BRENDA PARSON, Employee, v. BUREAU OF ENGRAVING, INC., SELF-INSURED/ALEXSIS, INC./RSKCo., Employer/Appellant.

 

WORKERS' COMPENSATION COURT OF APPEALS

OCTOBER 26, 2000

 

HEADNOTES

 

JOB OFFER - REFUSAL; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(i).  Substantial evidence, including the employee=s testimony, supported the compensation judge=s finding that the employee did not unreasonably refuse suitable work offered by the employer.

 

Affirmed.

 

Determined by Pederson, J., Wilson, J., and Wheeler, C.J.

Compensation Judge:  William R. Johnson

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The self-insured employer appeals from the compensation judge=s finding that the employee did not unreasonably refuse suitable employment offered by the employer.  We affirm.

 

BACKGROUND

 

The employee, Brenda Parson, began working for the employer, Bureau of Engraving, Inc., in November 1976.  She initially worked on the employer=s second shift.  In 1978, following a period off work for the birth of a son in November 1977, she returned to work in the employer=s Fabrication Department, again on the second shift.  Shortly after this she posted for a transfer to the employer=s Micro Section, and after a brief period moved to the day shift sometime in 1978.  The employee next went to the employer=s Taping Department, where she worked about ten years, mostly on the first shift.  The employee testified that the main reason she wanted to stay on the first shift was because she was raising her eldest son and a second child, born in 1986.  (T. 22-23, 27-28.)

 

The Taping Department was disbanded and, apparently in October 1991, the employee posted on a transfer to the Electrical Test Department.  The employee testified that she worked in this department for about six and one-half years, on the day shift.  She was promoted to a foreman position in this department.  (T. 27; T. 63-65.)  The Electrical Test Department was disbanded, and the employee, who was offered the opportunity to move to one of several positions with the employer, chose to transfer to the Plating Department in February 1998, where she would have sufficient seniority to stay on the day shift.  (T. 27-28).  After training, the employee requested the fourth, or weekend shift.  She testified that she had resolved to try working this shift during the summer as her oldest son was working on Saturdays and her mother had agreed to try watching her children on Sundays.  She tried this shift for about five weeks but testified that the arrangements at home did not work out and so she returned to the day shift.  (T. 28)

 

On March 25, 1998, while working on the day shift, the employee sustained an admitted work-related injury to her cervical spine while working in the Plating Department.  The employee worked the rest of her shift but was very stiff the next morning.  On March 26, 1998 the employee reported the injury to her supervisor who took her for treatment to Dr. Norman Westhoff, M.D.  Dr. Westhoff diagnosed a left shoulder and cervical strain and restricted the employee=s lifting or carrying to 15 pounds and pushing or pulling to occasional and no more than 40 pounds.  The employee was also told to limit overhead reaching with her left arm.  (T.29; finding 1; Exh. B: 3/26/98.)

 

Although the employee continued to treat with Dr. Westhoff, she failed to improve as initially expected.  X-rays showed disc space narrowing at C6 to C7 and C7 toT1 and an MRI scan showed bulging at the C5-C6 level but without nerve root impingement.  Dr. Westhoff changed his diagnosis to cervical disc syndrome.  (Exh. B: 3/26/98 - 5/13/98.) 

 

The employer accommodated the employee=s restrictions, first placing her on light-duty work in the Plating Department.  In conjunction with some layoffs at the employer=s plant she was transferred to third shift work in the employer=s inspection department on or about May 19, 1998.  At that time she was medically restricted to six hours per day and on many days worked only four hours, from midnight to 4:00 a.m.  The night work lasted for about three weeks, after which the employee was again able to resume day hours in the inspection department; the employee testified that her mother had assisted her by spending the night at the employee=s home so that someone would be with her children.  (T. 65-66; Exh. B: 6/2/98.)

 

The employee remained under work restrictions including limited hours through September 8, 1998 when Dr. Westhoff released her to work eight hours per day, still under physical restrictions.  The employee underwent a functional capacities evaluation on November 19 and 20, 1998 which resulted in the establishment of permanent restrictions.  (Exh. B: 6/2/98 - 9/8/98; Exh. 3.)

 

At some point in 1998 the employee was transferred to light-duty work on day hours in the employer=s finishing department, and then in June 1999 the employee was again transferred, to light-duty work on day hours in the Plating Department.  (T. 37-42.)

 

The employer=s policy is that light-duty work is a temporary accommodation for injured workers, and the employer eventually determined that it would not be economically feasible to continue indefinitely to accommodate the employee with the light-duty work in the Plating Department.  On July 1, 1999 the employer and insurer sent the employee a written job offer for full time work in the finishing department, which had been reviewed by the employee=s QRC and which the parties agree is physically suitable for the employee.  As a result of the terms of the employer=s contract with its union and because the employee has less seniority than some current employees in the finishing department, the employee would not be eligible for day hours.  The employee did not accept the job offer and on July 6, 1999 she filed a rehabilitation request for an administrative conference to determine whether the offered position was suitable.  The employer filed a rehabilitation response on July 20, 1999, and a conference was held before a mediator at the Department of Labor and Industry on August 26, 1999.  On November 16, 1999 the mediator issued a decision and order determining that the job was not suitable and that the employee was not required to accept it.  The self-insured employer filed a request for formal hearing on December 15, 1999, resulting in the hearing below.  (T. 85-92, Exh. F; Finding 6; Judgment Roll.)

 

A hearing was held before a compensation judge of the Office of Administrative Hearings on February 18, 2000.  Following the hearing, the compensation judge served and filed his Findings and Order on March 3, 2000, determining that the job offered to the employee was not reasonably attainable.  The self-insured employer appeals.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must 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).  Factfindings may not be disturbed, even though this 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.

 

DECISION

 

The issue below as framed by the parties in this case was whether the position offered to the employee by the self-insured employer on July 1, 1999 was an offer of gainful or suitable employment such that the employee=s failure to accept the job would be unreasonable pursuant to Minn. Stat. ' 176.101, subd. 1(i), and Minn. R. 5220.0100, subp. 34.  (ER brief at p. 8; T. 4-6, 16-20.)  The statute provides that:

 

Temporary total disability compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the commissioner which meets the requirements of section 176.102, subdivision 4, or, if no plan has been filed, the employee refuses an offer of gainful employment that the employee can do in the employee=s physical condition.  Once temporary total disability compensation has ceased under this paragraph, it may not be recommenced.

 

The rule defines gainful employment as:

 

ASuitable gainful employment@ means employment which is reasonably attainable and which offers an opportunity to restore the injured employee as soon as possible and as nearly as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without disability.  Consideration shall be given to the employee=s former employment and the employee=s qualifications, including, but not limited to, the employee=s age, education, previous work history, interests, and skills.

 

 The compensation judge found that

 

During her employment with the employer the employee has primarily worked the first shift for the employer.  The employee is a single parent and has two of her children living with her.  The oldest child is a son of 22 years who has cerebral palsy.  He is unable to be by himself except for short periods of time.  This son goes to a sheltered work shop or school during the day and at times performs short periods of appropriate supervised work activity.  The employee testified how this son=s behavior at times is Aout of the ordinary@ and that he lacks Acommon sense@.  The employee=s other son is 14 years old and requires the necessary parenting support and supervision of a teenager.  By working the first shift over the years of employment with the employer, the employee has been able to care for her children=s needs.  The employee indicated how necessary it was for her to be at home when her children were there so that their needs would be met.

 

(Finding 6.) 

 

Based on this finding, the compensation judge further found that

 

The offered employment to the employee on June 16, 1999 was not gainful employment.  It would be reasonable for the employee to turn down this offered work.  The offered employment would greatly alter the reasonable and responsible pattern of life of the employee, would significantly diminish the employee=s capability of meeting the necessary needs of her family, and cause a major disruption in her family life.  The employee=s physician has recommended that she work days because of the medication that she takes for her injury.  The offered work is not attainable for the employee.

 

(Finding 7.)

 

The employer argues that so long as its offer is for suitable gainful employment, it has satisfied its obligation to the employee and should no longer be required to provide temporary total disability or provide further rehabilitation services.  Since the parties stipulated that the job offer to the employee was physically and economically suitable, the employer contends that its obligations to the employee had been met as a matter of law.  In the alternative, it argues that if a reasonableness standard was to be applied to the statute that the evidence in this case did not support the compensation judge=s factual findings concerning the employee=s personal needs.

 

Our holdings have long recognized that an injured worker need not be required to dramatically alter a reasonable and responsible pattern of living in order to maintain eligibility for workers= compensation benefits.  Begin v. Thermo Serv. Co., 36 W.C.D. 404 (W.C.C.A. 1984).   This court has recognized that evidence that an employee's child has special needs, or would be unsupervised if the employee accepted a specific work offer, may constitute special circumstances which may render a job within an employee's physical restrictions nonetheless unsuitable.  For example, in Furrer v. Campbell Soup Co., slip op., (W.C.C.A., Feb. 3, 1987), this court reversed a compensation judge=s determination that the employee had unreasonably declined a job offer where the evidence was uncontroverted that the job that was offered commenced at 4:00 a.m. and that the employee refused the job because she had a legally blind and physically handicapped 12-year-old daughter who required her care and assistance in preparation for school in the mornings.  We held that the employee's refusal of the job was reasonable because there was a change in the hours of duty which conflicted with her daughter's special needs.  In so holding, we relied on Talmadge v. Medtronics, Inc., 314 N.W.2d 433, 34 W.C.D. 410 (Minn. 1982), in which the Minnesota Supreme Court ruled that an employee who restricted her job search to the first shift, so that her daughter would not be unsupervised after school, did not act unreasonably.   We hold to the view that under Minn. Stat. ' 176.101, subd. 1(i), a compensation judge is not limited to considering only the physical and economic suitability of the offered work in determining whether refusal of such work is unreasonable, but is entitled to consider special factors including the individual needs of the employee=s family and the possibility of disruption to the employee=s normal work patterns.

 

The employer argues that the record does not support the finding that the employee needed to work the day shift to care for her children, pointing to the periods in her work history for the employer when she had worked on other shifts.  We note, however, that these periods were all of short duration and that the employee=s testimony about these periods adequately supported the inference that while she had been able to make temporary arrangements to deal with these shift changes, the arrangements were not practical for extended periods.  The employee=s  testimony about her children=s needs was unrebutted and very clearly supported the judge=s specific findings.  The compensation judge was not clearly in error in accepting the employee=s testimony on these matters as credible.  We must affirm these factual findings.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

 

The employer also argues that there was insufficient evidence to support the judge=s observation that the employee=s physician had recommended that she work days as a result of the effects of her medication.  While it does not appear that this recommendation was a significant factor in the judge=s determination, we note that there was sufficient evidence in the record to support this point.  Dr. Westhoff=s chart notes beginning on June 2, 1998 and over the next several months discuss the doctor=s concern over the effect of sleep disturbances on the employee=s condition and his treatment efforts to Aimprove her sleep pattern as a way to help the muscle tension that is associated with myofascial pain,@ by prescribing increased use of Amitriptyline.  The recommendation for day hours in conjunction with the employee=s use of this medication was first made in June 1998.  The employee testified that she was still taking this medication as of the date of the hearing.  (Exh. B: 6/2/98 - 8/24/98; T. 31-32.)

 

Finally, the employer contends that the compensation judge was prejudiced by evidence offered by the employee and admitted over objection with respect to other tasks which the employee might be physically able to perform for the employer.  The employer argues that the compensation judge erroneously concluded that the employer had failed to consider offering the employee other first shift work in its plant that the employee could handle which was available to a person with her seniority.  The employer argues, first, that such evidence was not relevant to the question of whether the specific job which was offered was suitable, and second, that it was not required in any event to offer other work where to do so would be economically unfeasible and would risk violation of the terms of the collective bargaining agreement with the employees= union. 

 

Much of the evidence complained of was actually background evidence relevant to the employer=s own exhibits regarding the job analyses performed by the employee=s QRC, or to an understanding of the employee=s duties in tasks she had been performing in the light-duty work provided following her injury.  It is true that the compensation judge did observe in his memorandum that Ait would appear to be within the best interests of all parties to find the employee a physically and economically suitable job for the employer in an alternative department where not all the tasks are expected to be performed and where reasonable accommodations can be made for the employee=s physical restrictions.@ (Mem. at 4-5.)^[1] We do not interpret this comment to mean that the compensation judge based his determination on the possibility of other first shift work rather than on the stated basis that non-day-shift hours were not reasonably attainable for the employee in light of her family needs.  The statement in the memorandum appears to be an advisory recommendation to the parties concerning what the judge, in his experience, believed might produce the best outcome for all parties.  As such, it is non-binding and has no force and effect.  Although it was not within the judge=s charge to offer advice, we do not believe that the fact that he did so constitutes clear error.^[2]