MICHAEL GARNER, Employee, v. MOBILE WASHER and CINCINNATI INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 4, 2012
TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET. Where recommended medical treatment and rehabilitation were prevented by the employee’s incarceration, incarceration represented a withdrawal from the labor market supporting the discontinuance of temporary total disability benefits.
Determined by: Stofferahn, J., .Wilson, J., and Milun, C.J.
Compensation Judge: Penny D. Johnson
Attorneys: Karl F. Von Reuter, Minneapolis, MN, for the Respondent. Thomas J. Misurek and Timothy Crom, Jardine, Logan & O’Brien, Lake Elmo, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer petitioned to discontinue temporary total disability benefits, alleging that the employee’s incarceration represented a removal from the labor market. The compensation judge denied the petition, and the employer and insurer have appealed the compensation judge’s decision. We reverse.
Michael Garner sustained an injury to his right ankle on June 3, 2010, when he fell from a ladder while working for Mobile Washer. The employer and insurer admitted liability for the injury and began payment of medical expenses and temporary total disability. The employee has had a number of surgeries as a result of his work injury. The most recent surgery was on October 31, 2011, and was a repair of a previous fusion with a bone graft.
Mr. Garner was imprisoned at Lino Lakes Correctional Center as of July 1, 2011, as the result of a felony conviction. He was still incarcerated at Lino Lakes at the time of the hearing, April 3, 2012, and he testified that he anticipated being released sometime in July 2012.
The employee’s surgery in October 2011 was at Regions Hospital in St. Paul. He was transported to the hospital by the Minnesota Department of Corrections and after his surgery, placed in a transitional care unit at the Oak Park Heights Correctional Facility. He returned to Lino Lakes in November 2011. His medical treatment since then has been provided by the Corrections Department at the Lino Lakes facility and has consisted of visits with physicians, physical therapy, and participation in a chronic pain program.
There is no discussion in the medical records as to whether or not the employee is capable of any type of employment activity. The most recent medical record in evidence at the hearing was from a doctor visit on February 23, 2012. At that time, Dr. James Wischer assessed post-traumatic arthritis. He recommended a referral to a podiatrist and an MRI of the hip but stated that this would be “accessible to him in July when he gets out of prison.” In the meantime, the employee was continued on pain medication.
The employee has a qualified rehabilitation consultant (QRC), Michael Kahnke, who testified at the hearing. He testified that he had not been allowed to meet with the employee since his surgery, had not been allowed to attend any post-op medical appointments or communicate with the doctors the employee had seen, had not had access to the medical records from Lino Lakes, and had not been able to proceed further with developing the employee’s potential for returning to work because of the lack of information. He also testified that he had not seen any medical records from the doctors in Corrections releasing the employee to return to work.
The employer and insurer filed a petition to discontinue benefits in February 2012 that was heard by Compensation Judge Penny Johnson on April 3, 2012. The employer and insurer claimed that temporary total disability benefits should be discontinued because the employee’s incarceration was a removal from the labor market which rendered him ineligible for benefits.
In her findings and order of April 16, 2012, the compensation judge denied the petition, concluding that although the employee had been removed from the labor market, the removal was “primarily due to his medical condition caused by the work injury, and only secondarily by his incarceration.” (Finding 13.) The employer and insurer appeal the compensation judge’s decision.
Temporary total disability benefits are to cease if the employee has withdrawn from the labor market. Minn. Stat. § 176.101, subd. 1(f). The question here is whether the employee’s incarceration constitutes a withdrawal from the labor market so as to support a discontinuance of temporary total disability compensation. The employee argues that because he had not been released to return to work at the time of his imprisonment, his absence from the labor market was due to his work injury and his ongoing temporary total disability was not affected by his incarceration. We are not persuaded.
An injured employee’s failure to cooperate with recommended reasonable medical treatment may result in the discontinuance of temporary total disability benefits. Dotolo v. FMC Corp., 375 N.W.2d 25, 38 W.C.D. 205 (Minn. 1985); Majerus v. Eagan Fabrication, slip op. (W.C.C.A. Jan. 27, 2000). An employee’s failure to cooperate with rehabilitation may result in the discontinuance of temporary total disability benefits. Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989); Bolder v. State, Dep’t of Natural Resources, 63 W.C.D. 634 (W.C.C.A. 2003). An employee’s refusal to comply with an employer’s request for an independent medical examination (IME) may result in compensation being suspended while the refusal continues. Minn. Stat. § 176.155, subd. 3, Hove v. North Mem’l Med. Ctr., slip op. (W.C.C.A. May 9, 1995).
At the last medical appointment before the hearing, the physician seeing the employee recommended a referral to a podiatrist and an MRI scan. The employee was not able to follow through with that recommended medical treatment because of his imprisonment. The employee’s QRC testified in this case that he was unable to meet with doctors at Lino Lakes, unable to meet with the employee, and unable to begin preparation of a rehabilitation plan because of the employee’s incarceration. Counsel for the employer and insurer argued at the outset of the hearing that he was unable to proceed with an IME because of the employee’s imprisonment. Although the employer and insurer had not attempted to schedule an IME, it is clear that such an attempt would have been an exercise in futility.
This court previously considered this issue in Hutchins v. Champion Int’l Corp., slip op. (W.C.C.A. April 20, 1996). The employee argues that Hutchins does not apply here because in that case the employee had been released to return to work at the time of his incarceration. The compensation judge had denied the employee’s claim for wage loss benefits because he was not able to engage in job search due to his imprisonment but this court did not decide the case on that basis. The court noted the compensation judge’s basis for her decision and stated that her decision was “probably affirmable on that basis.” The court went on to say that “We find, however, that the most controlling factor in the present case is the principle expressly asserted by the judge in her memorandum, ‘that the employee’s incarceration represents a withdrawal from the labor market.’”
The court further commented that “worker’s compensation benefits for temporary total and temporary partial disability have always been intended and construable solely as compensation for wages lost consequent to an injury - - wages, that is, that the employee would otherwise be earning but for his work-related injury.” An
employee living outside the labor market is not in a position to assert entitlement to temporary total or temporary partial benefits as replacement for his lost wages, since, so separated from the labor market, he is not in any position but for his injury to earn any wages warranting replacement. Thus, generally speaking, the degree of an employee’s physical incapacity during the period of an incarceration is technically an issue relevant only to his claim to benefits for permanent partial disability, not to any claim for temporary benefits. In effect, incarceration for a crime is analogous to withdrawal from the labor market, albeit arguably an involuntary rather than a voluntary withdrawal. (Emphasis in original.)
The employee contends that Hutchins was modified by this court in our decision in Meyer v. The Pillsbury Co., No. WC08-169 (W.C.C.A. Sept. 15, 2008). We disagree. In that case there was no issue of withdrawal from the labor market. The employee was in the “reintegration portion” of civil commitment at St. Peter Regional Treatment Center, was working at a job at the treatment center with an outside employer, and was earning a wage only slightly less than his wage on the date of injury. He was taken off work for two surgeries and was not allowed to return to his job for three months. The only issue for this court was whether the employee’s employment was at a “suitable job” so as to allow the application of Minn. Stat. § 176.101, subd. 3(j). We reviewed case law on the application of that statute and concluded that under the specific facts of that case, benefits under this provision were available to the employee.
We find no basis to reverse well-established case law and conclude that the employee has withdrawn from the labor market by reason of his incarceration. The employer and insurer are entitled to discontinue temporary total disability benefits and the compensation judge’s denial of the petition to discontinue temporary total disability benefits is reversed.
 In his opening statement, counsel for the employer and insurer stated, “It’s practically, and I say in a practical sense, literally impossible to have Mr. Garner removed for an IME. IME doctors are not going to go to the Lino Lakes facility to conduct the exam. There are so many practical limitations that interfere with the normal process of the worker’s compensation claim.”
 Minn. Stat. § 176.101, subd. 3(j) was repealed in 1995.
 We also note that there is scant evidence that the employee is, in fact, “medically unable to work.” That conclusion is apparently based on the lack of a formal release to return to work by the doctors the employee has seen from the Corrections Department at Lino Lakes. We see no reason why one of these doctors would release Mr. Garner to return to work when it is clear that he would not be able to return to work because of his imprisonment.