pizza, 323 N.W.2d 812, 35 W.C.D. 199 (Minn. 1982).[3]

[1] Gillette v. Harold, Inc., 101 N.W.2d 200, 21 W.C.D. 105 (Minn. 1960).

[2] As of the date of hearing, the employee’s pay had increased to $12.00 an hour.

[3] Because we find there to be substantial evidence to support a finding that the employee withdrew from the labor market, we do not reach the issue of whether the employee has established a claim for TPD benefits including whether her earnings are her presumed earning capacity or whether the employer and insurers have rebutted that presumption.  See Hoover v. Indep. Sch. Dist. No. 84, 71 W.C.D. 633 (W.C.C.A. 2011) (for claims of TPD benefits, the employee’s actual earnings are presumed her earning capacity and the employer and insurer may rebut the presumption with evidence showing a different earning capacity), summarily aff’d (Minn. Oct. 27, 2011); see also Krotzer v. Browning-Ferris Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).