SHANNON M. MOON, Employee, v. A CHANCE TO GROW, INC., and RISK ADMIN. SERVS., INC., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 8, 2008
TERMINATION OF EMPLOYMENT - MISCONDUCT. Given the record as a whole, the compensation judge appropriately concluded that the employee had not been discharged for misconduct within the meaning of Minn. Stat. ' 176.101, subd. 1(e)(1) and Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973), and that the Tilseth definition for misconduct remains applicable in workers' compensation cases, despite a change in the unemployment compensation statute.
JOB OFFER - REFUSAL. Where the employer and insurer failed to introduce evidence concerning the employee=s rehabilitation plan, the employer and insurer also failed to establish that the employee refused a job offer within the meaning of Minn. Stat. ' 176.101, subd. 1(i).
CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee had not reached maximum medical improvement and was still actively treating for her work-related foot injury as of the hearing date, where significant restrictions imposed by her treating doctor for the foot injury were still in place, and where even the employer=s independent examiner had concluded that the employee should be restricted to seated work as a result of the foot injury, it was reasonable for the compensation judge to conclude that the foot injury remained a substantial contributing cause of the employee=s disability following her termination from employment, notwithstanding the employee=s arguable development of another condition which may also have contributed to her disability.
Determined by: Pederson, J., Stofferahn, J., and Rykken, J.
Compensation Judge: Harold W. Schultz, II
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent. Thomas F. Coleman and Whitney L. Teel, Cousineau McGuire, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits, arguing that the judge erred in concluding that the employee was not discharged for misconduct within the meaning of Minn. Stat. ' 176.101, subd. 1(e)(1), erred in concluding that the employee did not constructively refuse suitable work, and erred in concluding that the employee=s work injury continued to be a substantial contributing cause of the employee=s wage loss. We affirm.
Shannon M. Moon [the employee] began working as a full-time day care provider for A Chance to Grow, Inc. [the employer], in March of 2006. On September 7, 2006, she sustained a work-related injury when she twisted her right foot and lost her balance, falling onto her right side, while stepping down from a raised play area at work. She later testified that she experienced pain in the top of her right foot following the fall, and she reported the injury to her supervisor.
A few days later, on September 11, 2006, the employee was seen by Dr. Catherine DeMoss, apparently at the direction of the employer. Dr. DeMoss concluded that the employee had sustained an acute right lower extremity sprain as a result of the work incident, and she advised the employee to wear a splint, limit her walking, elevate her right leg, and perform only seated work. Treatment notes from this first examination indicate that the employee was also complaining of right knee pain at the time.
Dr. DeMoss subsequently took the employee off work and referred her to Dr. Edward Szalapski for an orthopedic evaluation, which took place on September 21, 2006. Dr. Szalapski initially diagnosed a strain involving the mid foot, prescribed a CAM Walker fracture brace, and indicated that the employee was not yet ready to return to her usual daycare job. On October 5, 2006, Dr. Szalapski noted that swelling in the employee=s right foot was down but recommended that the employee continue using the CAM Walker for another couple of weeks, at which point an MRI or bone scan might be advisable if the employee had not made adequate progress.
After an October 12, 2006, appointment, the employee became dissatisfied with Dr. Szalapski=s care, and, over the next several months, she was treated or evaluated by several other physicians. Dr. Seth Rosenbaum, who apparently became the employee=s primary treating physician with respect to the work injury, ordered an MRI scan of the employee=s right foot and ankle. That scan, performed on November 10, 2006, disclosed a longitudinal split tear of the peroneus brevis tendon.
The employee apparently made two short-lived attempts to perform light, seated jobs for the employer during the fall of 2006, but she was for the most part off work following her injury until early 2007. She received a written warning from the employer over job attendance issues on October 19, 2006. At about this same time, she began receiving rehabilitation assistance from QRC Paul Kriegler.
On January 12, 2007, the employee was seen by Dr. Michael D=Amato, for an independent medical examination at the request of the employer and insurer. In his report of January 18, 2007, Dr. D=Amato concluded that the employee was suffering from a right peroneus brevis tear with mild subtalar mid foot sprain as a result of the September 7, 2006, work incident, and he recommended further treatment, including possible surgery, given the employee=s failure to improve with conservative care. He also indicated that the employee was capable of full-time work Ain a sitting position@ and predicted that restrictions could eventually be lifted if the employee experienced significant improvement from additional treatment. Finally, Dr. D=Amato reported that both examination and MRI scans failed to reveal any basis for the employee=s low back and right knee complaints, which had begun shortly after the September 7, 2006, fall and which the employee connected to that incident.
On February 6, 2007, the employee saw Dr. John Steubs, on referral from Dr. Rosenbaum, for a surgical evaluation. Noting that the employee Ademonstrat[ed] an exaggerated and apparently functional response to evaluation of her right lower extremity,@ Dr. Steubs was Avery reluctant and leery to proceed with any type of surgical intervention for fear of actually making her worse.@ He did, however, recommend a vigorous course of physical therapy.
On February 7, 2007, the day after Dr. Steub=s exam, the employer offered the employee full-time, light-duty clerical work consistent with the restriction recommended by Dr. D=Amato. A few days after receiving the offer, the employee returned to see Dr. Rosenbaum, who kept her off work for another week and indicated that she would then be able to work four hours per day, three days per week, with no consecutive work days, no lifting over 10 pounds, no bending, squatting, reaching below the knee, or driving, and limited standing and walking. The employer subsequently offered the employee a job within Dr. Rosenbaum=s restrictions and also arranged for a cab to take the employee to and from work.
The employee accepted the employer=s offer and returned to light-duty clerical work on February 28, 2007, subject to the restrictions set by Dr. Rosenbaum. Problems arose almost immediately. On at least one occasion, the cab sent to bring the employee to work smelled of cigarette smoke, triggering the employee=s longstanding asthma. Also, the desk at which the employer had the employee sit was situated below a vent blowing cold air, making the employee uncomfortable. Dr. Rosenbaum subsequently added restrictions relating to exposure to cold air (and cigarette smoke), and the employer moved the employee=s desk and even blocked the vent, but the employee continued to complain of the cold.
From the employer=s perspective, the employee=s work was unsatisfactory, primarily because of the employee=s pace. Laurel Kelly, the employer=s director of human resources, testified that Ait was painful to watch how slowly [the employee] would work.@ According to a record of verbal counseling from March 12, 2007, the employee had affixed only 40 address labels to envelopes in the hour and one half she had been at work, thereby taking more than two minutes, on average, to peel off each label and affix it to an envelope. The counseling record from that date also indicates that the employee had been 35 minutes late to work, having refused the cab initially sent to pick her up because the cab smelled of smoke.
The employer also documented other concerns with the employee=s performance and behavior at work. A written warning from March 21, 2007, indicates that the employee left work early on March 19, 2007, due to complaints of pain and that she called in the morning of March 21, 2007, to indicate that she would be absent due to a doctor=s appointment. The employer considered this absence unexcused as the employee had been expected to make her medical appointments on her off time, given her abbreviated schedule, and to give the employer more notice of the appointments in any event. The March 21, 2007, written warning also described other employer concerns from several days before, as follows:
3/16/07 - Ms. Moon was only able to write 8 PO=s [purchase orders] of 15 needed (this was a form in which about 7 or 8 lines needed to be filled in). She said she could not do any more because her hand was cramping so she was assigned to stuff 310 newsletters (no folding) into 9 x 11 envelopes. She was asked to complete 150 this day. She was only able to complete 47 within her 4 hours of work time. This continues to be an unacceptable pace of work. For reference, another employee was able to complete stuffing a similar number of newsletters in a twenty minute time period.
3/19/07 - Ms. Moon was asked to complete the task of writing the remaining 7 PO=s and said she would only be able to do it left handed (she is right handed). That task was reassigned to another person. She was asked to continue to stuff newsletters (we had a deadline for mailing) and in the 1 hour of time she was here, she was able to only finish putting 11 newsletters into envelopes, averaging almost six minutes per newsletter. The newsletters had to be reassigned to another staff person who was able to complete the remaining 200 newsletters, label them and run them through the postage meter in less than 4 hours.
On March 22, 2007, the employee returned to Dr. Rosenbaum for Aa new problem that she developed in the course of her duties at work,@ which the doctor described as a Ahighly repetitive handwriting task that her superior insisted needed to be performed at high speed.@ Dr. Rosenbaum indicated that the employee had Aacutely overworked the wrist and hand area producing an acute tenosynovitis but also has a complex regional pain syndrome developing in this region of her body.@ Based on these diagnoses, Dr. Rosenbaum recommended restrictions on hand use.
When the employee reported for work on March 23, 2007, Ms. Kelly, the human resources director, gave her the written warning from March 21, 2007, and also a written copy of a verbal warning from March 12, 2007. Ms. Kelly also informed the employee that the employer had been advised that it was not required to accommodate Dr. Rosenbaum=s restriction on hand use, because the employee=s hand condition was not work-related, and that the employee would be expected to perform her assigned clerical work. Shortly thereafter, the employee asked for a first report of injury. When Ms. Kelly asked the employee if she was refusing to do her assigned work, the employee replied no, but she indicated that she was not able to do the work because of Dr. Rosenbaum=s restriction. Ms. Kelly then terminated the employee from her employment.
On March 28, 2007, the employer and insurer filed a Notice of Intention to Discontinue Workers= Compensation Benefits [NOID], alleging the following grounds for discontinuance:
1. Employee was terminated for performance and attendance reasons unrelated to work injury. As employee is no longer employed no TPD or temporary partial is due.
2. Employer and insurer provided light duty work to employee within restrictions of Dr. D=Amota [sic] and Dr. Rosenbaum relative to work related ankle injury. Employee=s conduct constitutes a defacto refusal of a suitable job offer. Any future wage loss is unrelated to the work injury.
3. Employee purports to be unable to work for reasons unrelated to the work injury. This alleged inability to work is due solely to none [sic] work related problems which are a superseding intervening cause. Therefore, no temporary partial disability due.
The employee objected to the proposed discontinuance, and the matter was set for hearing. Prior to the hearing date, the employee applied for but was denied unemployment benefits. The department of employment and economic development determined that, although she had not been discharged for misconduct, the employee was not eligible for benefits because her physician had indicated that she was totally unable to work.
The expedited discontinuance hearing was held on June 22, 2007, before Compensation Judge Harold W. Schultz, II. At the beginning of the hearing, the employer and insurer alleged in part that no wage loss benefits were due because the employee had been terminated for misconduct within the meaning of Minn. Stat. ' 176.101. The employee objected, contending that misconduct had not been alleged in the NOID, but the compensation judge agreed to consider the issue. Witnesses at hearing consisted of the employee and Ms. Kelly; other evidence included medical and some rehabilitation records.
In a decision issued on July 20, 2007, the compensation judge concluded in part that the employee had not been discharged for misconduct, that the employee had not constructively refused a Areasonable job,@ and that the employee=s foot and ankle restrictions were a substantial contributing cause of her disability. Accordingly, the judge denied the proposed discontinuance and ordered the employer and insurer to pay temporary total disability benefits after March 23, 2007. The employer and insurer appeal.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2006). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
1. Application of the Act
In his memorandum, the compensation judge explained his rejection of the employer=s arguments as to misconduct, refusal of work, and causation of the employee=s disability before concluding the memorandum as follows:
There is no question that some of the employee=s conduct does raise red flags regarding her motivation. Also a couple of doctors were not impressed with her complaints in relation to the extent of the physical findings on the foot and ankle. However, for purposes of this litigation, the law favors the employee and she is awarded temporary total disability benefits accordingly.
Citing the paragraph quoted above, the employer and insurer contend that the compensation judge failed to apply the law in an evenhanded manner, in contravention of Minn. Stat. ' 176.001. Therefore, contending that the judge erroneously based his decision Aon the idea that the law favors the Employee,@ the employer and insurer maintain that the case should be Aremanded in its entirety.@ We are not persuaded.
At the beginning of his memorandum, the compensation judge noted that, in order to prove discharge for misconduct, the employer had to show that the employee=s actions demonstrated a Awilful and wanton disregard of the employer=s interest,@ which, the compensation judge observed, was a Atough standard to reach.@ The judge=s memorandum as a whole merely reflects the view that misconduct and constructive refusal of work are difficult to establish under applicable case law standards. As we see it, the judge=s assessment does not reflect any inappropriate bias or misunderstanding of the law. Therefore, because we are not persuaded that the judge evaluated the evidence using any improper standard, we reject the employer and insurer=s request to remand the matter for reconsideration.
Pursuant to Minn. Stat. ' 176.101, subd. 1(e)(1), an employee is not entitled to recommencement of temporary total disability benefits if the employee is terminated from employment for misconduct. In Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998), this court adopted the definition of misconduct contained in the supreme court=s decision in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973), an unemployment case, quoting from Tilseth as follows:
[T]he intended meaning of the term >misconduct= . . is limited to conduct evincing such wilful or wanton disregard of an employer=s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of [the] employer=s interest or of the employee=s duties and obligations to the employer. On the other hand more inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence is isolated instances, or good-faith errors in judgment or discretion are not to be deemed >misconduct.=
Langworthy, slip op. at 3, quoting Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646 (quoting Boyton Cab Co. v. Neubeck, 237 Wisc. 249, 259, 296 N.W.2d 636, 640 (1941)).
In an unappealed finding, the compensation judge in the present case determined that the employee had been terminated by the employer for Aunsatisfactory work performance and poor attendance.@ The judge then went on to conclude that the employee had not engaged in misconduct within the meaning of the workers= compensation act, explaining in his memorandum that the employee=s actions did not "constitute wilful and wanton disregard of the employer=s interest@ as contemplated by Tilseth.
On appeal, the employer and insurer argue that the Tilseth standard for misconduct has been superseded by a change in unemployment law, at Minn. Stat. ' 268.095, subd. 6, which now defines misconduct, in part, as follows:
Subd. 6. Employment misconduct defined. (a) Employment misconduct means any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that displays clearly a substantial lack of concern for the employment.
Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.
Id. Accordingly, the employer and insurer contend, the employee=s behavior in this matter should be evaluated under Athe more current standard.@ We are not persuaded.
We note at the outset that the employer did not raise this issue at the hearing level, and, generally, an issue raised for the first time on appeal is not properly before this court and will not be addressed. Troester v. Drapery Serv. of Austin, 49 W.C.D. 74 (W.C.C.A. 1993); Malinowski v. North Am. Cable Sys., slip op. (W.C.C.A. Dec. 14, 1989). Moreover, arguable changes in unemployment law notwithstanding, there have been no pertinent changes in the workers= compensation act that would prompt us to reconsider our adoption of the Tilseth standard. As such, we decline to do so.
The employer and insurer also contend that, even if the Aarchaic@ definition from Tilseth still governs, the employee=s conduct clearly satisfied that standard. This argument has more merit. The employee did not either refute or explain the employer=s description of her behavior at work. However, given the record as a whole, we will not reverse.
The judge did not explain his decision on misconduct in any detail. We note, however, that, while the employer had documented performance and attendance issues, the employee was not terminated until she invoked Dr. Rosenbaum=s restrictions on hand use and requested a first report of injury. These particular actions on the employee=s part - - which clearly triggered the employee=s termination on March 23, 2007 - - did not constitute misconduct as contemplated by the workers= compensation act. We therefore affirm the judge=s decision on this issue.
3. Constructive Refusal
Pursuant to Minn. Stat. ' 176.101, subd. 1(i), temporary total disability benefits shall cease and may not be recommenced if the employee
refuses an offer of work that is consistent with the plan of rehabilitation filed with the commissioner which meets the requirements of section 176.102, subd. 4, or if no plan has been filed, the employee refuses an offer of gainful employment that the employee can do in the employee=s physical condition.
In rejecting the employer and insurer=s claim that the employee constructively refused a job offer on March 23, 2007, the compensation judge relied on Olenchak v. Wenzel Plumbing & Heating, slip op. (W.C.C.A. Mar. 8, 2005), apparently construing that case to hold that, because the employer and insurer did not establish that the offered job was consistent with the employee=s rehabilitation plan, there had been no refusal of work within the meaning of Minn. Stat. ' 176.101, subd. 1(i). We do not think Olenchak stands for this proposition; rather, the court in Olenchak found no reason to address the rehabilitation plan aspect of Minn. Stat. ' 176.101, subd. 1(i), because we resolved the refusal issue on another basis.
At the same time, however, we cannot conclude that the compensation judge erred in basing his decision on the lack of evidence regarding the employee=s rehabilitation plan here. An employer and insurer seeking to avail themselves of the cessation provisions of Minn. Stat. ' 176.101 have the burden of establishing that all the criteria of the statute have been satisfied. In the present case, the employee had a QRC, and amendments to the employee=s rehabilitation plan were submitted as evidence, but the employer and insurer failed to either introduce the rehabilitation plan itself or to establish that no plan was then in place. There was no testimony by the QRC. Under these circumstances, the compensation judge correctly concluded that the employee had not refused a job offer within the meaning of Minn. Stat. ' 176.101, subd. 1(i).
4. Substantial Contributing Cause
The employer and insurer also contend that the compensation judge erred in awarding temporary total disability benefits in that the employee=s work-related foot and ankle condition was no longer a substantial contributing cause of her wage loss following her March 23, 2007, termination from employment. In support of this argument, the employer and insurer note that the employee=s work-related condition did not prevent her from working and that the employer had offered the employee a job within the restrictions originally recommended by Dr. Rosenbaum. According to the employer and insurer, the employee=s Arefusal to work, other intervening injuries and failure to search for work were the substantial factors in any wage loss after March 23, 2007.@ This argument has no merit.
We have already affirmed the compensation judge=s decision that the employee did not constructively refuse a job offer within the meaning of the statute, and we need not revisit that issue here. Moreover, the employee=s job search efforts were not placed at issue by the NOID, were not raised as an issue at hearing, and were not evaluated by the compensation judge. Under these circumstances, the employer and insurer may not raise that defense now. See Minn. Stat. ' 176.238, subd. 6 (an expedited hearing on discontinuance Ashall be limited to the issues raised by [the NOID] unless all parties agree to expanding the issues@); see also Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988) (basic fairness requires notice and reasonable opportunity to be heard before decisions on benefit entitlement may be made). Finally, substantial evidence easily supports that the compensation judge=s decision that the employee=s hand condition - - whether or not work-related - - is not a superseding, intervening cause of the employee=s disability. It is undisputed that the employee had not reached maximum medical improvement from her work-related foot injury as of the date of hearing, she was still receiving treatment for that condition, and Dr. Rosenbaum=s significant restrictions, for the foot condition, were still in place. Even Dr. D=Amato had indicated that the employee was limited to seated work. As such, regardless of the fact that the employee=s hand condition may further limit her ability to work, the work-related foot condition clearly remains a substantial contributing cause of the employee=s disability. The judge=s award of temporary total disability benefits is therefore affirmed.
 In notes from this date, Dr. Szalapski indicated that he was Aconcerned about the magnitude of the employee=s complaints@ given the relative lack of physical findings on exam. The employee testified that Dr. Szalapski was rude and had "abandoned" her.
 Indeed, even applying the current statutory definition of misconduct, the department of employment and economic development concluded, also, that the employee had not been terminated for misconduct for purposes of eligibility for unemployment compensation. In fact, the employer did not even claim that the employee had been terminated for misconduct for purposes of unemployment benefit eligibility, asserting instead that she was fired for poor performance. The employer then asserted that the employee=s unemployment benefit claim should be denied because the employee was not capable of working. Benefits were ultimately denied on the latter basis.
 While the employer and insurer contend that the matter should be remanded for evidence as to the employee=s rehabilitation plan, they cite no authority or rationale that would justify giving them a second opportunity to prove their case.
 We also note that, because the employee had rehabilitation assistance, the issue would not be whether the employee made a diligent job search but whether the employee made a good faith effort to cooperate. Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989). The compensation judge concluded that there was no evidence that the employee failed to cooperate with rehabilitation efforts, and the employer and insurer have not pointed to any such evidence. In fact, as the employer and insurer acknowledge in their brief, the employee's cooperation with rehabilitation was not at issue.