DENNIS W. LOHRKE, Employee/Appellant, v. FIRST STUDENT and AIG/GALLAGHER BASSETT SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 31, 2008
JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination that the employee did not have a reasonable expectation of returning to work with the employer so as to excuse him from an obligation to engage in a diligent job search in order to receive temporary total disability benefits.
Determined by: Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman, and Carp, Minneapolis, MN, for the Appellant. Deborah L. Crowley and Jeffrey R. Homuth, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s conclusion that he did not have a reasonable expectation of returning to work with the employer so that he was excused from the obligation to engage in a diligent job search in order to receive temporary total disability benefits. We affirm.
Dennis Lohrke began working for First Student as a bus driver in August 2003. He drove a school bus in St. Paul and worked during the school year, taking the summers off. Toward the end of the 2004-2005 school year, the employee reported right shoulder pain from driving the bus. The employer reported an injury date of May 27, 2005, and accepted liability for the work injury.
The employee sought medical care for his sore right shoulder on June 3, 2005, at Now Care Medical Center. His condition was diagnosed as probable bursitis and he was given ibuprofen and a sling to use four hours a day. He was also given work restrictions of no bus driving.
The employee took his restrictions to his employer and he was given a “transitional duty assignment” for the remaining three days of the school year. He was to ride the bus on his usual route and instruct the driver on the turns to take. When the school year ended, the employer advised the employee that transitional work would be available during the summer but the employee responded that he did not work during the summer and rejected any job for the summer. The employee was not paid wage-loss benefits during the summer and has not claimed such benefits in the present case.
The employee did not return to Now Care Medical Center for his scheduled follow-up appointment. Instead, he saw Dr. Anne-Marie Mischel at North Suburban Family Physicians, who appears to have been treating the employee for an earlier work injury to the right hand which had resulted in digital artery occlusion and for which the employee was on blood thinner. Dr. Mischel’s chart notes of June 13 also indicate that the employee had left shoulder surgery done by Dr. David Kittleson at Summit Orthopedics in 1996. Dr. Mischel found impingement signs in the right shoulder and she referred him to Dr. Kittleson for further treatment.
The employee first saw Dr. Kittleson for his right shoulder on July 21, 2005. The employee reported pain in his right shoulder at six on a 10-point scale and stated that his shoulder was not getting better even though he was not driving bus. On exam, Dr. Kittleson found tenderness and crepitation. No specific diagnosis was made and an MRI was recommended. The MRI was done on July 28, 2005, and was read as showing mild to moderate supraspinatus tendinopathy and mild to moderate acromioclavicular joint arthrosis.
When the employee returned to Dr. Kittleson on August 4, a steroid injection was administered to decrease inflammation before beginning physical therapy. The employee returned on August 31 and noted the same level of pain. Dr. Kittleson gave the employee work restrictions of no driving and no outstretched or overhead use of the right arm. The restrictions were to be in effect until September 21, 2005. The employee did not send these restrictions to the employer at that time.
The school year started in September 2005. At the end of the previous school year, the employer gave all employees a form which was stapled to a paycheck. The form provided some dates for school starts, listed the date of the call-back meeting in August, asked employees to indicate whether they expected to seek summer work with the employer, and whether they intended to work in the 2005-2006 school year. Employees were also asked to confirm their intent to return for the school year by August 1, 2005. The employee does not deny receiving the form.
A call-back list was prepared by the employer from employee responses. That list notes Mr. Lohrke intended to return to work for the school year but had not called to confirm his intent. The employee testified that he made no calls to the employer after he stopped working in June 2005. Apparently at some time Mr. Lohrke received a telephone call from Rodney, identified as a dispatcher, as to whether or not he would be coming back to work for the employer. Mr. Lohrke apparently responded that he was not able to drive bus. The date of this conversation is not in the record.
The employer also scheduled call-back meetings for the morning and evening of August 23, 2005. Employees were notified of the meeting in the form given with the paychecks at the end of the school year and also by a letter sent to all employees in July. Attendance at a meeting was mandatory to confirm an employee was returning to work in the fall and also so that routes could then be assigned.
The employee testified that he did not receive the July letter, that he did not know of the meetings, and that, although he had gone to these meetings in at least one earlier school year, he was of the belief that the meetings were not mandatory. The employer considered the employee’s non-attendance at a call-back meeting to be abandonment of his job and he was terminated on that basis as of September 7, 2005. The employee testified that he never received any notice of termination and the record contains no evidence from the employer that the employee was sent any such notice.
The employee continued to treat conservatively with Dr. Kittleson and saw him again on September 20 and November 1. The employee received written work restrictions which covered the period from September 20 through December 13 and which were the same as those received in August. The employee testified, and the employer agreed, that sometime in November the work restrictions were mailed to the employer. There was no other communication between the employee and the employer.
In April 2006, Dr. Kittleson concluded that treatment of the employee’s condition required surgery. An IME done by Dr. Lowell Lutter on May 16, 2006, was in agreement. Surgery was done on August 29, 2006, by Dr. Kittleson. He performed a right shoulder arthroscopic surgery with partial labral excision, subacromial decompression and distal clavicular excision.
The employer and insurer began paying temporary total disability benefits as of August 29, 2006. The employee filed a claim petition seeking temporary total disability benefits from September 1, 2005, to August 29, 2006. The employer and insurer disputed the employee’s entitlement to those benefits, contending that the employee had failed to engage in a diligent job search. The employee agreed he had not engaged in a job search but argued at the hearing that he was excused from doing so because he had a reasonable expectation of returning to work with the employer.
The employee’s claim was heard by Compensation Judge James Cannon on June 14, 2007. In his findings and order of August 23, 2007, the compensation judge denied the employee’s claim. He concluded that the employee did not have a reasonable expectation of a return to work with the employer when he had failed to attend the call-back meeting and did not call, write, or make any contact with the employer to inquire about possible light-duty jobs for the 11 months of the employee’s claim. The employee appeals.
During the period of the employee’s claim, he was released to return to work by Dr. Kittleson with restrictions that precluded his return to work as a bus driver. In those circumstances, an employee establishes entitlement to temporary total disability by engaging in a diligent job search to no avail. Redgate v. Sroga’s Standard Service, 421 N.W.2d 729, 40 W.C.D. 933 (Minn. 1987). This court has held, however, that an employee may be excused from the obligation to make a diligent job search where there is a reasonable expectation that the employee will return to work with the date-of-injury employer. Glasow v. Gresser Concrete, slip op. (W.C.C.A. April 18, 1995).
The employee admits that during the period at issue, September 1, 2005, to August 29, 2006, he made no attempt to find work. He argues, however, that he expected to return to work with the employer and that he was never advised that he had been terminated and had never been provided with rehabilitation services even though he had provided the employer with disability slips. While the employer certainly could have handled this matter better, we are not dealing with an issue of the adequacy of the employee’s job search in which the lack of rehabilitation services might be determinative. The question here is whether total inaction on the part of the employee for 11 months is justified.
In June 2005, the employer had offered the employee transitional work through the summer and it was the employee’s decision not to work at that time. The employee had worked for the employer for two earlier school years, he had attended at least one previous call-back meeting, he had been notified of the meeting in August 2005 when he received his last paycheck in June, and the beginning of a new school year is generally known to the whole community. It was not unreasonable for the compensation judge to expect some action by the employee which would demonstrate an interest in returning to work with the employer.
In Sewell v. Pomps Tire Service, slip op. (W.C.C.A. May 7, 1996), this court, in allowing an employee to receive temporary total disability benefits despite the absence of a job search, referred to the “unrefuted evidence of a continuing employment relationship” which supported the employee’s reasonable expectation of a return to work with the employer. That evidence included the receipt of holiday pay, attendance at mandatory employee meetings, and weekly contact with his supervisor about returning to work.
We do not cite Sewell to provide a list of factors which must be considered in cases such as this. Sewell is cited, however, to note that a reasonable expectation of a return to work with the date-of-injury employer must be accompanied by some action on the part of the employee which demonstrates the alleged belief in a continuing employment relationship. In the present case, the only action taken by the employee in more than 11 months was to send disability slips on one occasion to the employer. Accordingly, we conclude substantial evidence exists to support the compensation judge’s determination that the employee did not have a reasonable expectation of a return to work with the employer, that the employee had an obligation to engage in a diligent job search, and that the employee’s failure to engage in a job search prevents his recovery of temporary total disability benefits.
The decision of the compensation judge is affirmed.