DONALD C. GUSTAFSON, Employee, v. DYNAMIC STRUCTURAL STEEL, LLC, and SFM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 26, 2009
STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(e)(1); TEMPORARY TOTAL DISABILITY - RECOMMENCEMENT; TERMINATION OF EMPLOYMENT - MISCONDUCT. The WCCA’s general adoption of the Tilseth definition of misconduct in an unemployment compensation case does not constitute an adoption of unemployment case law, in general, as precedent in workers’ compensation cases. Where the judge had reasonably credited the employee’s testimony that his light duty work at the employer gave him pain, and where the employee’s sometimes unexcused and excessive absenteeism from his job was mitigated by his difficulty and delay in seeing a physician instead of a physician’s assistant, the compensation judge’s conclusion that the employee’s excessive absences from work did not constitute misconduct under Minn. Stat. § 176.101, subd. 1(e)(1), was not clearly erroneous and unsupported by substantial evidence.
JOB SEARCH - SUBSTANTIAL EVIDENCE. Where the employee testified that he continued to search for work even after termination of both his employment and his formal rehabilitation assistance, and where that testimony was corroborated in the records of his still monitoring QRC, the compensation judge’s conclusion that the employee’s job search was reasonably diligent “under all the facts and circumstances” of this complex case was not clearly erroneous and unsupported by substantial evidence, even though the employee may not have been at all times optimally cooperating with the rehabilitation process.
JOB OFFER - REFUSAL. Where the employee actually did formally accept and intermittently perform the light duty job offered to him by the employer, although intermittently walking off the job with complaints of pain, and where the employee’s complaints of pain on performing the job were evidently credited by the compensation judge, the compensation judge’s implicit conclusion that the employee did not unreasonably refuse a suitable job offer for purposes of Minn. Stat. § 176.101, subd. 1(i), when he initially walked off from and frequently thereafter failed to report for the job that was offered him was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: James B. Peterson, Falsani, Balmer, Peterson, Quinn, & Beyer, Duluth, MN, for the Respondent. Joseph J. Mihalek and Adam D. Chelseth, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's awards of wage replacement and rehabilitation benefits. We affirm.
On July 30, 2007, Donald Gustafson sustained a work-related injury to his low back while transporting some angle iron with a forklift in the course of his work as a material handler with Dynamic Structural Steel, LLC. Following the incident, Mr. Gustafson [the employee] had an acute onset of low back pain, for which he was treated at St. Luke’s Occupational Health Denfeld Clinic, by physician’s assistant Kelsey Kuehn. PA Kuehn diagnosed lumbar strain, prescribed medications, recommended icing and stretching, and released the employee to work with restrictions against lifting more than ten pounds, against pushing or pulling more than twenty pounds, and against doing any bending or twisting. The employee was forty-six years old on the date of his injury and was evidently earning a weekly wage of $829.80. Dynamic Structural Steel, LLC [the employer] and its insurer acknowledged liability for the injury and commenced payment of benefits.
The employee’s medical and work history relevant to this appeal is complex. Subsequent to the employee’s injury, in follow-up on August 6, 2007, PA Kuehn assessed improving lumbar strain and relaxed the employee’s restrictions, releasing him to work restricted from lifting over forty pounds, from pushing or pulling over fifty pounds, and from operating any machinery. Three days later, the employee came in unscheduled to complain to PA Kuehn of increased pain after a day of doing a lot of bending and twisting at work, unable to reach an upright position. PA Kuehn referred him for chiropractic treatment, prescribed Lortab, and increased his work restrictions to no more than ten pounds lifting, no pushing or pulling or bending or twisting, and no climbing of ladders or driving of commercial vehicles. When he returned to see PA Kuehn again four days later, on August 13, 2007, the employee reported continued high levels of pain, with no relief consequent to the chiropractic treatment, complaining that he had had difficulty since his injury even holding his tools at work. PA Kuehn referred the employee for an MRI scan to rule out cauda equina and lumbar disc problems, continuing his work restrictions and his referral for chiropractic treatment. The scan was conducted on August 21, 2007, and was read to reveal mild degenerative disc disease at L3-4, L4-5, and L5-S1, mild spinal stenosis at L4-5 secondary to bilateral facet hypertrophy, and a small broad-based disc bulge at L3-4.
The insurer requested that statutory rehabilitation services be provided for the employee by QRC Steven Aldrich, who conducted a rehabilitation consultation with the employee on August 24, 2007. The employee was not working on that date but stated to the QRC that he wished to return to work as soon as possible and was willing to work light duty, indicating that he had earlier been reprimanded for his forklift driving and was concerned that the employer might terminate his employment. The Rehabilitation Plan developed by the employee and QRC Aldrich anticipated the employee’s return to work with the employer. The employee returned to see PA Kuehn on August 27, 2007, reporting continuing pain across his low back. Continuing her diagnosis of lumbar strain, PA Kuehn prescribed naproxen, home exercises, and icing, referred the employee for physical therapy, and released him to work with essentially the same restrictions as those she had issued on August 9, 2007. In his report on August 28, 2007, the employee’s physical therapist concluded that the employee’s lower back pain was “indicative of spinal stenosis” and of degenerative disc disease at L4-5. On September 4, 2007, QRC Aldrich noted in his report that, “[w]hile the employee is released for light work, his employer reports that they are unable to accommodate the work restrictions at this time until he is able to work as a forklift driver.”
When he saw PA Kuehn again on September 5, 2007, the employee reported that he was doing better, and PA Kuehn continued to prescribe naproxen, icing, home exercises, and therapy, releasing the employee to work restricted from lifting over twenty pounds, from pushing or pulling over thirty pounds, and from driving any machinery. The following day, apparently after talking with a representative of the employer, PA Kuehn relaxed the employee’s work restrictions to permit the employee to operate machinery on smooth surfaces, and the employee returned again to attend one session of physical therapy. On September 7, 2007, the employee returned to a light duty job with his employer and evidently worked at that job for three days, after which he was again off work and received wage replacement benefits through September 26, 2007. During that same interim, he either failed to show up for his scheduled physical therapy sessions or called in to reschedule them but declined available openings.
On September 25, 2007, at a meeting with the employee and his QRC, the employer offered the employee a temporary light duty job, to begin the following day, assisting painters “by preparing steel, cleaning and maintaining all work areas inside [the employer’s] [b]uildings, grounds maintenance on [the employer’s] property, other duties as required and within physician’s directives.” The job was described as meeting current medical restrictions, as entailing no sustained bending at the waist, and as being limited to twenty pounds lifting, to thirty pounds pushing and pulling, to no more than rare bending and twisting, and to driving only on even surfaces. The employee accepted the offer at the time of the meeting. On that same date, September 25, 2007, the employee saw PA Kuehn again, complaining of continuing pain and requesting that she refer him to another provider, and she agreed to refer him to physiatrist “Dr. Wallerstein or Dr. Weinman if he is not available.” Later on that same date, the employee evidently called back to the employer’s “Controller,” Lee Olsen, informing him that he was checking himself in for alcohol treatment and would not be reporting to work the following day, upon which information the employer and insurer discontinued payment of benefits to the employee.
By certified letter to the employee’s home address dated October 4, 2007, Mr. Olsen wrote to the employee, requesting proof by October 11, 2007, that the employee was in a treatment program and informing the employee that, should he not do so, the employer would consider him to have voluntarily terminated his employment with the employer. By FAX dated October 5, 2007, a clinical case manager at the Hazelden alcohol treatment center wrote to Mr. Olsen, informing him that the employee had been admitted to Hazelden for residential treatment of chemical dependency on October 1, 2007, with a tentative discharge date of October 29, 2007. On October 15, 2007, the employer served on the employee and his attorney a Notice of Intention to Discontinue the employee’s temporary total disability benefits, on grounds that
[t]he employee was to return to light duty work [on] 9/26/07. The employer can provide light duty work within restrictions at regular pay. Employee called the employer at 5:21 PM on 9/25/07 and stated he was not returning to work, but was admitting himself to the hospital for a non-work related issue.
The following day, October 16, 2007, QRC Aldrich cancelled the employee’s appointment with Dr. Wallerstein that had been scheduled for that date, due to the employee’s ongoing in-patient treatment at Hazelden.
On November 1, 2007, upon discharge from his treatment, the employee returned again to see PA Kuehn, who continued the employee’s prescription for home exercise, ibuprofen, and icing and referred the employee for physical therapy again and for an appointment with physiatrist Dr. Elizabeth Weinman on December 12, 2007, the earliest date available. With that, she released the employee to work with restrictions against lifting over twenty-five pounds, against pushing or pulling more than fifty pounds, and against doing any sustained bending, indicating in her treatment notes that she believed “that in a couple weeks of physical therapy with some strengthening work he will be at MMI for this injury and what is left will be chronic low back pain from the degenerative changes.”
On that same date, November 1, 2007, the employee and his QRC met with a representative of the employer to discuss modified job duties. At that meeting, the employee suggested that it might be best if the employer would lay him off so that he could take the time to seek other suitable work, since the work being offered to him did not include forklift driving, which he preferred, and since a personality conflict there was potentially threatening his continued sobriety. The employee requested that a specific job analysis be conducted by his QRC, and the employer’s representative indicated that he would check with the employer’s attorney. Five days later, on November 5, 2007, the employer declined to permit the job analysis, indicating that the job description that it had prepared and formalized on that date was sufficient. The duties of the offered job were described in this formal offer as follows:
Prepare steel for painting by cleaning the steel with a broom and paint thinner; perform housekeeping / maintenance of all areas on [the employer’s] property, including sweeping, and removal of debris/garbage from work areas inside and outside of buildings; painting of walls; assist Layout/Welders by locating parts for customer jobs; perform inventory of parts; other duties assigned and within physician’s directives.
The job was described as being limited to twenty-five pounds lifting, fifty pounds pushing and pulling, and only occasional bending and twisting, with no sustained bending. The offer indicated that all tasks were to be within the employee’s medical restrictions and that, if he needed assistance or clarification regarding his assigned job duties, the employee was to talk to his supervisor about it. The offer expressly provided that the expected return to work date was November 12, 2007, the cover letter indicating that this was “to allow you time to consider the JOB OFFER and to allow time for you to consult with your advisor(s).” On that same date, November 5, 2007, the employee expressed to his QRC a lack of confidence in the opinion of PA Kuehn as to his physical condition, noting that he had not yet seen a physician, so “how could she indicate” that his work injury was nearly healed.
On November 6, 2007, the employee saw PA Kuehn again, who referred him for six more sessions of physical therapy, one of which the employee attended on that date, but he was a no-show for his session on November 9, 2007. When he saw PA Kuehn again on November 15, 2007, the employee reported having been unable to work more than one full day and a few hours the next, due to his pain. He evidently made a “plea to be off work,” but PA Kuehn, concluding that the employee’s modified job sounded like “really appropriate light duty work” for him, declined to accommodate that request. She indicated that the employee “needs to be at work, that he is physically capable of working full shifts,” and that “[h]e needs to be up and do more activity than he has been doing.” With that she continued to prescribe physical therapy three times a week, with emphasis on strength building rather than stretching.
The employee evidently worked at his light duty job on November 12 and part of November 13, 2007, before leaving work complaining that his back hurt too much to continue. He reiterated to his QRC his wish to see a doctor instead of PA Kuehn, whose determinations and neutrality he did not trust, but the insurer on that same date declined to authorize payment for follow-up with anyone other than PA Kuehn. The employee and his QRC met with PA Kuehn on November 15, 2007, on which date she indicated that she had been able to schedule an appointment with Dr. Wallerstein for November 29, 2007, rather than wait for the appointment with Dr. Weinman on December 12, 2007. On November 19, 2007, the QRC received a call from Mr. Olsen reporting that the employee had called his foreman, Alan Zimmerman, to inform him that he was not planning to return to his job, due to increased pain, and that he would attempt to follow-up with a physician. The employee was a no-show also for his physical therapy sessions on that date and November 21, 2007, and he cancelled his session on November 23, 2007. He did attend one session again on November 26, 2007. He reported to work on November 26, 2007, but he evidently left before the end of the day with complaints of increased back pain, informing his foreman that he was going to discontinue treatment with PA Kuehn and follow up only with a physician instead. Later that day he attended his physical therapy session, but he failed to appear for his scheduled physical therapy session on November 28, 2007, after which the physical therapist informed QRC Aldrich that further appointments would be cancelled until further notice, due to the inconsistency of the employee’s attendance. When QRC Aldrich attempted to meet with Dr. Wallerstein on November 29, 2007, the date of the employee’s scheduled appointment with the doctor, the QRC was informed that the employee had cancelled the appointment and requested instead to keep his appointment with Dr. Weinman for December 12, 2007.
By letter dated November 29, 2007, the employer gave notice to the employee that his employment was being terminated as of that date “due to excessive, unexcused and unauthorized absences.” The notice identified one date earlier that month on which the employee had left work five hours early without permission and eight dates in that same month on which the employee had not reported for work at all. The notice indicated that, “[p]er the employee handbook, any absences in excess of five require a doctor’s statement verifying a medical basis for the absences. You have exceeded five absences and you have not provided us with a doctor’s statement justifying any of these absences.” The employer’s position was borne out by an “Hours of Work” provision, a “Long-term Sick Leave” provision, and a “Voluntary Termination” provision in the employer’s employee manual, which the employee had certified having read and understood on May 14, 2007. The hours of work provision provided in part that an employee must notify his supervisor by 7:30 a.m. on the date of any absence from work and that “[u]nreported or excessive tardiness or absences may, at [the employer’s] discretion, affect your pay or result in discipline.” The sick leave provision provided in part that “[l]eaves of more than five days which may be necessary because of illness or accident require the submission of a doctor’s statement, which must indicate the expected date of return to work.” The termination provision, updated and presented to all employees the week of October 8, 2007, and brought specifically to the employee’s attention by certified mail on October 18, 2007, provided in part that “[a]ny employee who does not show up for work or call in to notify their supervisor for three consecutive days shall be considered to have voluntarily terminated their employment with [the employer].” Subsequent to the employee’s termination, the employer and insurer instructed QRC Aldrich to discontinue essentially all rehabilitation assistance to the employee other than medical management and general telephone guidance of the employee’s self-directed job search.
On December 12, 2007, the employee was examined by Dr. Weinman, on referral from PA Kuehn. Upon interview and physical examination of the employee and review of his medical history, Dr. Weinman diagnosed status post lumbar contusion, left lumbar radiculitis, and mild degenerative disc disease of the lumbar spine, with core muscle weakness. On that diagnosis, the doctor issued the employee a book of home exercise instruction, advised him to try heat and Aspercreme, and referred him back to physical therapy for core muscle strengthening and trial of a TENS unit. She also advised the employee to resume aerobic exercise daily with an exercise bicycle, referred him for electrodiagnostic studies to evaluate for the possibility of a left lumbar radiculopathy, and advised him to obtain a lumbar cushion to use when he is sitting at home or in a vehicle. With that she released him to work eight hours a day five day a week, restricted from lifting more than fifteen pounds occasionally, from doing more than rare kneeling, squatting, bending, or twisting, and from doing any repetitive lumbar motion.
On December 17, 2007, the employer and insurer filed a request to terminate the employee’s rehabilitation benefits, on grounds that the employee had been terminated for misconduct and had failed to cooperate with his medical treatment plan and his rehabilitation plan. On December 27, 2007, on referral from Dr. Weinman, the employee underwent an EMG, which was read to reveal in part findings consistent with a sensory motor polyneuropathy, possibly metabolic in nature and related but not limited to an alcoholic peripheral neuropathy, with no evidence of active lumbar radiculopathy or plexopathy.
On January 8, 2008, the employee returned to physical therapy, and on January 10, 2008, he filed a claim petition, alleging entitlement to (1) temporary total disability benefits from October 28 to November 11, 2007, and continuing from November 18, 2007, (2) temporary partial disability benefits from November 12 to November 17, 2007, and (3) rehabilitation assistance and retraining benefits - - all consequent to his work injury on July 30, 2007. The employer and insurer denied the claim on January 28, 2008, on grounds (1) that the employee had disqualified himself by failing to accept offered employment within his restrictions and failing to cooperate with rehabilitation assistance and medical treatment, (2) that the employee failed to conduct a diligent search for work after being fired for excessive absenteeism, and (3) that the employee’s claim was barred under the statute because his termination was for misconduct. Over the course of the month of January 2008, QRC Aldrich had noted in his records that he had recommended to the employee a good book on seeking employment, that the employee had later reported not finding the book at the library but obtaining a different one in its stead, and that the employee was continuing to seek employment although he had not received any job offers.
The employee saw Dr. Weinman again on January 23, 2008, on which date the doctor diagnosed low back pain and left lumbar radiculitis, with mild multilevel lumbar degenerative disc disease, mild spinal canal stenosis at L4-5 per the employee’s MRI scan, and probable peripheral polyneuropathy per his EMG study. She noted also that the employee had significant core muscle weakness and left groin pain. Dr. Weinman ordered a left hip x-ray, continued the employee’s restrictions, and recommended that he continue with his physical therapy program two or three times a week for six weeks. The employee did attend a physical therapy session on that same date, but he subsequently cancelled his session for January 28, 2008, and on January 29, 2008, he was admitted to a hospital with alcohol intoxication and was admitted to detox on a hold. Physical therapy sessions for January 30, 2008, and February 1, 2008, were cancelled, and, after apparently keeping his therapy appointments on February 4, 6, and 11, the employee cancelled again on February 13, 2008.
On February 15, 2008, an administrative conference was held on the employer and insurer’s request to terminate rehabilitation services. On February 19, 2008, the employee was provisionally discharged from physical therapy for excessive missed appointments. In his report on February 20, 2008, QRC Aldrich recommended “that I continue to maintain periodic contact with the employee to assess his physical therapy progress and determine the results of his self-directed job search efforts.” On February 25, 2008, by which date the employee had missed seven of sixteen scheduled therapy sessions, the employee’s physical therapy was apparently recommenced following the employee’s complaint that he had been sick and was not aware of the agency’s discontinuation policy. By a Decision and Order filed on March 4, 2008, the employer and insurer were allowed to terminate the employee’s rehabilitation services, due to the employee’s failure to cooperate with rehabilitation and medical treatment plans. On March 13, 2008, the employee filed a request for formal hearing in the matter, which was subsequently consolidated with the employee’s claim petition on March 28, 2008. On March 31, 2008, QRC Aldrich filed a Notice of Rehabilitation Plan Closure, pending outcome of the formal hearing in the matter.
On April 1, 2008, the employee saw Dr. Weinman again in follow-up, with little change in his low back symptoms. Dr. Weinman continued the employee’s diagnosis and work restrictions, prescribed medications, considered a repeat MRI and a functional capacity evaluation, and opined that the employee would benefit from a work hardening program and vocational rehabilitation assistance.
On April 17, 2008, the employee was evaluated for the employer and insurer by orthopedic surgeon Dr. Richard Strand. Upon interview and physical examination of the employee and review of his medical records, Dr. Strand diagnosed lumbar contusion based on the work incident of July 30, 2007, together with preexisting multilevel lumbar degenerative disc disease. It was Dr. Strand’s opinion that the employee’s lumbar contusion was not a substantial contributing cause of his current complaints, that the incident of July 30, 2007, had resulted in only a temporary aggravation, and that the degenerative changes in the employee’s back were unrelated to his work. Dr. Strand concluded further that the employee had reached maximum medical improvement without any permanent partial disability related to his July 2007 work injury, probably by not long after August 6, 2007, when he returned to work with a forty-pound lifting restriction. Dr. Strand concluded finally that the employee was subject to no restrictions related to his work injury and that any restrictions to which he might be subject were minimal and related to his nonwork-related degenerative disc disease.
The employee saw Dr. Weinman in follow-up once more on May 28, 2008, reporting that his low back pain was better on most days but that he had worse left leg discomfort after activity, which was causing him to limp. Dr. Weinman diagnosed degenerative disc disease with mild spinal stenosis by MRI and left L5 radiculopathy by examination, noting that the latter was not demonstrated by EMG, the EMG findings being consistent with a sensory motor polyneuropathy. On that diagnosis, Dr. Weinman continued the employee’s home exercise program and prescribed Amitriptyline, scheduling follow-up in six weeks.
The matter came on for hearing on June 20, 2008. Issues at hearing were as follows: (1) whether the employee’s entitlement to recommencement of temporary total disability benefits is barred due to a termination of employment with the employer for misconduct; (2) whether the employee is entitled to wage replacement benefits after November 5, 2007, particularly with regard to the diligence of his job search; and (3) whether the employee is entitled to resumption of rehabilitation services. In support of his claim, the employee offered into evidence at hearing undated listings of twenty-one different job openings listed in the Job Service, which the employee testified that he had noted and had inquired into during the period of his claim. Without any other supporting contemporaneous documentation, the employee testified that he had continued to search for work even after termination of his employment and of his formal rehabilitation assistance. He testified also that he did not first see Dr. Weinman until December 12, 2007, because “that was the soonest that we could get in.” The employee did not dispute the fact that he missed several days of work without a provider’s excuse, asserting only that he did inform the employer that he didn’t want to work until he had seen a doctor instead of just a physician’s assistant. In other testimony, the employee acknowledged that he had applied for unemployment compensation following termination of his employment with the employer and that his application had been denied on grounds that he had been terminated for misconduct. And he acknowledged also that he really did not want to go back to working for the employer and would rather work somewhere else.
Also offered into evidence at hearing was the testimony of the employee’s QRC, Steven Aldrich. In addition to corroborating the employee’s testimony that December 12, 2007, was the earliest that the employee could get in to see Dr. Weinman, Mr. Aldrich testified that, although he asked to do a job analysis of the job offered to the employee upon his return from his treatment at Hazelden, he was denied permission to do so. On cross examination he testified also that, before accepting the job that was offered him in November of 2007, the employee had told him that the job really wasn’t of much interest to him, that he felt it was demeaning, and that he would prefer to go to work for someone other than the employer. Mr. Aldrich also testified, on questioning from the compensation judge, that, in his opinion, the employee was not cooperating with the rehabilitation process when, upon his return from Hazelden at the end of October 2007, the employee stopped going to physical therapy and stopped consistently calling in to work before not reporting.
Also testifying at hearing was the employer’s plant foreman, Alan Zimmerman, who testified in part that neither the employee nor his QRC ever indicated to him that the jobs offered to the employee were beyond the employee’s restrictions or otherwise objectionable. Mr. Zimmerman testified that the employee was repeatedly told that he should never perform work outside his restrictions and that if he had any issues with any of the tasks assigned him he should let his foreman know. He testified further that, when he met with the employee and QRC Aldrich following the employee’s November 15, 2007, visit with PA Kuehn, he again stressed to the employee that he should do no work outside his restrictions and that he should inform Mr. Zimmerman if he felt as if he were being asked to do anything that he could not physically handle. Mr. Zimmerman testified that the employee never thereafter requested any modification of the job he had agreed to perform. He testified that the employee did ask to use a roller rather than a brush in the painting part of his job but that Mr. Zimmerman had declined that request because the roller would have been harder on the employee’s back than a brush would have been in the context of the work to be done. Mr. Zimmerman testified also that, although he never provided any documentation indicating that he was restricted from climbing ladders, the employee did complain about having to go one step up on a ladder to paint, upon which complaint Mr. Zimmerman had responded by telling the employee to go only as high as he was comfortable.
By findings and order filed August 15, 2008, the compensation judge concluded in part that, subsequent to his return to work on September 7, 2007, the employee experienced a flare-up in his low back pain that was caused by repeated bending entailed in his job. The judge found also that, following his return to work on November 12 and 13, 2007, the employee experienced another flare-up of back pain, after which, in contact with his QRC, he had again requested treatment by a doctor rather than PA Kuehn and that that request was refused by the insurer. On those findings, the compensation judge concluded (1) that the employee’s termination by the employer on November 29, 2007, was not for misconduct within the definition of applicable case law and statute, (2) that the work restrictions issued by Dr. Weinman “were at all times reasonable for employee’s low back symptoms causally related to his July 30, 2007 work injury residuals,” (3) that, with the exception of the time period January 26, 2008, through February 19, 2008, the employee had demonstrated a sufficiently reasonable job search to entitle him to temporary total disability benefits from November 5, 2007, through the date of hearing, “considering [that he had had] no job search rehabilitation assistance,” and (4) that the employee was entitled also to five days of temporary partial disability benefits and rehabilitation services, as his symptoms and absences from work were causally related to his July 30, 2007, work injury. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[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, “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.” Id.
The compensation judge found that the employee’s termination from employment by the employer was not for misconduct as contemplated by Minnesota Statutes section 176.101, subdivision 1(e)(1), and that the employee’s job search was sufficiently diligent not to bar his entitlement to temporary total disability benefits for all but a brief period of his claim. The employer and insurer contend that that conclusion is unsupported by substantial evidence and erroneous under applicable law on the following grounds: (1) the repeated failure to show up for work for which the employee was terminated does constitute misconduct under the statute and so bars recommencement of the employee’s temporary total disability benefits; (2) substantial evidence does not support the judge’s conclusion that the employee did not fail to conduct a reasonably diligent job search; and (3) substantial evidence does not support the judge’s adoption of the employee’s opinion, over the opinions of both the treating doctor and the independent medical examiner, that some of the light duty work offered to him was beyond his physical abilities and therefor justified his “refusal” of the employer’s offer of light duty employment.
1. Misconduct under Minnesota Statutes section 176.101, subdivision 1(e)(1)
Minnesota Statutes section 176.101, subdivision 1(e)(1), provides that, where temporary total disability benefits have ceased because the employee returned to work, temporary total disability benefits “may be recommenced if the employee is laid off or terminated for reasons other than misconduct if the layoff or termination occurs prior to 90 days after the employee has reached maximum medical improvement.” Minn. Stat. § 176.101, subd. 1(e)(1) (underscoring added). At Finding 17, the compensation judge concluded that the employee’s termination by the employer for excessive absences on November 29, 2007, “was not for misconduct within the definition of Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973), Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998) and Minn. Stat. 176.101, subd. 1(e)(1).” The judge went on in that finding to explain that “[t]he unexcused absences from the workplace were directly related to [the employee’s] work injury residuals, working beyond his physical capabilities and his inability to have a physician examine him instead of employer’s work-rite physician’s assistant despite repeated requests.” In his memorandum, the judge implied that, while the employer may have been justified in terminating the employee, it was clear to him “that the employee’s conduct was not conduct evincing a willful or wanton disregard of the employer’s interest,” as contemplated by the statute and case law. The judge noted further that, except for November 21, 2007, the employee had informed his employer that he would not be back to work until he saw a physician rather than a physician’s assistant. The employer and insurer contend (1) that excessive absenteeism is misconduct under Minnesota case law proceeding from Tilseth, (2) that the unexcused absences in this case were extraordinarily excessive in light of precedent case law and were in violation of the employer’s express policy, (3) that the employee was not required to work beyond his capabilities, and (4) that the employee was not denied a referral to a physician. We are not persuaded.
This court has adopted the definition of “misconduct” established by the supreme court in Tilseth v. Midwest Lumber Co., an unemployment compensation case, in which the court indicated that the meaning of “misconduct” was
limited to conduct evincing such willful 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 interests or of the employee’s duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed “misconduct.”
Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (Minn. 1973), quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941).
The employer and insurer cite two cases from Minnesota unemployment compensation case law in support of their contention that excessive absenteeism is a proper basis for a finding of workplace misconduct in a workers’ compensation context. We would reiterate at the outset, as we have stated before, “our general adoption of a definition of misconduct [the Tilseth definition] also used in Minnesota unemployment law cases does not constitute an adoption of unemployment case law as precedent in applying that definition, since different factors are often involved in determining what expectations are reasonable on the part of employers and employees in the post injury employment of a disabled worker than are present in the usual unemployment law case.” Figgs v. Dungarvin, Inc., No. WC04-241 (W.C.C.A. Dec. 9, 2004). That said, we do not hold that excessive absenteeism may not be a proper basis for a finding of misconduct in workers’ compensation cases. Indeed, in Ranniger v. Brown Printing Co., slip op. (W.C.C.A. Sep. 23, 1998), this court affirmed a compensation judge’s finding that twenty-five unexcused absences and a history of being late for work on other occasions constituted misconduct under the statute. In the present case, the employer’s termination letter cited eight unexcused absences from work and one instance of the employee’s having left work early without excuse. In evaluating the employee’s alleged misconduct, the judge credited the employee’s testimony that trying to do the assigned work was painful for him, notwithstanding the employer’s encouragement that the employee identify and refrain from tasks that he did not feel capable of performing. Assessment of the credibility of a witness is the unique function of the trier of fact. See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988). Finally, it was not the judge’s finding that the employee was denied examination by a physician, it was his finding that the employee’s absenteeism was mitigated by his “inability to have a physician examine him instead of employer’s work-rite physician’s assistant” (underscoring added). The judge concluded that, “[g]iven that the employee’s work injury residuals had not improved much, if any, since he first saw . . . [PA] Kuehn, it was not unreasonable for the employee to insist on seeing a physician as the work restrictions placed by the physician’s assistant were not protecting his back sufficiently for him to obtain improvement in his symptoms.” Under the facts presented here, we cannot say that it was unreasonable for the judge to conclude that the employee’s substantial absences did not rise to the high level of egregiousness required to constitute misconduct under the Tilseth standard, and therefore we affirm that conclusion. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
At Finding 31, the compensation judge concluded that, except for the period January 26 through February 19, 2008, when the employee was suffering from a relapse in his chemical dependency, the employee conducted a reasonable job search at all times subsequent to his termination on November 29, 2007, “considering [his lack of] job search rehabilitation assistance and his July 30, 2007 work related low back condition.” Quoting from case law, the employer and insurer contend that, even if he was not fired for misconduct and thereby barred from receiving benefits, and “even where rehabilitation assistance is not provided, the employee must still make a reasonably diligent effort to find employment as best he can on his own” in order to receive temporary total disability benefits. Priglmeier v. Steller Concrete & Masonry, 65 W.C.D. 384, 400 (W.C.C.A. 2005), quoting Mattson v. State, Dept. of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992), rev’d on other grounds, 494 N.W.2d 884, 48 W.C.D. 84 (1993). The employee, they argue, failed to prove that he engaged in even a perfunctory, much less reasonably diligent, search for work during the benefits periods at issue. He offered no evidence of any job search logs and no evidence that he submitted any applications, they argue, and the twenty-one postings that he ran off at a job service office, apparently two days before the hearing, were, they argue further, primarily for jobs outside his restrictions and qualifications. Finally, they argue, “the court ignored unrefuted evidence that it was the QRC’s opinion that Employee was not cooperating with the rehabilitation plan.” We are not persuaded.
A diligent job search is “a search that is reasonable under all the facts and circumstances.” Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989), quoting Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988). Moreover, “Whether an injured employee makes a reasonably diligent search for suitable employment is a question of fact,” and a compensation judge’s decision in that regard “must be upheld unless manifestly contrary to the evidence.” Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). Without supporting contemporaneous documentation, the employee testified in this case that he continued to search for work even after termination of his employment and of his formal rehabilitation assistance. The compensation judge stated in his memorandum, with regard to the employee’s job search, as follows:
The employee’s testimony that he continued to look for work is corroborated in his contacts with the QRC as set forth in the rehabilitation records into March, 2008. The court finds the employee’s testimony as to his looking for work credible. His job search given his medical condition, work restrictions, and no job search assistance represented a reasonable diligent search for employment.
As we noted earlier, assessment of a witness's credibility is the unique function of the trier of fact, Brennan, 425 N.W.2d at 839-40, 41 W.C.D. at 82, and we will not question the judge’s conclusion that the employee was actually looking for work during the benefits periods at issue. Moreover, pursuant to that deference asserted in Hanmer and McClish, cited above, and our substantial evidence standard of review, we will not question the judge’s conclusion that that job search was reasonably diligent “under all the facts and circumstances” of this complex case. Bauer, 42 W.C.D. at 768, quoting Redgate, 421 N.W.2d at 734, 40 W.C.D. at 956; see Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Nor are we swayed from this conclusion by QRC Aldrich’s testimony, at the judge’s own questioning, that the employee may not have been optimally cooperating with the rehabilitation process at all times after his return from his treatment at Hazelden.
3. Refusal of a Light Duty Job Offer
At Finding 33, the compensation judge concluded that the employee was entitled to temporary total disability benefits for all periods claimed from November 5, 2007, through the date of the hearing except the period January 26 through February 19, 2008. Citing Minnesota Statutes section 176.101(1)(i) (2007), the employer and insurer assert that an employee may not reject an offer of suitable employment within his or her restrictions and still retain entitlement to temporary total disability benefits, contending that the employee in this case refused just such an offer of suitable employment when he failed to show up for work that was formally offered to him by the employer and that he had apparently accepted. We are not persuaded.
The employee in this case did not refuse the employer’s offer of work. Indeed, he accepted that offer in the presence of his QRC and he signed a form attesting to that acceptance. Moreover, more than once he did show up to perform this job, although, in ostensible pain and frustration with his work-related condition - - pain evidently credited by the compensation judge, he also often did not show up to perform it. We conclude that the employee’s failure sometimes to report for work at the offered job, sometimes even without calling in ahead of time, does not constitute a refusal, as such, of the offered employment. It was not unreasonable for the compensation judge to conclude that the employee accepted the job and made an attempt to perform it. Therefore we will not reverse the judge’s award of wage replacement benefits based on a refusal of a suitable job offer. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; cf. Olenchak v. Wenzel Plumbing & Heating, No. WC04-255 (W.C.C.A. Mar. 8, 2005) (the employee’s noncompliance with the employer’s attendance policy for four days was not a constructive refusal of a job offer under Minnesota Statutes section 176.101, subdivision 1(i)).
This case, in which the issues have overlapped with some complexity, is a difficult and troubling one, and there may well have been substantial evidence to support factual conclusions and an ultimate result contrary to that reached by the compensation judge. However, it is not the function of this court to assess whether substantial evidence might support factual conclusions contrary to those reached by the compensation judge; this court’s function on factual review is only to assess whether substantial evidence exists to support the conclusion actually reached by the judge. Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003); see also Ask v. Winona Health, No. WC08-156 (W.C.C.A. Oct. 29, 2008); Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (“whether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate”). Here, particularly in that so many of the material findings appear to be importantly dependent on the credibility of testifying witnesses whose demeanor was best assessed by the observing factfinder below, we cannot say that the compensation judge’s findings were unreasonable or that his related legal conclusions were improper. Therefore we affirm the judge’s decision in its entirety. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Brennan, 425 N.W.2d at 839-40, 41 W.C.D. at 82.
 The QRC’s notes indicate that the employee actually worked on November 27, 2007, but this is at odds with the employee’s time records.
 Del Dee Foods, Inc., v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986), and Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).