DAVID OPSAHL, Employee/Appellant, v. K & S HEATING and ACE USA/ESIS, INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 15, 2006
TEMPORARY TOTAL DISABILITY; JOB OFFER - REFUSAL. Substantial evidence supported the compensation judge=s finding that the employee refused gainful employment he could do in his physical condition, entitling the employer and insurer to discontinue temporary total disability compensation pursuant to Minn. Stat. ' 176.101, subd. 1(i).
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Catherine A. Dallner
Attorneys: Gerald S. Weinrich, Rochester, MN, for the Appellant. James S. Pikala, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s finding that the employee refused work within his restrictions and from the discontinuance of temporary total disability benefits pursuant to Minn. Stat. '176.101, subd. 1(i). We affirm.
K&S Heating is a heating, air conditioning, plumbing and electrical service business in Rochester, Minnesota, which performs work for both commercial and residential clients. In 2003, the employee, David Opsahl, began working for the employer as a plumbing service technician in the employer=s residential service plumbing department. The employee went out on service calls which included replacing plumbing fixtures, cleaning drains, fixing leaks or broken pipes and replacing appliances.
On October 6, 2004, the employee was moving equipment in the back of a company vehicle when an electric drill fell onto his left hand causing a puncture wound to the back of the hand and injury to the thumb. He continued to work for the next week or so, but his hand remained swollen and painful. On October 15, 2004, the employee was seen at the Olmstead Medical Center emergency room, where he was advised to return for reevaluation if his hand was not back to normal by October 30, 2004. On October 28, 2004, the employee returned to Olmstead Medical Center and was seen in the urgent care department with continued pain, swelling and numbness in the left thumb and part of the left index finger. The employee was referred for an orthopedic hand consultation.
The employee was eventually found to have sustained a laceration of the left extensor pollicis longus tendon. He underwent surgical repair of the tendon in October 2004 but the repair subsequently ruptured necessitating a second surgical repair on November 5, 2004. A second rupture resulted in further surgery in February 2005 in the form of a tendon transfer.
The employee returned to work in his pre-injury job in April 2005. However, in July 2005 he had a return of pain in his left thumb after lifting a 125-pound water heater at work. A radiographic study on August 15, 2005, showed a partial rupture of the tendon transfer. The employee was taken off work for two weeks to allow the tendon to heal. On September 2, 2005, the employee=s doctor concluded that healing had occurred and that the employee could be released to return to work. The chart note of that visit refers to a release to Aunrestricted@ activity. However, the employee was told orally by his physicians on September 6, 2005, to limit lifting, carrying, pushing and pulling to 70 pounds with the left hand.
On that same day, the employee met with Pam Captain, the employer=s human resources administrator, and with his supervisor, Sara Arena, the employer=s service manager. He told them the nature of his restrictions and that he hoped to return to work on September 12, 2005. Ms. Arena told the employee that he needed to provide written restrictions from his doctor before he returned to work. She offered the employee a return to work doing residential gas piping service. The employee was familiar with the gas piping job and expressed concern that it would exceed his restrictions. Ms. Arena testified that she told him the employer would accommodate his restrictions and that if there was not enough gas piping work within his restrictions they would find other work for him. She explained that this would not jeopardize his employment. The employee, however, testified at the hearing that he could not recall being told that his restrictions would definitely be accommodated.
By September 12, 2005, the employee had neither reported in for work nor contacted the employer. Ms. Captain testified that she called him by telephone on September 12 to find out why he had not called or come in, and that the employee told her that he had been delayed in obtaining a written copy of his restrictions from his doctor. At the hearing, the employee could not recall this conversation.
The following day, September 13, 2005, the employee faxed his written restrictions to the employer. However, as the employee had done nothing else to contact the employer about arranging a return to work, Ms. Captain called his home that afternoon and left a message on his answering machine indicating that work was available for him within his restrictions, and asking that he contact the employer. After no response to the message, Ms. Arena left a second message on the employee=s answering machine on the following afternoon, September 14. She testified that she called again on September 15, but that the employee=s answering machine never Apicked up@ and the telephone simply Arang and rang.@ Ms. Captain testified that several further attempts were made by various members of the employer=s staff to contact the employee by telephone through September 21, 2005, but that none of the calls were answered.
The employee testified at the hearing that he personally had not retrieved any telephone messages from the employer on his answering machine about returning to work. When the employee had not contacted the employer by September 21, 2005, the employer sent him a certified letter reiterating that work was available for him and asking that he contact the employer about whether he would be returning to work. The employee=s wife signed for the delivery of the letter on September 22, 2005. However, the employee did not call or come to the employer=s offices any time during the next week. The employee testified at the hearing that his wife had not given him the letter for several days, but when asked what had happened could not remember Aexactly how it all transpired.@
On September 26, 2005, the employer and insurer served and filed a notice of their intention to discontinue temporary total disability compensation, alleging that the employee had refused an Aoffer of gainful employment.@ The employer=s letter of September 21, 2005, was attached to the NOID.
On September 28, 2005, the employer received forms from the United States Office of Personnel Management=s Federal Investigations Processing Center seeking verification of prior employment in conjunction with the employee=s application for a federal job. The forms noted that, based on information provided by the employee, his job with the employer had Aterminated@ in July 2005.
The employee telephoned the employer=s offices on September 30, 2005, and spoke to Ms. Arena to ask why his workers= compensation benefits had stopped. She transferred the call to Ms. Captain, as it dealt with human resources issues. Ms. Captain referred him to the insurer=s case manager assigned to his case. During their conversation, Ms. Captain asked him why he had not responded to the employer=s messages and letter. She testified that Aany time I=d ask him directly he=d sidestep the issue.@ Ms Captain further testified that the employee again expressed concern that any work available at K & S would exceed his restrictions. She told him that the employer wanted him to return to work, that there was a lot of work available, that the employer intended to accommodate his restrictions, and that he should discuss the exact details with his supervisor.
On September 30, the employee also talked with the employer=s vice president, Rick Keehn, who told him that the employer had gas piping service jobs waiting to be scheduled and was concerned that he was not responding to calls and letters or letting the employer know whether he would be available to do the work. Mr. Keehn warned the employee that his repeated failure to contact the employer was putting his job in jeopardy.
On October 3, 2005, the employer faxed the employee a letter signed by its president, Gary McMillen, and by Mr. Keehn. The letter referenced the forms received from the U.S. Office of Personnel Management, and asked whether the employee still considered himself an employee of K&S. The letter advised him that if he wanted to resign, he should submit a resignation letter. The employee called the employer=s office asking to meet with Mr. McMillen and Mr. Keehn, and a meeting was scheduled for October 6, 2005, at the employer=s offices. At the meeting, the employee was terminated for job abandonment.
A hearing was held before a compensation judge of the Office of Administrative Hearings regarding the proposed discontinuance on March 14, 2006. Following the hearing, the compensation judge found that the employee had refused offers of gainful employment that he could do within his restrictions, and granted discontinuance pursuant to Minn. Stat. ' 176.101, subd. 1(i).
The employee appeals.
Minn. Stat. ' 176.101, subd. 1(i), provides, in pertinent part, that A[t]emporary total disability compensation shall cease if the employee refuses . . . an offer of gainful employment that the employee can do in the employee=s physical condition.@
The compensation judge found that the employer made numerous offers of gainful employment within the employee=s restrictions between September 6, 2005, and October 3, 2005, but that the employee had failed to respond to the offers. She further concluded that the employee=s inaction in response to these offers constituted a refusal of employment which entitled the employer and insurer to discontinue temporary total disability compensation in accordance with the statute.
The employee=s position at the hearing was that the work offered, as actually performed, would have required him to exceed his restrictions. Specifically, he testified that installing gas piping could involve moving appliances weighing more than seventy pounds, and that making pipe connections could at times require exerting more than seventy pounds of force. The employer=s owner and president, Gary McMillen, conceded that some appliances might need to be moved that would weigh more than this. However, he and Ms. Arena both testified that it was the employer=s policy to accommodate the restrictions of injured employees, and that service employees, who were equipped with cell phones, were allowed to call in and request assistance or reassignment whenever they encountered a situation which would involve exceeding their medical restrictions. While there was no evidence that the employee had been advised of this specific procedure in conjunction with the offer of work, there was testimony to the effect that he was aware that such assistance was available and had used the procedure in the past. Mr. McMillen disagreed with the employee=s contention that joining gas line connections could occasionally require the employee to exert more than seventy pounds of force. He testified that, if the proper wrench was used, the work could generally be done without this much force, and that, in any event, the employee would also have been permitted to call for assistance or reassignment if he was unable to make a piping connection without exceeding his restrictions.
The compensation judge accepted the testimony of Mr. McMillen as to the physical requirements of the job. Since Mr. McMillen was thoroughly familiar with the work, and had himself performed it, his testimony was sufficient to support the finding that the employee would be able to perform the gas piping job offered to him without exceeding his restrictions. In addition, we note that all of the employer=s witnesses testified that there were many other light tasks to which the employee might be assigned if he found he was unable to do that the residential gas piping service job. The employee offered no medical evidence that the job was physically unsuitable. The compensation judge was not required to accept the employee=s testimony contrary to that of Mr. McMillen. See, e.g., Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989) (credibility determinations are uniquely committed to the compensation judge).
The employee further argues, in essence, that the process of offering him work was relatively informal, did not involve review by a rehabiliation specialist of a written job offer and description, and did not adequately inform him as to the specific accommodations that would be made to ensure that the work was within his restrictions. We note, however, that the current statute does not require that the job offer be made in writing or that it specify the employee=s duties. Wheelock v. Trilite Stone, 66 W.C.D. 87 (W.C.C.A. 2005). In addition, in this case, the employee had personal knowledge of the requirements of the job being offered.
The employee nonetheless contends that it was not unreasonable to refuse to try a job which could involve the same kinds of activities that had previously caused him to sustain reinjury to his hand, given the lack of a formal job-offer process. However, we cannot conclude that the compensation judge committed clear error in finding that the employee=s refusal to try the job was unreasonable under the specific facts of this case. Among the factors which support the compensation judge=s conclusions, we note that the employee made no effort to resolve his concerns with the employer or to try the job, but rather simply failed to either report for work or to contact the employer about returning to work for several weeks without any real explanation or excuse.
This court has previously noted that although a refusal most typically occurs when an employee provides oral or written non-acceptance of a physically appropriate job offer, an intent to refuse the offer may be construed where clearly apparent from the employee=s conduct, as where there is an unjustifiable and intentional failure to respond to the offer within a reasonable time. Cf., e.g., Olenchak v. Wenzel Plumbing & Heating, 65 W.C.D. 290 (W.C.C.A. 2005); Dahn v. Sheldahl, Inc., 55 W.C.D. 232 (W.C.C.A. 1996) (refusal construed from unjustifiable failure to respond, in the context of the similar prior refusal statute). The evidence in this case permits that construction, and we affirm.