McKenna v. Security Products Inc. et. al. No. WC15-5856 (APRIL 29, 2016)
The WCCA upheld a compensation judge’s findings that:
1.) There was substantial evidence in an expert medical opinion and vocational opinion to support a finding that an employee was not permanently disabled. Three vocational experts examined the Employee, where two were under the opinion that the Employee was permanently disabled and one was under the opinion that the Employee was not. The judge was under the opinion that a closer reading of the Doctor’s examination showed that the employee was in fact capable of learning more complex tasks, which the outlying vocational expert opined.
2.) There was substantial evidence that the employee failed to conduct a reasonably diligent job search as the employee’s testimony about job searching efforts was vague and included no documentary records; Nothing was offered into evidence other than spoken testimony to show that the Employee conducted a reasonably diligent job search, and the judge found her particular testimony was not sufficient.
3.) When wage information in evidence was insufficient to calculate the number of days worked during the 26 weeks prior to the date of injury, it was reasonable for the compensation judge to divide the total wages by 26.Where a dispute existed as to whether the employee was salaried, the judge found that the employer treated her so for the sake of benefits, but paid her hourly, and the later was the defining nature of her employement, making a monthly average calculation appropriate for AWW.
Minn. Stat. 176.421, subd 1 and the line of Hengemuhle cases establish that on appeal the WCCA must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in the view of the entire records as submitted.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). These three findings fell within such an assessment such that the WCCA upheld all findings.