JANICE M. FALLS, Employee/Appellant, v. COCA COLA ENTERS., INC., SELF-INSURED, adm'd by SEDGWICK CLAIMS MGMT. SERVS., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 27, 2006
TEMPORARY TOTAL DISABILITY; JOB OFFER - REFUSAL; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(i). Where there was no evidence of a job offer after the initiation of temporary total disability, and no evidence of a refusal by the employee, Minn. Stat. ' 176.101, subd. 1(i) does not apply.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Kathleen Behounek
Attorneys: William H. Getts, Minneapolis, MN, for the Appellant. David L. Klaiman and Brad Delger, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s application of Minn. Stat. § 176.101, subd. 1(i), to discontinue temporary total disability compensation and from the determination that the employee is permanently barred from any future receipt of temporary total disability compensation. We reverse.
The employee, Janice Falls, started working for the self-insured employer, Coca Cola Enterprises, in 1989. By May 2005, she was working as a driver on a four-day per week night shift, 12 to 14 hours a day. She delivered cases of beverages to retailers, unloading and stacking the cases in the store. The employee handled 500 to 600 cases in a shift. On May 10, 2005, she sustained an admitted injury to her left elbow while Athrowing cases.@
The employee continued to do her regular job and missed no time from work. When her left arm pain continued to increase, she was seen by Dr. William Isaksen, an occupational medicine specialist, at the Park Nicollet Airport Clinic on May 18, 2005. Dr. Isaksen diagnosed left lateral epicondylitis and placed restrictions on the employee=s use of her left arm. The employee was advised not to lift over 15 pounds and was to avoid repetitive use of her left arm. The employee told Dr. Isaksen that her motorcycle was her only transportation and that she was concerned about operating the hand clutch which required use of her left arm. Dr. Isaksen told her that this was not a work comp issue and was her problem.
When the employee returned to work that evening, the employer assigned her to ride along with another driver. The other driver was identified by the supervisor as being slow and it was thought that the employee could assist him with some of his duties. However, after trying this job for one night, the employee reported that the bouncing of the truck seat irritated her elbow pain. While the driver=s seat was air-ride, the passenger seat was a metal seat with no padding or springs. The employer then gave her a light duty assignment of counting bottle caps. The employee performed this assignment for the next three days. Counting bottle caps took about two hours each night and the employee then spent the remainder of each shift sitting in the employer=s office.
The employee was scheduled to be off work from the morning of May 22 until the beginning of her night shift on May 24. On May 24, 2005, she called the employer=s office asking what to do as she was not able to operate the hand clutch on her motorcycle due to her left arm condition, and had no other transportation to work. The employer advised that she could either take a cab to work, or that she would be permitted to use sick leave and stay home until she could see her doctor. The employee decided to go on sick leave.
On June 1, 2005, the employee was seen by her family physician, Dr. Charlene K. Ulstad-Warkentien, at the Rice Street Clinic. The employee reported pain and weakness when twisting with her lower arm, as when turning a door knob. The doctor noted that the employee=s pain and tenderness over the employee=s left epicondyle were consistent with lateral epicondylitis. She took the employee entirely off work, provided her with an elbow brace, and recommended that she Aremain on relative rest@ with the affected arm for two weeks and then return for reexamination. The employee provided her off work slip to the employer, who then initiated payment of temporary total disability compensation. At no time thereafter did the employer ask the employee to return to work.
The employee testified that at about that same time, she had her motorcycle fitted with a different hand clutch which only required a two-pound pull to operate.
Beginning on June 2, 2005, the employer had surveillance performed on the employee=s activities. On June 3, 2005, the employee was videotaped riding her motorcycle to the employer=s facility, where she obtained three cases of bottled water and loaded them into a small fiberglass trailer attached to her motorcycle, using both arms. On returning home, she unhitched the trailer and pulled it across her lawn. Off and on over the course of several days between June 4 and 17, 2005, the employee was observed working in her back yard, sanding and painting wooden window screens. On occasion she used both hands to lift and turn the screens, although most of the work was done using her right hand.
On June 6, 2005, the employee was seen at the HealthEast Optimum Rehabilitation Clinic for the initiation of occupational therapy services. She told the therapist that while not at work she engaged in activities which included riding her motorcycle, working on her house, and fishing. She reported that she was able to perform activities of daily living, but that it was painful to grasp a steering wheel, lift, or wash her hair. When the employee called to schedule a return appointment with her treating doctor, she was told that the doctor would be on vacation and would not be able to see her until June 27. Because of the scheduling problem, her doctor continued her in an off work status through June 27, 2005.
On June 21, 2005, the insurer sent the employee a notice of intent to discontinue temporary total disability benefits, effective on that date. The notice stated that ABased on surveillance findings the employee was observed performing home work activities beyond the assumed limitation set forth by her doctor.@
The employee returned to Dr. Ulstad-Warkantien on June 27, 2005. The doctor noted that there still was significant tenderness over the left lateral and medial epicondyle and that the employee continued to have acute epicondylitis. However, she concluded that the employee could return to limited work.
On June 28, 2005 the employee attended a meeting which was scheduled by the employer to discuss her medical condition. After arriving at this meeting, the employee was given a letter of termination based on the employee Aproviding fails (sic) information to her supervisor regarding her medical condition.@
On June 29, 2005, Dr. Ulstad-Warkantien issued work restrictions for the employee. The restrictions included no lifting over five pounds with the left hand except as assisted with the right arm, no extended gripping, no driving due to prescribed pain medication, and limited night activity secondary to use of Vicodin. The employee continued to treat at the Rice Street Clinic through September 12, 2005. Dr. Ulstad-Warkantien was deposed on that date and testified that the employee had now reached the point where she could return to driving work, but was still incapable of heavy lifting or throwing of cases. She acknowledged that the employee would, at all times following the injury, have been physically capable of performing light duty work involving only the use of the right arm.
Dr. Joel L. Boyd saw the employee for an examination on behalf of the self-insured employer on September 12, 2005. Dr. Boyd agreed with the diagnosis of left lateral epicondylitis. He thought the employee might also have ulnar collateral ligament strain or disruption, and recommended that an MRI scan be performed to determine the extent of her pathology. As of the date of his examination, Dr. Boyd considered the employee capable of working as long as she avoided lifting above 50 pounds. Dr. Boyd reviewed the surveillance films but did not discuss the employee=s ability to work in June 2005.
A conference on the discontinuance notice was held and resulted in the discontinuance of the employee=s temporary total disability benefits. The employee objected to the discontinuance and a hearing was held before Compensation Judge Kathleen Behounek on September 20, 2005. At the hearing, the employer and insurer asserted that the employee was precluded from the receipt of temporary total disability compensation under the provisions of Minn. Stat. ' 176.101, subd. 1(i). The employee did not object to this expansion of the issues. In her Findings and Order, issued October 19, 2005, the compensation judge allowed the discontinuance of temporary total compensation, finding that the employee had refused gainful employment within her restrictions and was not entitled to benefits pursuant to Minn.Stat. ' 176.101, subd. 1(i). The employee appeals.
The compensation judge found that the physical activities of the employee depicted on the surveillance video tape were beyond those described by the employee to her doctor, that the employee was physically able to do the job she was assigned in May 2005, and that her failure to do those jobs in June constituted a refusal of a job offer under Minn. Stat. ' 176.101, subd. 1(i), and that, as a result, the employee was barred form the receipt of temporary total disability benefits. On appeal, the employee argues that the compensation judge erred in applying Minn. Stat. ' 176.101, subd. 1(i). We agree.
Minn. Stat. ' 176.101 subd. 1(i) provides, in pertinent part, Atemporary total disability compensation shall cease if the employee refuses an offer of work that . . . the employee can do in the employee=s physical condition. Once temporary total disability compensation has ceased under this paragraph, it may not be recommenced.@
This court has previously determined that a refusal of gainful employment is one of the Acessation events@ set out in Minn. Stat. ' 176.101, subd. 1(d). Accordingly, Minn. Stat. ' 176.101, subd. 1(i) applies only to those cases in which the employee refused an offer of gainful employment made after the commencement of temporary total disability benefits. Oliver v. Axman Surplus, slip op. (W.C.C.A. December 1, 1999). In the present case, in order for this section of the statute to apply, there must be evidence that the employer made a job offer to the employee after June 1, 2005 and that the employee then refused that offer. We find no evidence that either of these required elements exist in the present case.
There is no evidence of a job offered any time after June 1, 2005. The employer had no contact with the employee until June 28, when the employee was told to come to a meeting to discuss her medical issues and she was terminated. The employer did not contact the treating doctor for clarification about light duty work. The implication is that the light duty work given to the employee in May would have been available after June 1, but there is no evidence on that point. In the argument at hearing and in the brief on appeal, the employer and insurer refer only to the assignments in May but we emphasize again, that in accord with our earlier decisions on this point, there must be a job offer after the commencement of temporary total benefits. Dell v Parker Hannifin, slip op. (W.C.C.A. July 12, 2004). On this point alone, the decision of the compensation judge is reversible.
The second element of the statute lacking in this case is the refusal of an offer by the employee. The employee did not advise the employer that she would not take the light duty assignments made available in May. In fact, she did not state she could not do the bottle cap counting Ajob.@ Her difficulty with that task was her transportation and, again, there was no communication between the employer and employee after June 1 about the employee=s willingness to come back to work until June 28. On that date, the employee came back to the employer to discuss her return to work but was terminated. There was no communication from the employee which would indicate an intent not to return to work.
It was argued by the employer and insurer, and accepted by the compensation judge, that the employee=s activities as depicted on the surveillance videotapes were such as to constitute a constructive refusal of employment. This court has recognized that a constructive refusal of a job offer may occur where the employee=s conduct clearly indicates the employee=s intent to refuse the job offer. A constructive refusal may be inferred from an unjustifiable and intentional failure to respond to a job offer within a reasonable time or from misconduct by the employee after the return to work which justifies the employee=s termination. Berege v. Jennie-O-Foods, 47 W.C.D. 438 (W.C.C.A. 1992); Olenchak v. Wenzel Plumbing & Heating, 65 W.C.D. 290 (W.C.C.A. 2005). In the present case, we are asked to expand the scope of constructive refusal beyond the case law and hold that an employee who engages in activities beyond the restrictions set by the treating doctor is refusing employment and is precluded from temporary total disability benefits.
In the present case, there is no pending job offer, no overt refusal of an offer, no failure to respond to an offer, no return to work followed by misconduct on the job, and no evidence of an intent of the employee not to return to work. Further, the treating doctor did not find the physical activity depicted on the video tape to be indicative of work capacity greater than that reported by the employee and we note that during the relevant times, the employee was not released to any employment. We conclude that applying the provisions of Minn. Stat. ' 176.101, subd. 1(i) to this case is simply not allowed by the plain language of the statute. Since the only basis for discontinuance of temporary total disability compensation was the application of the statute, we reverse the compensation judge=s order allowing the discontinuance of benefits.