GAROLD S. KOSTRZEWSKI, Employee, v. BRYANT INV. CO. d/b/a TYCON CO., INC., and STAR INS. CO./MEADOWBROOK INS. GROUP, Employer-Insurer/Appellants, and NEUROLOGICAL ASSOCS. OF ST. PAUL, HEALTHEAST ST. JOHN’S & MED. IMAGING, HEALTHEAST RICE ST. CLINIC, BLUE CROSS & BLUE SHIELD OF MINN. & BLUE PLUS, ST. PAUL MIDWEST RADIOLOGY, PROFESSIONAL ASSOCS. OF REHAB, INC., and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 25, 2009
EVIDENCE - EXPERT MEDICAL OPINION; REHABILITATION - ELIGIBILITY. Where the treating medical expert whose opinion was adopted by the judge was at least as aware of the employee's medical history and studies as was the adverse examiner, and where neither the employee's QRC intern's opinion nor the judge's adoption of that opinion was unreasonable, the compensation judge's conclusion as to the nature of the employee's injury and his entitlement to rehabilitation assistance was not clearly erroneous and unsupported by substantial evidence.
JOB SEARCH; REHABILITATION - COOPERATION; TEMPORARY TOTAL DISABILITY. Where the employee's QRC intern had testified that the employee had followed up on job leads provided to him by his placement specialist, that he had otherwise cooperated with rehabilitation assistance, and that in her opinion he had conducted a reasonably diligent job search, the compensation judge's decision and award of temporary benefits in accordance with that opinion was not clearly erroneous and unsupported by substantial evidence.
TERMINATION OF EMPLOYMENT - VOLUNTARY TERMINATION; TERMINATION OF EMPLOYMENT - MISCONDUCT. Where the employee exchanged several communications with the employer concerning his medical status, where there appeared to have been some ambiguity in the mind of both the employee and his doctor as to the nature of the “documentation” of back-to-work permission being required by the employer, and where the judge credited the employee's testimony that he had wanted to return to his job, the judge's conclusion that the employee neither voluntarily terminated his employment nor was terminated for cause was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Harold W. Schultz, II
Attorneys: Michelle Barone Osterbauer, Joseph J. Osterbauer, and Kirsten M. Tate, Osterbauer Law Firm, Minneapolis, MN, for the Respondent. Kristen Anderson Ryan and Stacey A. Molde, Johnson & Condon, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's awards of temporary total disability, rehabilitation, and medical benefits. We affirm.
Garold Kostrzewski has a high school graduate equivalent diploma [GED], has taken a one-year course in auto parts management, and is a certified pool manager. He has also been licensed as a boiler operator, but his certification for that license has expired. He has a history of low back and left-side pain stemming back to April 23, 2004, on which date he was seen by Dr. Cynthia Frane regarding complaints of low back pain with symptoms radiating down his left leg to mid calf, with intermittent shooting, stabbing pain and a tingling sensation. Dr. Frane diagnosed left sciatica and recommended stretching and use of nonsteroidals. About three years later, on March 6, 2007, Mr. Kostrzewski was examined by Dr. Bruce Lippink regarding complaints of pain that he had been having intermittently for about a month and a half, which started in his left shoulder blade and radiated down to his left arm and all the way down the left side of his body, sometimes all the way down into his left leg. Dr. Lippink diagnosed cervicalgia and recommended stretching exercises. On October 10, 2007, he saw Dr. Peter Olson, in part complaining of discomfort along the left side of his neck and into his low back, with radiation down his left leg, identifying no mode of injury. Dr. Olson diagnosed lumbar strain and recommended an anti-inflammatory and, if Mr. Kostrzewski saw no improvement, perhaps Medrol Dosepak.
On December 26, 2007, Mr. Kostrzewski [the employee] injured his back when he fell while descending some outdoor steps and landed flat on his back in the course of his work as an apartment complex maintenance supervisor with Bryant Investment Company/Tycon Company [the employer]. The employee had no symptoms immediately after his fall, but later that evening he experienced pain in the lower center part of his back and upward. He reported for work the next morning, reported the incident to the employer, and continued working for the employer without restrictions until April of 2008. The employee was fifty-one years old on December 26, 2007, and was earning a weekly wage of $1,121.98. The employer and insurer have admitted the employee's accident on the date alleged, but they have denied liability for all claimed benefits.
On April 11, 2008, the employee saw Dr. Olson again for a routine cholesterol examination, mentioning in the course of that examination some pain that he was continuing to experience in his lower back, still identifying no work injury. Dr. Olson ordered an x-ray, which was negative except for revealing “evidence of mild osteophytic changes in the lumbar spine and minimal lower lumbar facet arthropathy.” Dr. Olson prescribed physical therapy for a lumbar strain and suggested that the employee get into an exercise and stretching program, finding no radicular component. The doctor ordered no restrictions, nor did the employee request any.
The employee returned to see Dr. Olson on May 2, 2008, on which date he did request restrictions, having experienced continuing pain down his left leg, sometimes sharp, which was aggravated by lifting. Noting that “[t]he initial injury was December 26, 2007,” at work, when the employee “was walking down some steps with a boiler motor in his hand and fell and hit the pavement, hit his back on some steps,” Dr. Olson diagnosed lumbar strain with left radicular symptoms, restricted the employee from lifting over twenty pounds for three weeks, and referred the employee for an MRI scan of his lumbar spine. The scan was conducted on May 6, 2008, and was read as normal except for a small disc protrusion on the left at L5-S1, without impingement on the left L5 nerve root, and a small disc protrusion on the right at L4-5, which abutted the right L4 nerve root. The employee saw Dr. Olson again on May 16, 2008, complaining not only of continuing pain down the left buttocks and leg to the foot but now also of numbness and tingling and pain in his left arm, which he said had been going on for three months. Dr. Olson renewed the employee's restriction against lifting over twenty pounds and added a restriction against working over forty hours a week, scheduling a recheck in four weeks and contemplating referral for an MRI scan of the employee's cervical spine.
The employee saw Dr. Olson again on June 10, 2008, on which date Dr. Olson diagnosed cervical strain and lumbar strain, “[b]oth . . . dating back to his injury, now with some ongoing radicular component.” The doctor ordered a cervical MRI scan, which was conducted on that same date and was read to reveal mild degenerative changes with a mild annular bulge at C4-5, together with a small posterior disc protrusion at C6-7, but expressly no central canal stenosis and no evidence of nerve root impingement. Noting that the employee's MRI scans “have not shown significant impingement correlating with the left-sided leg and arm symptoms,” Dr. Olson recommended Physicians Neck and Back “for strengthening purposes since we do not have any discrete area for injections for epidural steroid,” anticipating the possible necessity of an EMG should numbness symptoms persist. He gave the employee a handwritten disability slip, expressly providing that “[h]e should be off work thr[ough] 6/13/08. Then return and continue same restrictions - - no lifting [more than] 20 (twenty) # no [more than] 40 hrs/wk.” The employee presented the slip to the employer but did not go back to work on Monday June 16, 2008, evidently on the advice of his supervisor that he needed a follow-up return-to-work slip from his doctor. He evidently attempted to contact his doctor but was informed that his doctor was on vacation for a week. On June 24, 2008, he returned to see Dr. Olson, with continuing complaints of symptoms in his neck and left arm and low back and left leg. Dr. Olson ordered an EMG of the left upper extremity and the left lower extremity, meanwhile continuing the employee's same work restrictions for two weeks, with a recheck scheduled for July 8, 2008, issuing him a disability slip to that effect, which was forwarded to the employer.
The following day, June 25, 2008, at 3:00 p.m., Alan Menning, the employer's vice president and controller, evidently called and talked with the employee, subsequently documenting that the “Doctor's slip does not state if [the employee] can return to work or if [the employee] is to be out of work. [The employee] said that he will call the Doctor and get a new Doctor's slip.” The employee evidently faxed to the employer a handwritten disability slip signed by Dr. Olson and dated June 26, 2008, which stated, “Patient had injury at work 12/26/07 and has ongoing lumbar and cervical pain secondary to the injury.” On June 27, 2008, Mr. Menning evidently called the employee's personal cell phone three times and left messages for the employee to call Mr. Menning. Then, on that same date, he wrote to the employee, documenting the issue's history and the employer's position that even the June 24 doctor's slip “contains [the employee's] restrictions but does not state if or when [the employee] can return to work.” Mr. Menning referenced in his letter certain sections of the employer's Employee Manual indicating that it was the employee's responsibility to keep the employer informed on such issues and to provide requested documentation. In his letter, Mr. Menning indicated that the employee would not be permitted to return to work without Mr. Menning's receipt of a doctor's note addressing that issue by 9:00 a.m. July 3, 2008, and that the employee's failure to provide that documentation by that time would result in the employee's termination. The employee did not reply.
On July 2, 2008, the employee underwent the ordered upper and lower extremity EMGs, which together were read to be “a normal nerve conduction and EMG study of the left upper and lower extremity.” By letter dated the following day, July 3, 2008, evidently mailed at 9:30 that morning, Mr. Menning wrote to the employee, explaining that he was being terminated for being out of contact since June 24, 2008, and for not furnishing to the employer the documentation it had requested by 9:00 a.m. on that date. On that same date, evidently ten minutes after Mr. Menning mailed his letter, the employee appeared on the employer's premises and turned in his keys and other property belonging to the employer.
The employee saw Dr. Olson again five days later, on July 8, 2008, continuing to complain of low back and neck symptoms, with referred pain down the left leg and left arm. Noting that the employee's EMGs had been negative and his MRIs had revealed no definitive nerve root involvement, Dr. Olson diagnosed chronic lumbar and cervical strain with left-side symptoms and referred the employee “for some more labor-intensive therapy” with Physicians Neck and Back Clinic. In his notes on that date, Dr. Olson stated, “I am going to continue with same restrictions. The [employee] states that he was let go from work because he could not go back off with his restrictions, but regardless, I think he should continue with these restrictions.” On July 13, 2008, the employee began receiving unemployment compensation.
On July 30, 2008, the employee filed a claim petition, alleging entitlement to temporary total disability compensation continuing from June 9, 2008, together with other benefits, consequent to a work injury on December 26, 2007. In their answer, the employer and insurer contended that the employee's injury on that date was at most a temporary one, that there has been a superseding intervening injury, that a preexisting condition is responsible for any continuing disability, that the employee voluntarily terminated his employment with the employer or, in the alternative, was terminated for cause, that the nature and extent of the injury are not what the employee has alleged, and that the employee failed to conduct a sufficiently diligent job search to prove his entitlement to benefits.
About the end of July 2008, the employee began receiving rehabilitation assistance from QRC intern Gayle Doverspike, with oversight by QRC Leon Olson. On July 31, 2008, Ms. Doverspike contacted the employer and was informed by Mr. Menning that the employee was no longer employed by the employer and apparently that he would not be considered for re-employment. On August 18, 2008, Ms. Doverspike accompanied the employee to his examination by Dr. Olson, who, according to her report on that date, indicated to her “that at the present time, [he was] unsure of the exact cause of [the employee's] symptoms” and that he had recommended that the employee undergo physical therapy at Physicians Neck and Back and obtain a second opinion at Summit Orthopedics. The doctor had continued on that date the employee's restrictions against lifting more than twenty pounds and against working more than forty hours a week. The employee had not followed up on the recommendations of physical therapy and a second opinion, evidently for lack of insurance coverage.
On August 22, 2008, the employee and his QRC and QRC intern executed a Job Placement Plan and Agreement [JPPA] that called in part for a full-time job search that included, per week, (1) four to six in-person contacts with prospective employers, (2) six to eight phone contacts, (3) three to four mail/fax/email contacts, and (4) seven to nine recontacts - - for a total of at least twenty contacts and recontacts in all categories per week. The employee was then referred to placement specialist Julie Westerman, who evidently conducted vocational testing and assisted the employee in developing a resume and cover letters and other aspects of his search for employment. The employee was to maintain job search logs as part of his job search activities, but, according to logs in evidence, he logged only about seven contacts in all categories by the end of August 2008 and a total of only about twenty-six more in all categories in the month of September 2008, a total of about forty in all categories in the month of October 2008, and, eventually, a total of about twenty-nine in the month of November 2008 and a total of about twenty in the month of December 2008. In her monthly reports, Ms. Doverspike suggested that the employee's relatively few employment contacts each week were attributable at least in part to his having no computer skills and so being limited to mostly to in-person and telephone contacts.
On October 29, 2008, the employee was seen again in follow-up by Dr. Olson, who noted in his treatment notes that the employee had come in, in part,
to update his treatment plan and discuss restrictions. He also needed a letter regarding his injury specifically whether we feel that the work injury is a substantial contributing factor to his current disability, the diagnosis and treatment plan and also whether the employee should have restrictions on his work activity and the nature of those restrictions.
Dr. Olson wrote a letter on that same date “To Whom It May Concern,” in which he opined that the employee's injury of December 26, 2007, “was a substantial contributing factor [in] his current ongoing disability in his cervical, thoracic, and lumbar spine.” Dr. Olson diagnosed (1) left cervical strain, persisting with referred left arm pain, (2) left lumbar strain persisting with referred left leg pain, and (3) thoracic strain, for which he recommended continued use of anti-inflammatories and home exercises. He indicated that he had recommended that the employee get a second opinion at Summit Ortho and had “strongly” recommended that he see “a more vigorous physical therapist” such as at the Physician Neck and Back Clinic but that the employee had been unable to afford either. He reiterated that the employee's restrictions included no lifting of over twenty pounds and no more than forty hours of work a week, “which” he noted in his treatment notes, “are the same ongoing restrictions.”
On December 1, 2008, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Wicklund. In his report on December 11, 2008, Dr. Wicklund diagnosed (1) subjective neck pain with no objective physical findings to support a disc herniation at C6-7, (2) subjective low back pain, and (3) MRI evidence of disc herniations at L4-5 on the right and at L5-S1 on the left, both neurologically silent. Dr. Wicklund did not believe that the employee's work activities around December 26, 2007, were a substantial contributing factor in any problems observed on the employee's cervical or lumbar MRI scans, nor, he concluded, was there any “firm correlation between [the employee's current] physical examination and the findings on” those scans. Any injury to the employee consequent to his accident at work on December 26, 2007, he concluded further, would have resolved within three months following the injury, at which time the employee would have reached maximum medical improvement and would no longer have required any restrictions.
On December 24, 2008, Dr. Olson wrote another letter “To Whom It May Concern,” in which he indicated that he had reviewed Dr. Wicklund's report and had not changed his mind with regard to the significance of the employee's injuries and pain. He explained that he had found the employee's symptoms prior to the alleged work injury to have been intermittent but that now they were persistent problems, hence the need for evaluations with MRI scans.
The matter came on for hearing on January 8, 2009. Issues at hearing included whether or not the employee was entitled to wage loss, rehabilitation, and medical benefits and whether or not the intervenors were entitled to reimbursement for benefits paid to or services rendered to the employee. At hearing, the employee testified that he had never had any disciplinary issues with the employer prior to his injury and that he had never been reprimanded for any performance-related issues. He testified that he presented Dr. Olson's June 10, 2008, disability slip to the employer but that he did not return to work on Monday June 16, 2008, as that slip authorized, because he had been told over the phone by his supervisor, both on the previous Friday, June 13, and on that Monday morning, June 16, that he would need a return-to-work slip from his doctor, even though the June 10 disability slip that had restricted him from working for specifically three days had expressly provided already that he was to return to work on June 16. He testified that he may not have responded to the employer's letter of June 27, 2008, threatening termination if the employee did not send in an updated disability slip, “because it was looking to me like they didn't want me to come back.” He testified further that he had wanted to keep his job and that he believed that he had complied with their demands. With regard to his job search, the employee testified that he had searched for jobs two or three hours every other day, had made phone calls to potential employers, and had had a couple of interviews.
QRC intern Doverspike also testified at hearing. She testified in part that her finding the employee to be a qualified employee for rehabilitation purposes was based on the fact that she had spoken with and been informed by Mr. Menning that the employee was no longer employed by or eligible for employment with the employer, together with the fact that the employee continued to have restrictions limiting his ability to return to full-duty work. She testified also that her placement specialist had provided the employee with job leads, that the employee had followed up on those leads, and that in her opinion the employee had conducted a reasonably diligent job search, particularly in light of his lack of computer knowledge and his lack of a home computer. She testified that she had attended the employee's October 29, 2008, appointment with Dr. Olson and that the employee's failure to follow up with the recommended physical therapy and second opinion was due to the employee's lack of insurance. On cross-examination, Ms. Doverspike conceded that the employee “could improve” in his job search, particularly with regard to his recontacts. She conceded also that two hours of job search activities a day is “a little low” in searching for full-time employment, and she added, “Right” when asked, “So that's not reasonable . . . ?”
By findings and order filed February 5, 2009, the compensation judge concluded, in reliance on the opinions of Dr. Olson and crediting the employee's testimony, that the employee's ongoing neck and low back conditions were causally related to his work-related incident at the employer on December 26, 2007. On that threshold conclusion the judge concluded further that the employee's job search, cooperation with rehabilitation efforts, and medical support were all sufficient to entitle the employee to temporary total disability, medical, and rehabilitation benefits and that the employee had not voluntarily terminated his employment with the employer or been terminated for cause. With regard to the employee's job search, the judge stated in his memorandum in part that, although “the employee was not very aggressive in pursuing medical treatment and even attempting to save his job,” some of the requirements for which the judge found unreasonable, [t]he events of June and early July 2008, certainly do not add up to the employee's disqualification for wage loss benefits,” and “[h]e did not voluntarily terminate his employment and he did not withdraw from the labor market.” “[U]nder the circumstances of this case,” the judge concluded at Finding 52, “[the employee] did conduct a diligent job search effort beginning in July 2008.” On those conclusions, the judge ordered payment of all benefits claimed by the employee and of reimbursement of all of the intervenors' claims, the rehabilitation intervenor's reimbursement contingent on certain clarification and justification. 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.
1. Nature of Injury, Expert Medical Opinion, Rehabilitation Assistance, and Medical Treatment
At Findings 46, 47, and 48, the compensation judge concluded that the employee had sustained work-related lumbar and cervical strains as a result of his accident on the employer's premises on December 26, 2007, that he was subject to continuing restrictions as a result of those injuries, and that the medical treatment rendered him in treatment of those injuries had been reasonable and necessary in the attempt to cure and relieve him of them. At the beginning of his memorandum, the judge explained that “[f]or the most part this case hinges on what medical opinion to accept,” adding shortly thereafter that “[t]he employee gave credible testimony.” The employer and insurer contend that these conclusions of the judge are unsupported by substantial evidence, arguing in part that the judge erred in adopting the opinion of Dr. Olson over that of Dr. Wicklund, contending that “the only reasonable conclusion is that the employee's injury was a temporary strain that resolved within 3 months.” They argue in part that the employee's symptoms are the same as those he complained of at least twice prior to his work injury, that the employee required no medical treatment or restrictions for four months following the injury, and that his MRI and EMG scans revealed no spinal or neurological findings corresponding to his subjective complaints. Further, they contend that the employee is not a “qualified employee” for rehabilitation assistance under Minnesota Rules 5220.0130, subpart 1, and 5220.0100, subpart 22, in that he fails to meet the first element of the standard established in the latter of these rules - - that the employee, substantially consequent to his injury, “is permanently precluded or is likely to be permanently precluded from engaging in [his] usual and customary occupation or from engaging in the job that [he] held at the time of injury.” Minn. R. 5220.0100, subp. 22. The judge made no finding on the issue, they note, and “[i]t is undisputed that the employee could return to his pre-injury job had he complied with the employer's request to submit medical documentation.” We are not persuaded.
Dr. Olson was aware of the condition of the employee's spine over a month prior to the work injury here at issue and over the course of several months after the injury. Thus he had a particularly good vantage point from which to evaluate any causal connection between the injury and the work accident as described to him, together with the ongoing consequences of that injury. We acknowledge the employee's pre-injury history of back problems, his lack of related physical restriction or treatment for several months following his injury, the unremarkable and noncorroborative nature of the radiological studies in evidence, and the fact that a treating doctor's opinion is generally not entitled to any more credibility than an adverse examiner's. There is, however, no reason to presume that the compensation judge did not also contemplate the evidence carefully, particularly given his express conclusion that “this case hinges on what medical opinion to accept” and his express statement that “[t]his compensation judge accepts the opinions of Dr. Olson.” This court has a well established precedent of deferring to the compensation judge's choice among medical experts when the facts upon which the chosen expert's opinion is based are not unsupported by substantial evidence. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (“[T]he trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence.”). Concluding that Dr. Olson was at least as aware of the employee's medical history and studies as was Dr. Wicklund, we will not reverse any award of the judge based on the judge's adoption of Dr. Olson's opinion.
With regard to the employee's entitlement to rehabilitation services, we note initially that the employee did not commence formal receipt of rehabilitation assistance until after QRC intern Doverspike was personally informed by Mr. Menning that the employee's job with the employer was no longer available to him. Given that by that time the employee was already also being treated for what was beginning to appear to be a fairly chronic and work-related condition, we cannot say that it was unreasonable for QRC intern Doverspike to conclude that the employee was, “because of the effects of a work-related injury” . . . likely to be permanently precluded . . . from engaging in the job that the employee held at the time of injury.” Minn. R. 5220.0100, subp. 22. Nor was it unreasonable for the compensation judge to rely on that conclusion in reaching implicitly the same conclusion.
Because they were not unreasonable, we affirm the judge's express and implicit conclusions as to the nature of the employee's work injury, his entitlement to rehabilitation assistance, and his entitlement to payment of related medical expenses. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. Job Search, Cooperation with Rehabilitation, and Temporary Total Disability
In awarding the employee the benefits that he had claimed, the compensation judge concluded, at Findings 52 and 53, that “the employee has cooperated with rehabilitation services provided to him and, under the circumstances of this case, did conduct a diligent job search effort beginning in July 2008,” sufficient to entitle him to temporary total disability benefits, given his injury. This was the judge's conclusion notwithstanding his advice in his memorandum, that the employee “must make changes in his approach to employment soon” and should “step up his efforts to find employment within his restrictions.” The employer and insurer contend that the judge's finding of a reasonably diligent job search “under the circumstances” is unsupported by substantial evidence, arguing that the employee fell far short of the parameters for employer contacts that he had committed to in his JPPA and that even the employee's QRC intern acknowledged that the employee “could have improved” in his follow-up with potential employers and that searching for work only two hours a day was “a little low,” acquiescing to the cross-examiner's characterization of it as “not reasonable.” We are not persuaded.
Notwithstanding her concessions under cross-examination, the employee's QRC intern testified clearly that the employee had followed up on job leads provided to him by his placement specialist, that he had otherwise cooperated with rehabilitation assistance, and that in her opinion he had conducted a reasonably diligent job search, particularly in light of his lack of computer knowledge and his lack of a home computer. Moreover, we note that the employee was apparently enrolled in classes at a local library to gain him the computer literacy that he lacked and that might be presumed of the majority of persons in the job market today. We acknowledge that the employee's total number of employer contacts comports poorly with the number recommended in his original JPPA. However, the person in position to most closely assess the quality of the employee's job search efforts was the employee's QRC intern, she testified that in her opinion those efforts were at least reasonably diligent, and the employer and insurer have not offered into evidence the testimony or opinions of any other rehabilitation expert. Under these facts, and given the compensation judge's unique position for assessing the credibility of witnesses, we cannot conclude that it was unreasonable for the compensation judge to conclude that the employee, in cooperation with his QRC intern, conducted a job search that was sufficiently diligent to entitle him to the wage replacement and medical benefits that are here at issue consequent to his work injury. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).
3. Voluntary Termination or Termination for Cause
At Findings 50 and 51, the compensation judge concluded that the employee had neither voluntarily terminated his own employment nor been terminated for cause. The employer and insurer contend that substantial evidence does not support the judge's conclusion as to voluntary termination, and, apparently ignoring Finding 51, assert that the judge made no specific findings regarding termination for cause. They argue that the employer's employee manual provides that unexplained absence of more than three days constitutes grounds for termination and that, by not supplying the requested “documentation” from his doctor that he could return to work, after repeated phone and written contacts with the employer, the employee left the job voluntarily or, in the alternative, was terminated for cause. We are not persuaded.
The compensation judge's conclusion that the employee neither voluntarily terminated his employment nor was terminated for cause is, as we interpret it, essentially a finding that the employee made a reasonably good-faith effort both to keep his job and to find relief from his work injury. We acknowledge that this is a close issue, given especially the employee's turning in of his equipment apparently in response to the employer's letter of June 27, 2008, threatening termination. But, until very near the end of his employment, the employee exchanged several communications with the employer over his status, several times faxing over to it disability slips from his doctor, albeit ones that evidently did not satisfy the employer's expectations. There appears to have been, for whatever reason, some ambiguity in the mind of Dr. Olson as to what sort of “documentation” was being required of him, and, by the judge's conclusion that the employee was a credible witness, we can only infer that the compensation judge found the employee himself at least frustrated and perhaps confused on the requirement as he presented it to his doctor. Our conclusion here is supported by the judge's statement in his memorandum that “[s]ome of what was required was unreasonable.” That conclusion of the judge was itself not unreasonable, given the fact that Dr. Olson's June 10, 2008, disability slip in the employer's own records specifically provides that the employee should return to work after three days' rest and his June 24, 2008, disability slip, also in the employer's records renews the old restrictions. It would not be unreasonable to presume that those dated disability slips identifying clear and current restrictions, from a doctor who understood the nature of the employee's work, implied current permission to return to that work after June 13, 2008, although not expressly specifying new return to work permission. Given these facts, and given the employee's credited testimony that he wanted to return to his job, we conclude that it was not unreasonable for the compensation judge to find that the employee did not voluntarily quit his job and that no fair “cause” existed for the employer to terminate the employee's employment. Therefore we affirm those findings. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Brennan, 425 N.W.2d at 839-40, 41 W.C.D. at 82 (Minn. 1988).