SALLY A. WATSON, Employee,
v.
CASS COUNTY, SELF-INSURED/MINNESOTA COUNTIES INS. TRUST, Employer/Appellant,
And
MINNESOTA DEP’T OF LABOR & INDUS./VRU, Intervenor.
No. WC11-5296
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
January 9, 2012
HEADNOTES
TEMPORARY
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. A
job search is not required for an award of temporary partial
disability benefits, but the nature and extent of any job
search is evidence which the compensation judge may consider
in determining the employee’s earning
capacity. The compensation judge did not err by awarding
temporary partial disability benefits where the employee was
working full time and cooperating with rehabilitation
services.
Affirmed.
John
P. Bailey, Bailey Law Office, Bemidji, MN, for the
Respondent.
Timothy P. Jung, Lind, Jensen, Sullivan & Peterson,
Minneapolis, MN, for the Appellant.
Determined by: Milun, C.J., Wilson, J., and Pederson, J.
Compensation Judge: James F. Cannon
OPINION
PATRICIA J. MILUN, Judge
The
self-insured employer appeals from the compensation
judge’s determination that the employee is entitled to
temporary partial disability benefits. We affirm.
BACKGROUND
On
December 15, 2006, Sally A. Watson, the employee, sustained a
work-related back injury while working as a corrections
officer for Cass County, the employer, which was self-insured
for workers’ compensation liability. The employer
paid various workers’ compensation benefits, including
medical expenses, rehabilitation benefits, and temporary
total disability benefits from December 17, 2006, through
December 13, 2008. The employer did not have light-duty
work available for the employee that could accommodate the
employee’s permanent restrictions.1
The
employee began working with QRC Carmen Eberhardt in March
2007. On August 14, 2008, the employee signed a job
placement plan and agreement which included a requirement
that the employee conduct a job search within a 50-mile
radius of her home near Walker, Minnesota. Barriers to
employment noted in the rehabilitation records included the
rural area where the employee lived and her limited
educational and vocational history. At the onset of
rehabilitation services, the employee expressed her worries
about driving beyond the Walker area to job search. She
clearly stated her preference to find a job in the Walker
area “as she [did] not wish to drive out of town,
especially during the winter.”2
On
January 13, 2009, the employee began working as a substance
abuse technician full time at First Step, which included
driving, chaperoning, and monitoring teens and adults at
outpatient chemical dependency programs. At that point,
the QRC assessed job placement services with the employee
were concluded based on the employee’s full-time
job. In a February 2009 rehabilitation report, the QRC
recommended closing the rehabilitation file since a
rehabilitation conference scheduled for February 10, 2009,
was cancelled by the employer and the employee was no longer
participating in rehabilitation services. In a March
2009 rehabilitation report, the QRC recommended closing the
file or suspending rehabilitation services given the fact
that the employee had been working in a full-time
position. There is no record of a response by the
employer to the QRC after the claims representative withdrew
a rehabilitation request in February of 2009. It was the
employee’s attorney who requested that the
rehabilitation file remain open since the employee was
working full time at less than her pre-injury wage but the
employer was not paying temporary partial disability
benefits. On April 16, 2009, the parties signed a
rehabilitation plan amendment to keep the file open for
services as requested and where appropriate. On
September 24, 2009, the insurer agreed to suspend
rehabilitation services for 90 days since the QRC had not
been providing active services for several months and the
employee was working full time.
From
November 17 through December 16, 2009, the employee was laid
off and received unemployment benefits while her employer was
changing locations. The employee then returned to work
part time for First Step at the new location. In January
2010, the parties agreed to another 90-day suspension of
rehabilitation services. In April 2010, the
employee’s QRC once again recommended closing the
employee’s rehabilitation file. Thereafter, the
employee stopped working...
