MYRNA J. GILES, Employee,
v.
STATE, DEP'T OF TRANSP., SELF-INSURED, Employer/Appellant.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
January 6, 1999
HEADNOTES
WITHDRAWAL
FROM LABOR MARKET - SUBSTANTIAL EVIDENCE. Substantial
evidence supports the compensation judge's determination
that the employee did not withdraw from the labor market by
moving from the Twin Cities to Albert Lea where the employee
obtained employment within two months after moving to Albert
Lea, has maintained employment since, and cooperated with
rehabilitation services in conducting a job search.
EARNING
CAPACITY - SUBSTANTIAL EVIDENCE. Substantial evidence
supports the compensation judge's determination that the
employee's post-layoff earnings in Albert Lea are an
accurate reflection of her present earning capacity
where the sole evidence rebutting the employee's claim
was evidence of jobs available in the metropolitan area prior
to her move to Albert Lea.
Affirmed.
Determined by Johnson, J., Wheeler, J., and Wilson, J.
Compensation Judge: Kathleen Nicol Behounek
OPINION
THOMAS
L. JOHNSON, Judge
The
self-insured employer appeals from the compensation
judge's finding that the employee proved a loss of
earning capacity causally related to her personal injury and
from the judge's consequent award of temporary partial
disability benefits. We affirm.
BACKGROUND
Myrna
Giles, the employee, injured her back on January 27, 1988,
while working for the self-insured employer, Minnesota
Department of Transportation. The employee was paid
$10.92 an hour and her weekly wage was $436.80. The
self-insured employer accepted liability for the
employee's personal injury. The employee suffers
from degenerative disc disease of the lumbar spine as a
result of her work injury. She has permanent
restrictions on her work activities which preclude her return
to her pre-injury job as a highway maintenance
worker. In 1989, the parties settled the employee's
claim for a 10.5 percent whole body disability. An award
on stipulation was filed on December 7, 1989.
The
employee was born and raised in Albert Lea,
Minnesota. She is currently 62 years of age. She
attended Mankato State University and graduated with a degree
in music education in 1967. (T. 16.) Some time
thereafter, she completed a course in offset printing at
Austin Community College. (T. 17.) The employee has
a varied work history. After graduation from college,
she worked as a music teacher in Elkton and New Richland,
Minnesota, from 1968 through 1972. (T.
19-20.) Between 1973 and 1975 the employee worked for
the State of Minnesota, Department of Welfare. (T.
20.) The employee did not work from 1975 through
1979. From 1979 through 1981 she was the dog catcher for
the City of Albert Lea. In 1981, the employee went to
work for Brown Printing in Waseca, Minnesota. The
employee injured her right shoulder after two days and did
not return to work at Brown. (T. 21.) From 1982
through 1984 the employee worked for Rehbein Construction
Company. The first summer she worked in St. Paul,
Minnesota, and the second in Montana. (T.
21-22.) From 1985 to 1986, the employee worked part-time
at Naeve Hospital in Albert Lea, Minnesota, as a home health
care aide. (T. 22.) On November 12, 1986, the
employee was hired as a highway maintenance worker by the
employer where she worked until her injury on January 27,
1988. (T. 23.)
The
employee was unable to return to her job as a maintenance
worker after her work injury. The employer initially
transferred the employee to its offices in Owatonna,
Minnesota, where she performed light-duty clerical
work. Several months later, the employee was transferred
to the Department of Finance in St. Paul, Minnesota. She
worked as a clerk for the department from approximately
November 1988 through November 1995. It is undisputed
the clerk job was within the employee's physical
restrictions. The employee's earnings with the
Department of Finance exceeded her pre-injury wage. (T.
108-109.) During this period, the employee commuted from
her home in Nerstrand, Minnesota, to her office in St. Paul,
a trip of approximately 45 minutes. (T. 26.) The
employee also owned a house in Albert Lea, Minnesota, which
she rented to tenants. (T. 15.)
In
early September 1995, the Department of Finance notified the
employee she would be laid off effective November 11,
1995. The employee was formally advised by the State of
Minnesota Department of Finance of the layoff by letter dated
October 11, 1995. The letter further explained the
employee's rights to "claim" vacant positions
in other state agencies. (Resp. Ex. 3.) The letter
stated, in part:
Article 15 of the AFSCME, Council 6, Bargaining Agreement,
describes the procedures for handling layoffs. Of the
options described in Article 15, none within our department
are available to you at this time. Unless circumstances
change your layoff will be effective the close of the workday
November 14, 1995. The length of the layoff is
indefinite.
As an employee facing layoff, you have the right to
"claim" vacant positions at an equal or lower level
in other state agencies for which you are determined to be
qualified. You can schedule advisory testing through me
or the Department of Employee Relations in order to determine
if you are qualified for any positions that may be
available. I have requested a list of open requisitions
from the Department of Employee Relations so you will have
the opportunity to claim any positions that may be
available. I should receive the first list on Monday or
Tuesday of next week.
The
employee acknowledged she was aware of her claiming rights
under the union contract. (T. 58-59.)
Deb
Patrin, a personnel executive with the Department of Finance,
testified at the hearing.
1 Her job duties included
assisting employees with transitions to new jobs after
layoffs. Ms. Patrin began working with the employee
before her November 11, 1995 layoff. Ms. Patrin
personally met with the employee...
