LEO MARUANI, Employee, v. AER SERVS., INC., and ST PAUL FIRE AND MARINE INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 2, 2007
TERMINATION OF EMPLOYMENT; TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM THE LABOR MARKET. Where the employee=s termination from his job as a Jewish ritual slaughterer was ostensibly for his refusal to comply with laws of Jewish Orthodox piety, the court saw little material difference between the employee=s termination for breach of religious rules and an employee=s voluntary quit or termination for misconduct such as under Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989). Such a termination of employment does not result in forfeiture of benefits, and the compensation judge=s denial of discontinuance of benefits, based on a finding that the employee did not voluntarily withdraw from his labor market, was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Catherine A. Dallner
Attorneys: David H. Bailly, St. Louis Park, MN, for the Respondent. Lisa P. Wheeler, John G. Ness & Associates, St. Paul, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's findings that the employee did not withdraw from his date-of-injury labor market and that his wage loss is causally related to his work injury. We affirm.
Leo Maruani was born and raised in France, emigrated from there to Israel at the age of about eight, and subsequently emigrated from Israel to the United States at the age of about twenty-five. In the spring of 2005, Mr. Maruani [the employee] was working as a certified Jewish ritual slaughterer with AER Services, Inc. [the employer], a Minnesota business that provides Jewish ritual management and consultant services to packing houses and processors of kosher meat. In his capacity as a ritual slaughterer, the employee worked for and was paid by the employer, by whom he had been employed since September 1, 1993, but any person performing his job had also to be certified to perform it by a supervising Jewish Orthodox rabbi. The employee had been so certified by a rabbi in Los Angeles at the end of 1993, a few months after being hired by the employer. The ritual slaughterer job entailed supervising and personally performing certain aspects of the animal slaughtering process according to ancient rituals of the Jewish faith, and the ritual slaughterer was expected also to observe various other disciplines of orthodox Jewish piety in his daily life. As of March 17, 2005, the employee was apparently pleasing his employer enough to warrant a bonus of $5,200.00, which was paid to him on that date.
On May 16, 2005, while performing his job as a ritual slaughterer, the employee sustained a severe injury to his right index finger when it got caught and crushed in a closing metal hydraulic door. He was thirty-eight years old on that date and was earning a weekly wage of $1,350.00. Although he continued to work at the same job full time following his injury, the employee, whose position entitled him to work both hands-on and in a supervisory capacity, ultimately worked subject to work restrictions, issued by Dr. Scott McPherson on July 19, 2005, against any use of his right arm and against any other lifting of more than ten pounds from floor to shoulder or more than two pounds above the shoulder.
On September 8, 2005, about four months after his work injury, the employee was terminated from his position by the employer. The following day, September 9, 2005, the employee wrote by certified mail to the employer requesting Athe truthful reasons for my discharge,@ asserting entitlement to a copy of his personnel file under Minnesota statutes. The employee evidently received no response to that request. A few days later, on September 16, 2005, according to the First Report of Injury filed by the employer on that date, the employer=s workers= compensation insurer received notice for the first time of the employee=s May 16, 2005, work injury. The First Report of Injury acknowledged that the employer had been notified of the injury on the date of its occurrence, four months earlier.
On October 5, 2005, the employee filed a claim petition, alleging entitlement to temporary total disability benefits commencing September 8, 2005, unspecified permanent partial disability benefits, medical benefits, and a rehabilitation consultation, all consequent to his work injury on May 16, 2005. In their answer to the employee=s claim petition, filed October 27, 2005, the employer and insurer admitted that the employee had sustained a work-related injury on the date alleged and that he was entitled to related medical benefits. They denied, however, any liability for any other workers= compensation benefits, on grounds that the claim petition was unsupported by any medical evidence and that the employee had failed to make a reasonable and diligent search for employment during the period of his claim. Subsequently, however, the employer and insurer evidently did commence payment of benefits, effective October 20, 2005.
Several months later, on April 10, 2006, the employer and insurer filed a notice of intention to discontinue [NOID] the employee=s temporary total disability benefits on the following grounds:
The Employee has withdrawn f[ro]m his usual and customary labor market by choosing not to comply with the qualifications of Orthodox Jewish Law regulating kosher butcher Rabbis. Further the Employee=s physical restrictions do not preclude him from working in his date of injury occupation. The Employee worked for four months following his injury without complication and until he was terminated following multiple warnings and reprieves to allow him to come back into compliance with Orthodox Jewish Law. The Employer and Insurer assert that the Employee=s wage loss is not substantially contributed to by his work injury.
The employee had applied for unemployment compensation, and in findings issued May 11, 2006, the Minnesota Department of Employment Security concluded that he had been discharged for reasons other than employment misconduct, finding that the employee had not been provided a reason for his discharge, that the employer had not responded to a job separation inquiry sent by the department, and that evidence had Afail[ed] to establish a final incident, previous incidents, or warnings regarding this separation.@
An administrative conference on the issue of the employer and insurer=s NOID was held on May 16, 2006, pursuant to which discontinuance was denied by an order issued May 23, 2006. On June 5, 2006, the employer and insurer filed a petition to discontinue benefits, on grounds both that the employee had sustained no wage loss due to his injury prior to his termination on September 8, 2005, and that any wage loss incurred subsequent to that termination was due to a voluntarily withdrawal from the labor market. Moreover, they asserted, their earlier payment of benefits was made under a mistake of fact. On September 11, 2006, Dr. McPherson completed a workability statement, indicating that the employee was still restricted from any use of his right hand and was now restricted from any other lifting of over two pounds, consequent to a right index finger causalgia.
The matter came on for hearing on September 14, 2006. The sole issue at hearing was the employer and insurer=s petition to discontinue the employee=s temporary total disability benefits on grounds that the employee had voluntarily removed himself from his date-of-injury labor market and that his wage loss was not attributable to his May 16, 2005, work injury. Evidence offered at hearing included testimony by Shlomoh Ben-David, the president and owner of the employer, who explained that the employee had been his friend and had worked for him at three different meat processing plants, first in Rapid City, South Dakota, and then in South St. Paul and then in Buffalo Lake. He explained that the religious compliance required for an Orthodox rabbi=s certification of a person as a ritual slaughterer is Aunquantified,@ that it is Avery, very hard to pin down,@ that it involves being Apious and God-fearing in a transparent public way,@ that the ritual slaughterer Anot only has to be religious and follow the dictates of the faith, but he has to do it in a way that is transparent to the public eye.@ Mr. Ben-David went on to testify that he had transferred the employee from the South St. Paul plant to the Buffalo Lake plant because the supervising rabbi at the South St. Paul plant, Rabbi Aryeh Ralbag, had told him that he could not Ahave a ritual slaughterer work for me that acts, behaves, carries himself, dresses, walks, talks in a manner that is diametrically not Orthodox,@ whereas Mr. Ben-David felt that he still had Asome political capital@ with the supervising rabbi at the Buffalo Lake plant, Rabbi Michael Small. He testified further that, prior to the employee=s eventual termination, he had met with the employee and two other employees of the employer and given the employee thirty days Ato move back@ and Ato start behaving in a manner acceptable@ with regard to Athe way you dress, the way you walk, the way you talk, the way you carry yourself.@
Rabbi Ralbag also testified at the hearing, in part that he had raised concerns about the employee=s compliance with Jewish Orthodox law as early as late 2003. Ritual slaughterers are required to attend the synagogue every Sabbath and Orthodox Jews are not permitted to drive or to ride in cars on the Sabbath, and particularly problematic for Rabbi Ralbag was the fact that, since his arrival in the Twin Cities area in 2002, the employee had been living in Minnetonka instead of in St. Louis Park five miles away, where there was a larger Jewish community and the employee could more easily walk to a synagogue on the Sabbath. Rabbi Ralbag acknowledged on cross-examination that, in the course of his investigation into the employee=s religious character and qualification for his job, he had not conferred with the employee=s rabbi in St. Louis Park, Rabbi Goldberger, regarding the employee=s attendance and participation at his synagogue. Rabbi Small also testified at hearing, in part that, when the employee came under his supervision already in the summer of 2002, he, too, had questioned the employee=s religious qualifications for the ritual slaughterer position.
In his own testimony, the employee indicated in part that he had been personally lured by Mr. Ben-David in February 2002 to leave a lucrative second business in Rapid City to come to work in the employer=s business in the Twin Cities. The employee testified that, even before the purchase of his home was completed, his electing to live in Minnetonka was never a secret from the beginning and was, in fact, very apparently condoned by both Mr. Ben-David and his vice president, Moshe Fyzakov. The employee testified that Mr. Fyzakov had initially visited the home often and even stayed overnight there about seven times. The employee testified further that he had now sold the home, in December of 2005, subsequent to his termination. He testified also that he had stayed overnight with friends or at a motel in St. Louis Park on the eve of every Sabbath and that he had walked to a synagogue, and had never ridden in a car, every Sabbath. He testified also that no one, either inside or outside the Orthodox Jewish community, had ever before suggested that he was not pious and God-fearing or had ever in any way criticized his life style. Underlying much of the employee=s testimony was a thinly veiled suggestion that his termination was ultimately in retaliation for his reluctance to participate in illegal activities, but he did acknowledge on cross-examination that he had alleged in a December 20, 2005, complaint filed in federal court that Aone of the reason[s] also they c[a]me with later on@ for his termination was his noncompliance with their ultimatum that he move into a community of their choice.
By findings and order filed November 8, 2006, the compensation judge denied the employer and insurer=s petition to discontinue benefits, concluding that the employee had not withdrawn from his date-of-injury labor market and that, due to his current restrictions against any use of his right hand and against any lifting of over two pounds, he was Anot physically able to perform many of the duties required in his job as a ritual slaughterer for the employer.@ The judge made no reference to any basis for the employee=s termination by the employer. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. § 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The compensation judge found that the employee did not voluntarily remove himself from his date-of-injury labor market, that, consequent to his work injury, the employee was subject to various physical restrictions that precluded him from performing many of the duties of his job as a ritual slaughterer for the employer, and that the employer and insurer were therefore not entitled to discontinue the employee=s temporary total disability benefits as claimed. The employer and insurer contend that these findings of the judge are unsupported by substantial evidence, in that (1) A[t]he employee=s termination from employment was a known natural consequence of his own volitional behavior@ and (2) any post-injury wage loss is unrelated to the work injury, since, for the four months prior to his termination for reasons unrelated to his work injury, the employee continued to perform his pre-injury job full time at no wage loss in his supervisory capacity. Any post-termination wage loss, they argue, is consequent only to a voluntary withdrawal from Athe only position that could provide anywhere near the earning capacity he enjoyed.@ We are not persuaded.
In Marsolek v. George A. Hormel & Company, the supreme court held that, while Aa justifiable discharge for misconduct suspends an injured employee's right to wage loss benefits, . . . the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee's work-related disability is the cause of the employee's inability to find or hold new employment@ and that A[s]uch a determination should be made upon consideration of the totality of the circumstances including the usual work search >requirements.=" Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989). In the instant case, the employee neither quit his job nor moved out of the geographical vicinity of his employment nor otherwise deliberately chose not to pursue continued employment with the employer. Whether or not the employee had been expressly warned that his activities were not in full compliance with all of the current religious requirements of certification for the job, there is ample testimonial evidence that those requirements and their enforcement were in a state of flux and subject to a certain amount of rabbinical discretion during the tenure of the employee=s employment with the employer - - that they were, in the words of Mr. Ben-David, Avery, very hard to pin down.@ The employee=s termination was clearly, therefore, consequent to a far more deliberated decision of the employer - - upon the advice of, and subject to the discretion of, supervising rabbis - - than of the employee. As such, we conclude that the employee=s termination, even viewed in a light most favorable to the employer and insurer, is analogous to those virtually voluntary quits and terminations for misconduct in cases following from Marsolek.
For purposes of entitlement to workers= compensation benefits, we see little material difference between termination for breach of a secular rule of employment and termination for breach of a religious rule of employment, regardless of whether that rule is one established by the employer itself or by a religious agency governing the employer=s employments, as is here the case. Moreover, the compensation judge=s review of the severity of the employee=s injury and restrictions makes sufficiently clear that the employee=s work-related injuries are a material impediment not only to employment in a job like the one with the employer that is no longer available to the employee but also to employment in lots of other jobs. Nor is that conclusion diminished by the fact that the employee was able to maintain his particular job and wages with the employer notwithstanding his physical restrictions. Because they were not unreasonable on the bases on which they were reached, we affirm the compensation judge=s conclusions that the employee did not voluntarily withdraw from the labor market and that, given the employee=s substantial work-injury-related physical restrictions, the employee=s post-termination wage loss is reasonably attributable to his admitted work injury. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.