WENDY C. RUBY, Employee, v. CASEY=S GENERAL STORE, and EMC/CCMSI, Employer-Insurer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 6, 2007
JOB OFFER - REFUSAL. Substantial evidence supports the compensation judge=s findings that the work offered did not meet the employee=s work restrictions and that the employee did not unreasonably refuse a written job offer.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Laura L. Enga, Attorney at Law, New Hope, MN, for the Appellant. DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee did not unreasonably refuse a job offer presented by the employer. We affirm.
On March 4, 2004, Ms. Wendy Ruby, the employee, began working on a part-time basis at Casey=s General Store, the employer, in Madison, Minnesota. In January 2005, the employee began working on a full-time basis, working as a cashier and pizza preparation worker, which included various duties, such as cooking, cleaning, preparing foods and pizza, operating the cash register, unloading freight, stocking items onto shelves, and shoveling snow.
The dispute on appeal involves an admitted work-related injury the employee sustained to her left lower extremity on May 3, 2005, when she stubbed her left toe on a fatigue mat located behind the cashier=s counter. The employee had also sprained her left ankle in February 2005, after slipping on ice outside her home, and had injured her left lower extremity on April 8, 2005, after slipping on debris on the floor at work. After the May 3, 2005, injury, the employee noted pain and swelling in her left ankle as well as swelling in her foot and calf area. Due to her symptoms and difficulty performing the duties of her position with the employer, especially the standing required of her job, the employee remained off work almost entirely between May 3, 2005, and at least July 2006. At the time of her injury, the employee was 43 years old, and earned a weekly wage of $185.54, which entitled her to a base minimum compensation rate of $130.00.
The employer and its workers= compensation insurer, EMC/CCMSI, admitted primary liability for the employee=s May 3, 2005, injury, and paid benefits to and on behalf of the employee, including temporary total disability benefits for over 60 weeks, temporary partial disability benefits for approximately 2 weeks, medical expenses, and permanent partial disability benefits to the extent of 1% whole body impairment. They also provided rehabilitation assistance to the employee, commencing in July 2005.
Following her injuries, the employee underwent extensive and numerous treatments for her left lower extremity, including radiographic studies, a bone scan, casting on her left leg in May and June 2005, a walking CAM boot to support her ankle, nerve blocks, stellate ganglion blocks, physical therapy, acupuncture, Tai Chi, and multiple trials of medication. She initially treated with physicians at the Milbank Medical Center, and later consulted with an orthopedist, Dr. Gregory Alvine, who recommended physical therapy for strengthening her ankle. On August 22, 2005, the employee consulted Dr. Eric Watson, who diagnosed reflex sympathetic dystrophy (RSD) from her ankle injury and recommended that the employee be evaluated by a pain clinic for sympathetic block injections and that she continue her physical therapy. He also recommended that she work as she was able to tolerate the pain.
On September 20, 2005, the employee consulted a physiatrist, Dr. Jerry Blow, who diagnosed a history of ankle strain with development of RSD or complex regional pain syndrome of her left lower leg, which seemed to have improved over time, and recommended various treatments including pain and anti-inflammatory medication, sympathetic nerve blocks, pool therapy and the use of a TENS unit and an NMES unit, which is an electrical device designed to stimulate muscle contraction.
By October 2005, the employee=s treating physician released her to return to work on a light duty basis, on a work hardening-type of schedule. She initially was released to return to work two hours every other day, and worked on that basis between October 25 through November 7, 2005, but found that she was unable to work even on that limited basis. In addition, her 15-mile commute to work between her home and the employer=s store increased the level of her pain due to the vibration resulting from driving.
The employee received follow-up treatment from Dr. Blow, and at a January 25, 2006, consultation with him, she reported continued pain, swelling and sweating in her left foot and ankle, fatigue, difficulty sleeping and body aches. Dr. Blow concluded that the employee had reached maximum medical improvement (MMI) from her work injury, and concluded that the employee had sustained 1% permanent partial disability to the body as a whole as a result of her work injury. He assigned permanent physical work restrictions and limitations on the hours that she could drive a car, recommended that she continue to use a heat lamp and perform home exercises, recommended that she gradually discontinue certain prescription medications, and then released the employee from his care.
On March 10, 2006, the employee was examined by an orthopedic surgeon, Dr. William Bell, at the request of the employer and insurer. In his report issued on March 24, 2006, Dr. Bell diagnosed chronic regional pain syndrome, and concurred that the employee=s injury of May 3, 2005, was the substantial contributing factor to that condition and her current restrictions. He disagreed with other physicians= diagnoses of RSD, as he detected no findings supportive of that diagnosis. Dr. Bell concluded that the employee=s reports of pain were out of proportion to her objective findings, and commented that it was Aunlikely that any treatment at any time in the foreseeable future will ameliorate her subjective complaints of pain.@ Dr. Bell recommended that the employee work within the physical work restrictions as outlined by Dr. Blow. He also concurred with Dr. Blow=s determination that the employee had reached MMI.
Following the employee=s injuries, the employer and insurer provided statutory rehabilitation services to the employee. Ms. Lisa Sabye, qualified rehabilitation consultant (QRC), first met with the employee on July 21, 2005, to conduct a rehabilitation evaluation, and later provided medical management and rehabilitation services to the employee. The initial goal of the employee=s rehabilitation plan was to return to work with the employer, but following Dr. Blow=s assessment in January 2006 that the employee=s restrictions would be permanent, the rehabilitation plan was changed to include a job search for work in alternative positions with other employers; a job placement specialist was assigned to work with the employee. The employee conducted a job search, but did not receive any job offers while conducting that search.
On April 5, 2006, the employer and insurer, through their counsel, served the employee with notice of attainment of MMI, providing her with reports issued by both Dr. Blow and Dr. Bell.
On July 6, 2006, the employer mailed a written job offer to the employee; the offer stated that the employer had work available for the employee within listed restrictions recommended by her treating physician. The job offer did not include a job description or outline of duties. Also on July 6, 2006, the insurer served the employee with a notice of intention to discontinue benefits (NOID). In that NOID, the insurer advised that the employee=s temporary total disability benefits would be discontinued on the basis that the statutory 90-day period post-MMI had expired. In the NOID, they also asserted that the employee had been offered suitable employment within restrictions outlined by the employee=s treating physician. The employee objected to the discontinuance and so the dispute was scheduled for an administrative conference.
Because the job offer had not included a job description or an outline of the physical requirements of the offered position, the employer and the employee=s QRC later agreed that a job analysis of the position was necessary to fully determine the requirements of the proposed job, and scheduled the same for August 7, 2006. The placement specialist, Troy Zenzen, conducted a job analysis and prepared a follow-up report. According to Mr. Zenzen, the employee would require the use of a sit/stand chair while working at the proposed job, she would not need to lift over twenty pounds and would primarily work in the kitchen doing prep work and running the register throughout her shift. The employee would also be assigned to clean shelves by removing all items from the shelves, clean them and return the product to the shelf, and would be required to conduct an inventory on all new products and stock the cooler and shelves. The employee=s QRC submitted the job site analysis report to Dr. Blow for his review.
On August 14, 2006, the employee=s objection to discontinuance of benefits was addressed at an administrative conference. By decision issued on August 15, 2006, a compensation judge determined the discontinuance was proper based upon Aattainment of MMI and availability of appropriate light duty work.@ The employee objected to the discontinuance and requested a formal hearing on the dispute.
In the meantime, Dr. Blow reviewed the job analysis report prepared by the employee=s placement specialist, and, on August 16, 2006, issued a report in which he modified the job offer and recommended a trial of limited duty, with gradually increasing hours over time. On August 21, 2006, the employer advised the QRC that it could accommodate the modifications outlined by Dr. Blow, and apparently left a telephone message for the employee on August 20, 2006, advising of the same. The employee did not accept the offered job.
The matter was scheduled for an evidentiary hearing on October 19, 2006, before another compensation judge. At the hearing, the parties stipulated that the employee had developed reflex sympathetic dystrophy or regional complex pain syndrome of the left foot and ankle as a result of her injury of May 3, 2005. They also stipulated to service of maximum medical improvement on April 5, 2006, although they did not stipulate to attainment of MMI. At the hearing, the employer and insurer contended that the employee had unreasonably refused an offer of employment for personal reasons and not because of the restrictions related to her work injury. By findings and order served and filed on November 6, 2006, the compensation judge who presided at the evidentiary hearing found that the employee had reached MMI, pursuant to Dr. Blow=s opinion served on April 5, 2006. The judge affirmed the discontinuance based upon the expiration of the 90-day period post-MMI, and also found that the employee Adid not unreasonably refuse the July 6, 2006, written job offer because it was not clear how the work would be modified to fit her restrictions.@
No appeal was taken by either party from the findings that the employee had reached maximum medical improvement and that discontinuance of benefits was proper on that basis. The employer and insurer, however, have appealed from the compensation judge=s finding that the employee did not unreasonably refuse the July 6, 2006, written job offer.
The contested issue at the hearing was whether the employer and insurer had a sufficient basis upon which to discontinue temporary total disability benefits at the time the request was made by the employer and insurer. The employer and insurer=s Notice of Intention to Discontinue Benefits referred to two alternative bases for discontinuance of benefits: the expiration of the statutory 90-day period after the employer and insurer served notice of MMI on the employee, and the employer and insurer=s contention in the NOID that the employee had been Aoffered suitable employment by date of injury employer within the restrictions of the treating physician.@ At the hearing, the employer and insurer asserted that the employee had unreasonably refused a job offer and therefore her post-injury unemployment thereafter was unrelated to the effects of her work injury.
The compensation judge addressed both issues at the hearing. She first determined that the employee had reached maximum medical improvement, as defined by Minn. Stat. ' 176.011, subd. 25 and Minn. R. 4221.0410, and Apursuant to the opinion of Dr. Blow, served and filed April 5, 2006.@ The judge concluded that, based on the medical evidence in the record, there is no indication that the employee=s condition was improving or that her restrictions had been decreased, and that no medical opinion had been presented stating that other treatments were available that might improve her condition. On the basis that the employee had reached MMI, the compensation judge denied the employee=s objection to discontinuance and denied payment of temporary total disability benefits (TTD) after July 10, 2006. Neither party appealed from that finding nor from the denial of the employee=s claim for TTD after July 10, 2006.
Even though the employer and insurer prevailed on the discontinuance issue, they now appeal from the findings related to the issue of whether the employee reasonably refused a job offer. Within the compensation judge's Findings and Order, she addressed the alternative grounds for discontinuance asserted by the employer and insurer, that is, the employee=s alleged refusal of a job offer; much of the testimony at the hearing was related to that job offer. The judge concluded that the employee credibly testified to the problems that she would have doing the work that was proposed,@ and that Abased on the job description as a whole, it is determined that the work offered did not meet the employee=s restrictions.@ (Memo., p. 6.) The judge=s findings outline the series of events surrounding the job offer, Dr. Blow=s review of the job offer, the QRC=s inquiry of the employer whether they could accommodate the job modifications recommended by Dr. Blow, and the employee=s testimony concerning the problems that she anticipated having with the proposed job. The judge concluded that the employee did not unreasonably refuse the July 6, 2006, written job offer because it was not clear from the offer how the work would be modified to fit the employee=s physical work restrictions. She ultimately concluded that, based upon the evidence and Aon the employee=s credible description of the job duties, the employee did not unreasonably refuse an offer of employment.@
In this case, the dispute or issue presented to compensation judge was the employer and insurer's right to discontinue benefits on either one of two grounds asserted by the employer and insurer. The employee argues that the unappealed findings that the employee had attained MMI, and that 90 days had elapsed from the service of the MMI opinions, render the current issue on appeal moot. The employee also argues that, alternatively, substantial evidence exists to support the findings that the job offer was not within the employee=s restrictions and that the employee did not unreasonably refuse a job offer.
The employee argues that the compensation judge=s determination that the employee was not entitled to TTD from and after July 10, 2006, because the 90-day period post-MMI had elapsed, rendered moot the issue of whether the employee unreasonably refused the written job offer of July 6, 2006. Under Minn. Stat. ' 176.371, however, A[a]ll questions of fact and law submitted to a compensation judge at the hearing shall be disposed of@ by the compensation judge. Further, the rules require that the compensation judge=s decision must include A[a] determination of each contested issue of law or fact.@ Minn. R. 1415.3000, subp. 2.E. Based on the arguments presented at the hearing, the questions of what work restrictions were appropriate and whether the employee had unreasonably refused a job offer potentially were matters for the compensation judge to resolve at the hearing. Compare Heckard v. Minneapolis Metrodome Hilton, slip op. (W.C.C.A. Aug. 10, 1993) (the compensation judge was not required to make findings on all of the grounds for discontinuance which were before her where she found that ninety days had elapsed following the employee=s attainment of MMI and discontinued benefits on that basis).
The employer and insurer allege that the employee refused the offered job for personal reasons and not because her physical restrictions prevented her from performing the job duties. We will not address those alleged reasons, as that argument and information was presented to the compensation judge by the employer and insurer, she acknowledged that argument in her memorandum, and concluded that the allegation was not determinative to the issue of whether the employer had a suitable job to offer the employee. The judge instead concluded that Athe employee credibly testified to the problems that she would have doing the work that was proposed.@ At Finding No. 13, the judge found that:
[The employee] credibly testified that she would not be able to stand or walk one-third of the day and has a problem with frequent sitting because of the pain that is caused by having her leg hang. The employee credibly testified that it would be a problem for her to push or carry items as indicated by the analysis and that she would not be able to use a step ladder or stool or crouch to reach lower shelves. The employee credibly testified that in order to do the prep work she would have to have someone get the items and bring them to her and there would not be enough to do to fill the day. Based upon preponderance of the evidence and on the employee=s credible description of the job duties, the employee did not unreasonably refuse an offer of employment.
(Memo., p. 6.).
The compensation judge was provided with the employee=s medical and rehabilitation records for her review, in addition to testimony presented by the employee and QRC, and found the employee=s testimony to be credible concerning the difficulties she would have with the various requirements of the job. In so much as the compensation judge based her conclusions, at least in part, on the employee=s credibility, we will not disturb that aspect of the judge=s analysis. See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).
This court=s function on review is to determine whether the findings of fact and the order are clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted. Minn. Stat. ' 176.421, subd. 1. 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). Based on our review of the evidence, we conclude that the record supports the compensation judge=s finding that the employee did not unreasonably refuse the job offer, and we affirm.
 Pursuant to Minn. R. 5223.0520, subp. 4.B.(2)(b), rated on the basis of loss of function in the left ankle.
 Pursuant to Minn. Stat. ' 176.101, subd. 1(j), temporary total disability compensation Ashall cease 90 days after the employee has reached maximum medical improvement, except as provided in section 176.102, subdivision 11, paragraph (b).@
 The compensation judge granted a discontinuance as of July 10, 2006, which was the date on which the NOID was filed with the Department of Labor and Industry.