TEMPORARY PARTIAL DISABILITY – SUBSTANTIAL EVIDENCE. Substantial evidence, including witness testimony and records of the rehabilitation consultant, supports the compensation judge’s determination that the employee is entitled to temporary partial disability benefits.
Compensation Judge: Kristina B. Lund
Attorneys: Mark Freeman, Thill & Freeman, PLLC, Minneapolis, Minnesota, Respondent. Kirk C. Thompson, Kirk C. Thompson Law Office, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employer and insurer appeal from the compensation judge’s award of wage loss benefits to the employee. We affirm.
The employee, Marjorie Helander, is a 77-year-old woman who began working for the employer, Good Samaritan Homes, as a part-time nurse in 2002. She worked four eight-hour shifts every two weeks.
On August 22, 2020, the employee suffered an admitted injury to her right shoulder as a result of a trip and fall incident. Initial conservative care did not alleviate her symptoms. On November 11, 2020, the employee had an MRI that showed a massive full-thickness tear of the rotator cuff involving the entire distal supraspinatus and infraspinatus tendons, high-grade tearing of the upper to mid-central fibers of the subscapularis, supraspinatus and infraspinatus muscle atrophy, moderate acromioclavicular joint osteoarthritis, and rupture of the long head biceps tendon. She was given work restrictions and was referred for a surgical evaluation.
The employee was seen for an independent medical examination by Dr. Ross Paskoff at the request of the employer and insurer. In his January 7, 2021, report, Dr. Paskoff opined that the employee’s work injury caused tearing of the upper border of the subscapularis tendon and rupture of the long head of the employee’s bicep tendon and recommended a cortisone injection. However, Dr. Paskoff opined that the employee’s massive rotator cuff tear is “completely unrelated to the work related injury.” It was Dr. Paskoff’s ultimate medical opinion that while right shoulder replacement surgery was reasonable and necessary, it was not work related, but instead “due to pre-existing chronic underlying rotator cuff arthropathy.”[1]
The employee was seen for a surgical consultation by Dr. James Gannon at Summit Orthopedics on February 1, 2021. Dr. Gannon reviewed the MRI results, examined the employee, and recommended reverse shoulder arthroplasty. It was his expert opinion that the employee’s condition and need for surgery were “completely related to her work-related slip and fall.”[2]
The employee underwent right shoulder replacement surgery in March 2021 and was taken off work through May 3, 2021. A QRC was assigned to the case and a rehabilitation plan was filed.[3] On June 8, 2021, Dr. Gannon updated the employee’s work restrictions to light-duty activities under lifting restrictions. The employee intended to return to work for the employer but was informed that no work was available within her restrictions. On October 4, 2021, Dr. Gannon noted that it would not be safe for the employee to return to nursing duties. He issued permanent restrictions, limiting the employee to light-duty work, ten-pound lifting to waist level, and one-pound lifting to shoulder level and overhead. She was not restricted in the number of hours she could work within these restrictions. Dr. Gannon opined that the employee had reached maximum medical improvement.[4]
The initial March 2021 rehabilitation plan and a June 2021 amendment contemplated a return to work with the employer. Another amendment filed in October 2021 indicated that job placement services would begin, with the goal of obtaining suitable, gainful employment within the employee’s permanent restrictions. The employee then informed QRC Durbin that she did not intend to return to the nursing field and was interested in part-time positions with variable hours and days of the week.[5] According to the testimony of the employee and QRC Durbin at hearing, a Job Placement Plan and Agreement (JPPA) was completed in November 2021.[6]
The employee conducted a job search and ultimately accepted a position as a part-time card merchandiser with American Greetings. This position began on December 1, 2021, and paid a rate of $13.10 per hour. This rate had increased to $15.50 by the time of the hearing. The available hours varied but averaged 9.4 hours per week. The employee had asked for additional hours and was told she was being given all available hours.[7] The employee’s restrictions were accommodated, and she enjoyed the job. QRC Durbin considered this position to be suitable for the employee and consistent with the rehabilitation plan.[8] In January 2023, rehabilitation services ended, and the file was closed. The employer and insurer made no objection and took no further action.
At the request of the employer and insurer, QRC Steven Hollander conducted a vocational evaluation of the employee. He administered vocational testing and conducted a labor market survey, in which he identified a number of part- and full-time jobs within the employee’s restrictions. According to his December 19, 2022, report, and testimony at hearing, it was Mr. Hollander’s opinion that the employee could do more to remedy her loss of earnings and had an earning capacity of at least $600.00 per week. He did not consider the employee’s American Greetings job to be economically suitable.[9]
On her own and without the assistance of a QRC, the employee continued a job search and pursued some of the positions identified by Mr. Hollander.[10] She received no job offers.
The employee’s claims for various workers’ compensation benefits came on for hearing before a compensation judge at the Office of Administrative Hearings on June 8, 2023. At issue was whether the employee’s August 22, 2020, work injury remained a substantial contributing factor to her ongoing symptoms, disability, and treatment, and whether she was entitled to wage loss benefits, medical benefits, and permanent partial disability benefits. The compensation judge granted the employee’s claim in its entirety. The employer and insurer filed an appeal.
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 compensation judge awarded the employee’s claim in its entirety. The only issue appealed and briefed to this court is the award of temporary partial disability (TPD) benefits, on and after December 6, 2021.
An employee seeking TPD benefits must demonstrate: 1) a work-related disability, 2) an ability to work subject to the disability, and 3) an actual loss of earning capacity that is causally related to the disability.[11] TPD benefits are based upon the difference between the weekly wage of the employee at the time of injury and the wage the employee is able to earn in the employee’s partially disabled condition.[12] Generally, an employee’s actual earnings are presumed to be an accurate reflection of the ability to earn or earning capacity.[13] This presumption can be rebutted by the employer, which bears the burden of showing evidence of “more than a theoretical possibility of a different position or wage.”[14] An employee’s earning capacity is a factual determination to be made by the compensation judge.[15]
The employer and insurer contend that the employee’s loss of earning capacity is not related to the work injury and that they rebutted the presumption that the employee’s actual earnings are representative of her earning capacity. We are not persuaded by the appellants’ arguments.
This appeal raises two questions for consideration. First, whether the employee’s actual earnings at American Greetings constitute only insubstantial income which does not reflect her actual earning capacity. Second, whether there is substantial evidence in the record to support the award of benefits where the JPPA was not submitted into evidence.[16]
The Workers’ Compensation Court of Appeals will uphold the factual findings of the compensation judge if they are supported by substantial evidence and were reached through application of the correct legal standard.[17] Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[18] In reviewing for substantial evidence to support the judge’s findings, we do not make credibility determinations.[19] With this standard of review in mind, we consider the employer and insurer’s argument that the record lacks substantial evidence to support the compensation judge’s findings and that those findings are manifestly contrary to the evidence. When a factual determination is made based upon evidence that could lead to more than one interpretation or could reasonably lead to a different result, we affirm. [20]
The appellants present essentially the same arguments that failed to persuade the compensation judge at the hearing below. They assert that the employee is capable of working full-time hours and that suitable full-time positions are available. The employer and insurer characterize the employee’s reduced earnings in her part-time position with American Greetings as a personal choice unrelated to her injury, and therefore not a compensable basis for TPD benefits. This argument was not accepted by the factfinder.
In determining that the employee’s reduced earning capacity is related to her work injury, the compensation judge relied upon the record as a whole, which included the testimony of QRC Durbin, and the testimony of the employee. The employee was released to work with permanent restrictions in October 2021, and was told by her treating physician to avoid nursing duties. The employer could not accommodate the employee’s restrictions. The QRC testified that because the employee would not be returning to work with the employer, and would not be returning to the nursing profession, the rehabilitation goal was to secure another part-time position for the employee.[21] The employee and the QRC testified that American Greetings was able to accommodate the employee’s work restrictions. The QRC testified that it was her opinion that the American Greetings position was suitable employment and was consistent with the rehabilitation plan.[22]
Given the unique facts in this case, it was reasonable for the judge to find that the part-time American Greetings position restored the employee’s economic status as soon as possible and as nearly as possible to that which the employee would have enjoyed without disability, as required by Minn. R. 5220.0100, subp. 34. Economic status includes not only wages, but also fringe benefits and the opportunity for future income and advancement, taking into consideration the employee’s age, education, interests, skills, and employment history.[23] Where the employee was not working full time at the time of injury, it was not an abuse of discretion for the judge to consider the time and hours the employee was working both before and after the injury in determining whether she had a diminished post-injury earning capacity. Prior to the work injury in 2020, the employee continuously worked part time for nearly two decades after her employment began with the employer in 2002. The judge further concluded that a full-time position would dramatically alter the employee’s reasonable and responsible pattern of living. This conclusion relied on Minnesota workers’ compensation case law and was reasonable.[24]
The compensation judge found that the employer and insurer did not rebut the presumption that the employee’s actual earnings represented her earning capacity. The employee fully cooperated with rehabilitation services and diligently searched for full-time and part-time jobs, both on her own and with the assistance of a rehabilitation specialist. She requested more hours with her current employer and works all the hours that she is assigned. She pursued job leads, including full-time and part-time positions identified by the employer and insurer’s expert, but was unsuccessful in obtaining those jobs.[25] We agree that, given the facts of this case, the employer and insurer did not rebut the presumption where the job leads identified by the employer and insurer’s expert, QRC Hollander, had been followed up on by the employee and were not available to her. Under these facts, it was reasonable for the compensation judge to conclude that the employee met her burden to show that her reduced earning capacity is related to her work injury and that her actual earnings are a fair measure of her earning capacity. The record in this matter contains substantial evidence which supports the compensation judge’s award of TPD benefits. We affirm under the standard of review in Hengemuhle.
The appellants also ask this court to review the findings and order of the compensation judge as an abuse of discretion. We find no deficiencies in the compensation judge’s analysis of the evidence that are manifestly contrary to the weight of the evidence in the record.
[2] Ex. B. Both Dr. Gannon and Dr. Paskoff considered the right shoulder arthroplasty to constitute reasonable and necessary treatment. Dr. Gannon opined that the surgery was causally related to the work injury, while Dr. Paskoff opined that the surgery was related to an underlying pre-existing degenerative condition. The opinion of Dr. Paskoff was rejected by the compensation judge, who found that the employee’s condition and need for surgery was casually related to the work injury. (Finding 43.) This finding was not appealed.
[3] Rehabilitation services were initiated in the fall of 2020 with QRC Angela Sokol. Those services were terminated when the employer and insurer denied liability for the injury. The employee began working with QRC Karen Durbin, DOLI/VRU in June 2021. (Ex. C.)
[4] Ex. B.
[5] T. at 66; Ex. C.
[6] T. at 66, 105-06. The JPPA was not submitted into evidence at hearing before the compensation judge. While the employee filed a copy of the JPPA with her appellant brief, this court has not reviewed or considered that document, as it is not part of the appellate record. See Minn. Stat. § 176.421, subd. 6; see also Vagts v. Tromco Elec., 48 W.C.D. 622 (W.C.C.A. 1993). The employer and insurer assert that the compensation judge inappropriately relied on the JPPA, which was not in evidence, in making her findings. However, Finding 41 references the testimony of the QRC rather than the JPPA.
[7] T. at 71.
[8] Id. at 111.
[9] Ex. 5; T. at 156-58.
[10] T. at 196, 201-04.
[11] 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.W.2d 451, 29 W.C.D. 86 (1976).
[12] Minn. Stat. § 176.101, subd. 2.
[13] 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).
[14] Patterson v. Denny’s Rest., 42 W.C.D. 868, 875 (W.C.C.A. 1989).
[15] Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976); Borchert v. Am. Spirits Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998).
[16] The compensation judge also awarded temporary total disability (TTD) benefits from November 1 to December 5, 2021. The award of TTD benefits was identified as an issue appealed by the employer and insurer in their notice of appeal; however, this issue was not briefed. “Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be addressed by the court.” Minn. R. 9800.0900, subp. 1. We decline to address this issue.
[17] See Minn. Stat. § 176.421, subd. 1; Hengemuhle, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239); Northern States Power Co.., 304 Minn. 196, 201, 229 N.W.2d 521, 524.
[18] Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
[19] See Even v. Kraft, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
[20] See Northern States Power Co., 304 Minn. at 201, 229 N.W.2d at 524.
[21] T. at 101-02.
[22] Id. at 111-12.
[23] See Huderle v. Sanford Clinic Bemidji, slip op. (W.C.C.A. Jan. 26, 2016) (citing Minn. R. 5220.0100, subp. 34).
[24] See Scheidt v. Metro. Council, slip op. (W.C.C.A. Nov. 2, 2001) (a refusal of a job offer may be reasonable if it would “dramatically alter a reasonable and responsible pattern of living”); Punt v. Bayliner Marine Corp., 44. W.C.D. 372 (W.C.C.A. 1990).
[25] See Shaughnessy v. Dalbec Roofing, slip op. (W.C.C.A. Aug. 10, 2000) (to rebut the presumption the employer must show that higher paying work is actually available to the employee).