Pacyga v. FMC Corp. ( 1998 )

OPINION

PAGE, Justice.

This workers’ compensation matter comes before us on certiorari on the relation of FMC Corporation (FMC) and its workers’ compensation insurer, American International Group, to review a decision of the Workers’ Compensation. Court of Appeals (WCCA) reversing the compensation judge’s denial of temporary partial disability benefits. We reverse and reinstate the decision of the compensation judge.

Joseph A. Pacyga, Jr. worked for FMC, a manufacturer of naval guns and rocket launching equipment, from 1955-1957 and was rehired in 1966. On September 21,1993, while working in a quality control inspector position, he sustained a compensable low back injury. Pacyga sought medical attention at Coon Rapids Medical Center where he was given back-related work restrictions. He submitted the work restrictions to FMC’s health services department and was allowed to resume his pre-injury quality control inspection job. His average weekly wage on September 21, 1993, included significant overtime pay.

On May 10, 1994, Pacyga sustained a com-pensable torn right rotator cuff injury. His average weekly wage on May 10, 1994, also included significant overtime pay. After about 2-3 days of lost time from work, Pacy-ga resumed his quality control position with additional restrictions related to the shoulder injury. On January 4, 1995, he underwent surgical repair of his right rotator cuff, and, in March 1995, FMC provided the services of a' disability case manager to facilitate his return to work.

Pacyga returned to work on July 5, 1995, in a light-duty machinist position. He was unable to return to his quality control inspector position because another employee with more classification seniority had “bumped” him from the quality control position. At that time, Pacyga had a 10-pound lifting restriction related to his shoulder injury. Although he had been released to work full-time, he felt he was incapable of working more than part-time.¹ Pacyga’s disability ease manager then contacted Pacyga’s surgeon about reducing Pacyga’s hours, but the surgeon felt that with regard to the shoulder condition, Pacyga was capable of full-time work. On July 20,1995, Pacyga was evaluated by a neurologist who agreed with the surgeon’s work restrictions as they related to the shoulder condition.

In April 1996, the neurologist recommended additional work restrictions for Pa-cyga; specifically, the neurologist recommended no lifting/carrying over 10 pounds and “no overtime.” The recommendations did not include any durational limit for these restrictions. Pacyga submitted the neurologist’s restrictions to FMC’s health services department the next day. Because FMC’s policies on work restrictions required an “end date,” the health services representative put a 30-day limit on the restrictions.²

Pacyga sought various benefits, including temporary partial disability benefits based on lost overtime pay. With the exception of the overtime restriction recommended in April 1996, as limited to 30 days by FMC’s internal policies, the compensation judge denied the temporary partial disability claim, finding that Pacyga had “failed to prove by a preponderance of the credible evidence” that he had been temporarily partially disabled “during most of the periods” set out in his claim. On appeal, the WCCA reversed and remanded for reconsideration, concluding that the compensation judge failed to apply the rule that evidence of actual earnings creates a presumption of earning capacity and erroneously deferred to the employer’s internal work restriction policies.

While evidence of actual earnings creates a presumption of earning capacity,³ here the claim was denied for failure of proof of the existence of disability during the period of time for which benefits were claimed. In arriving at his decision, the compensation judge considered medical evidence indicating that Pacyga had not been medically restricted from working overtime during the period of time for which compensation was claimed and other evidence indicating Pacyga was aware of his obligation to secure updated work restrictions from his doctors. It appears that the compensation judge rejected Pacyga’s testimony to the contrary. Thus, the compensation judge’s decision here is grounded in a credibility determination which is a unique function of the trier of fact.⁴ Therefore, we reverse.⁵

Reversed and decision of compensation judge reinstated.

1 . The wage records indicated that following his return to work on July 5, 1995, Pacyga’s first 40-hour week was in September 1995. After that, he generally worked a 40-hour week, although on a number of occasions he worked less than 40 hours.

2 . The employees typically received a copy of the employer’s restriction notice, and the employer’s occupational nurse believed Pacyga, with whom health services had a "lot of contact” over the years, was familiar with the employer's "return to work” procedures. Pacyga’s disability case manager had also told him he needed to "cover” his lost work time with "medical justification.”

3 . Borchert v. American Spirits Graphics, 582 N.W.2d 214 (Minn.1998).

4 . Tolzmann v. McCombs-Knutson Assoc., 447 N.W.2d 196 (Minn. 1989).

5 .FMC also contends that a prevailing party on review on certiorari is entitled to be alleviated of the obligation to pay the WCCA’s award of attorney fees. Pursuant to Minn.Stat. § 176.511, subd. 3, the WCCA "may include in its award as an incident to its review on appeal an amount to cover a reasonable attorney’s fee, or it may allow the fee in a proceeding to tax disbursements.” The workers’ compensation appellate attorney fee provision is exclusively for the benefit of the employee. Lidstrom v. Amherst Mining Co., 169 Minn. 465, 211 N.W. 674 (1927). The WCCA has the authority to award fees "as an incident to its review,” and this award is in no way affected by our disposition on certiorari. Cf, Hodgin v. Ford Motor Co., 341 N.W.2d 567 (Minn.1983) (attorney fees awarded employee as prevailing party as incident to supreme court review; disallowance of WCCA appeal disbursements affirmed where employee's appeal to that court was unsuccessful).