LEROY R. HINDERSHEID, Employee/Cross-Appellant, v. GRUSSING ROOFING, INC., and SFM MUT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
June 30, 2010
DISCONTINUANCE - MATTERS AT ISSUE; PRACTICE & PROCEDURE - EXPEDITED HEARING. The compensation judge erred in making a finding as to maximum medical improvement, during an expedited hearing on the employee’s objection to discontinuance, where that issue was not raised in the pleadings or by the parties.
REHABILITATION - COOPERATION. Given all the circumstances of the case, including the employee’s extremely poor reading skills and his physical condition, substantial evidence did not support the judge’s conclusion that the employee failed to cooperate with rehabilitation efforts for the period from August 27 through September 30, 2009.
Affirmed in part, reversed in part, and vacated in part.
Determined by: Wilson, J., Rykken, J., and Pederson, J.
Compensation Judge: James F. Cannon
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Cross-Appellant. Danielle T. Bird, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge’s findings that the employee is not at maximum medical improvement and that the employee cooperated with rehabilitation services continuing from October 1, 2009. The employee cross appeals from the judge’s finding that the employee failed to conduct a reasonable and diligent search for work from August 27, 2009, through September 30, 2009. We affirm in part, reverse in part, and vacate in part.
The employee sustained a work-related injury lifting a roll of roofing paper on December 11, 2008, while employed by Grussing Roofing, Inc. [the employer], as a working foreman. His job involved tearing off old roofs and tarring new ones, and he earned $1,300 per week for this work. The employer and its workers’ compensation insurer admitted liability for the injury and apparently paid wage loss benefits through August 25, 2009.
The employee has been diagnosed with multi-level degenerative disc disease, with a disc herniation at L4-5. In January of 2009, the employee was assigned by the employer and insurer to work with QRC Cama Kafka, who initially performed medical management. Job placement services began with placement specialist Mike Danielsen on May 20, 2009. Also in May of 2009, the parties entered into a Job Placement Plan and Agreement [JPPA]. At that time, the employee was limited to lifting up to 35 pounds on an occasional basis, pushing/pulling up to 25 pounds occasionally, and occasional bending/twisting, and he was to change positions every 15 minutes. It was noted that the employee did not have a GED. The JPPA called for the employee to spend 30-40 hours each week seeking full-time employment, to submit 2-4 applications per week, to make 5-10 initial contacts/cold calls each week, and to document all of those job search activities on job logs.
A functional capacity evaluation [FCE] was conducted on June 2-4, 2009. As a result, the employee’s lifting restrictions were modified to indicate that he was to lift, only seldom, 15 pounds from floor to waist, 20 pounds from waist to shoulder, and 15 pounds from shoulder to overhead. It was also recommended that the employee not return to roofing work. The employee complained of increased back pain after the FCE. QRC Kafka’s July 9, 2009, report indicated that the employee was participating in employment services as the employer was unable to take the employee back unless he was 100%.
The records of QRC Kafka and Mr. Danielsen indicate that the employee found a part-time job in late July 2009 with Befort Roofing, which had purchased the employer’s roofing business. The employee worked for Befort as a sales representative, earning $8.00 per hour, for approximately 3.5 weeks, until the work was no longer available.
The QRC’s progress report noted that the employee had undergone an epidural injection on September 1, 2009, and had been laid up in bed the next day.
On September 10, 2009, the employee took his GED assessment tests and reported to Mr. Danielsen that, although he had tested poorly, he had decided to pursue his GED and would take classes on a weekly basis to raise his basic academic skills. On September 28, 2009, Mr. Danielsen learned that the employee had tested at a 3rd grade 9 month level in reading and a 5th grade 1 month level in math. Apparently, candidates for a GED must be able to read at the 6th grade 9 month level in order to attempt the test.
On October 28, 2009, the employee began seasonal work as a truck driver at Genesis, a job he found on his own. The job was within his restrictions but ended with the season on or about November 20, 2009.
On August 28, 2009, the employer and insurer filed a notice of intention to discontinue benefits [NOID], alleging that the employee was not conducting a diligent job search as required by the JPPA. When the NOID went to an administrative conference, no evidence was offered from the QRC or job vendor. After an October 7, 2009, order on discontinuance, the employee filed an objection to discontinuance, alleging entitlement to temporary total disability benefits continuing from August 26, 2009.
The employee was seen by Dr. Charles Watts on November 16, 2009. Dr. Watts noted that physical therapy and epidural steroid injections had not improved the employee’s back and left leg pain. He recommended an EMG, which showed no evidence of nerve root irritation. Dr. Watts opined that the employee was not a candidate for surgery and recommended a consultation with a pain management doctor.
Dr. Thomas Raih conducted an independent medical examination on December 10, 2009. In his report, Dr. Raih agreed with the diagnosis of degenerative disc disease and a small disc herniation. Dr. Raih also indicated that he “basically agree[d] with the restrictions given by the [FCE]” but that, in his opinion, the employee could lift up to 30 pounds.
On December 15, 2009, Maureen Ziezulewicz issued an independent vocational evaluation report based on her interview of the employee, a review of medical and rehabilitation reports, and vocational research. She opined that the employee had made an increased effort to job search after his September 30, 2009, administrative conference, that the employee was employable, and that an ongoing job search was realistic.
The employee’s objection to discontinuance went to hearing and, in findings and order filed February 2, 2010, the compensation judge described the issue before him as:
Whether the employee cooperated with rehabilitation services by conducting a reasonable and diligent job search within his work restrictions, due to the work-related back injury of December 11, 2008, during the period from August 27, 2009 to October 27, 2009, and/or the period from November 22, 2009 to the present and continuing through the date of hearing, December 17, 2009, so as to be entitled to temporary total disability benefits during these time periods, or any portion of these time periods?
The judge went on to find that the employee had failed to establish that he had cooperated with rehabilitation services by conducting a reasonable and diligent job search from August 27, 2009, through September 30, 2009. The judge also found that the employee had made a reasonable and diligent job search from and after October 1, 2009, and that the employee had not reached maximum medical improvement [MMI] as of the hearing. Both parties appeal.
STANDARD OF REVIEW
“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).
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 (2008). 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 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).
Minn. Stat. § 176.238, subd. 6(d), provides that, in the context of an expedited hearing, “[t]he hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.” The employer contends that the judge improperly expanded the issues at hearing by making a decision on MMI. We agree.
The NOID that preceded the objection to discontinuance alleged that the employee had not made a reasonable and diligent search for work. MMI was not listed as a basis for discontinuance. Similarly, at hearing, no one raised MMI as an issue in opening statements. And, in his findings and order, the judge indicated that “the issue of maximum medical improvement (MMI) was not specifically raised as an issue at the hearing.”
The fact that the employer and insurer submitted a medical record that addressed MMI did not make MMI an issue at the hearing. In any event, the compensation judge made no reference to any medical reports or testimony but rather relied on an order on discontinuance filed on August 17, 2009, that was not at issue before the judge. In that it is clear that the parties were not aware that MMI would be addressed at that hearing, the compensation judge improperly expanded the issues. We therefore vacate his finding as to MMI.
2. Temporary Total Disability
The compensation judge found, with respect to the employee’s claim for temporary total disability benefits from August 27, 2009, through September 30, 2009, that
the employer and insurer noted that in August of 2009 there were 21 working days, and of those 21 days, the employee documented no job search on 14 days. Further, they noted that in September of 2009 there were 22 working days, and that the employee documented no job search on 13 days.
The judge went on to find, “based on these facts alone, for the period from August 27, 2009 through September 30, 2009, the employee has failed to meet his burden of proof to establish that he cooperated with rehabilitation services by conducting a reasonable and diligent job search.” (Emphasis added). The employee appeals, contending that the judge’s finding as to this period is unsupported by substantial evidence. We agree.
First, the judge relied on job search records from August 1 through August 26, 2009, a period that was not at issue before him. The employee’s job search efforts during the 26 days prior to the start of his claim are not determinative of the quality of his search for work for the period at issue.
Second, it appears that the judge did not make an independent review of the relevant records but rather relied solely on the employer and insurer’s representations as to the number of days that the employee was engaged in job search. The employee’s job logs from August 27 through September 30, 2009, reveal that, while there were several days that the employee reported no job search, he had doctors appointments in the Twin Cities on two of those days, GED testing on one of those days, and GED classes on five of those days. In addition, the QRC’s records reflect that the employee’s pain had “laid him up in bed” on September 2, 2009. And, Mr. Danielsen testified that the employee had told him that he did not write down every job contact, which Mr. Danielsen testified he had no reason to dispute. In this particular case, the employee’s failure to follow the requirements of the JPPA to the letter provides insufficient basis to deny temporary total disability benefits.
The diligence of a job search is to be determined after reviewing all the circumstances surrounding that search. Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987). In the instant case, the employee does not have a GED, he testified that he was in special education classes from the 7th through 10th grade, and he tested at the 3rd grade level for reading and 5th grade level for math. His entire work experience has been in heavy labor, and he worked for the employer for 20 years before his injury and had not had to look for work during that time.
Furthermore, once a rehabilitation plan has been developed, the issue becomes whether an employee is making a good faith effort to participate in that plan. Schreiner v. Alexander Construction Co., 48 W.C.D. 469 (W.C.C.A. 1993); Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989). The employee was working with a QRC and job vendor during the period in question. There was no written report from either rehabilitation provider opining that the employee was not cooperating during this period. While there were several notations by Mr. Danielson that he had reminded the employee to fill out job logs for every contact, and to be more complete in his reporting, Mr. Danielson never opined that the employee was not cooperating and testified that he would have notified the parties had he thought the employee was not making a reasonable and diligent effort.
The employee testified at hearing that, because of his poor reading skills, he is unable to read or understand a newspaper, the job leads that Mr. Danielsen sent to him, or correspondence from the QRC or his attorney. Both the employee and his wife testified that the employee relied on his wife to go over written materials with him. They both also testified that the employee’s wife completed job applications for the employee, drove him on his job search (since the employee cannot read a map), and completed the employee’s job logs (which the employee then copied onto the forms). The employee’s son helped him with online applications.
QRC Kafka was unaware of the extent of the employee’s inability to read or write until the day before the hearing. She testified that, knowing now the problems that the employee has with reading and writing, it was her opinion that the employee was making an effort to find work and fill in job logs and applications. She testified further that “he’s made a good effort with the cold calls and . . . seeking a job.” Mr. Danielsen also testified at hearing. It was his testimony that, recognizing the employee’s academic challenges, he believed that the employee had made a diligent search to find work. It was also his opinion that the employee was interested in finding employment.
Ms. Ziezulewicz, the employer and insurer’s vocational expert, testified that the employee had not done enough to find work. But she further explained that the employee and the people working with him had to do more, given today’s difficult labor market. She did not testify that the employee was not making a good faith effort to participate in his rehabilitation plan or that he failed to cooperate with rehabilitation efforts.
Given the employee’s reading and writing challenges, the efforts he has made to seek work with the help of his wife and son, and the lack of evidence that he has not cooperated with his QRC and placement vendor or their rehabilitation efforts, we reverse the judge’s finding that the employee failed to cooperate with rehabilitation efforts from August 27 through September 30, 2009. As a consequence, we also reverse the judge’s denial of temporary total disability benefits during this period.
The employer and insurer appeal from the judge’s finding that the employee cooperated with rehabilitation and made a reasonable and diligent search for work continuing from October 1, 2009, contending that substantial evidence does not support this finding. We are not persuaded.
As the employer and insurer acknowledge, a diligent job search is one that is reasonable under all the facts and circumstances peculiar to the case. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). As noted above, this employee had numerous challenges to a job search and yet persisted with the help of his wife and son in making cold calls, filling out applications, and following up on leads by the placement vendor. Again, the fact that the employee did not follow the JPPA to the letter is not a basis to deny temporary total disability benefits in this case. In addition to the evidence referenced above, the employee actually found work on his own and worked for 3.5 weeks during the period in question. This is additional evidence of his job search effort and, as noted by Ms. Ziezulewicz, it was “to his credit that he obtained these positions.”
Again, the primary question is whether the employee cooperated with rehabilitation efforts during this period. There is no testimony from the QRC appointed by the employer and insurer, or the job placement vendor appointed by that QRC, that the employee was not cooperating. Accordingly, the judge’s award of temporary total disability benefits from October 1, 2009, to the date of hearing is affirmed.
 The employer and insurer filed an additional NOID on the same date, seeking to discontinue temporary total disability benefits because the employee had returned to work on July 20, 2009.
 The employee lives in New Prague.
 Even Mr. Danielsen testified that he had not met his requirement of providing 3-5 job leads a week to the employee.
 While it was also his testimony that the employee could improve his job search, he believes that everyone can improve his or her job search.
 The employee had also found and worked another job prior to August 27, 2009.