DAVID P. ROBLE, Employee, v. INDEPENDENT SCH. DIST. #625, SELF-INSURED/PREFERRED WORKS, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 9, 2000

 

HEADNOTES

 

JOB OFFER - ECONOMIC SUITABILITY; JOB OFFER - PHYSICAL SUITABILITY.  Substantial evidence, including the employee=s treatment records, rehabilitation records, and testimony, supported the compensation judge=s conclusion that the job the employee obtained within the 90-day post-MMI period was not physically or economically suitable within the meaning of Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995).

 

Affirmed.

 

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

Compensation Judge:  Bernard Dinner

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s award of economic recovery compensation for the employee=s permanent partial disability.  We affirm.

 

BACKGROUND

 

On November 7, 1991, and March 11, 1992, the employee sustained cervical and thoracic injuries in the course and scope of his employment as a full-time custodial engineer for Independent School District #625 [the employer].  His weekly wage on the date of both injuries was $586.00.  The employee received chiropractic care from Dr. Paul Thompson following the injuries and was eventually treated or evaluated by several other medical providers, including Drs. Thomas McPartlin, Keith Chilgren, John Larkin, Mahmoud Nagib, David Gottlieb, and Larry Stern.  Diagnostic tests revealed degenerative changes and/or disc bulges or herniations at several levels of the employee=s cervical spine.

 

The employee was unable to perform his usual pre-injury job due to restrictions imposed by Dr. Thompson because of his work injury, and the employer provided the employee with rehabilitation assistance to help him secure suitable employment with another employer.  Efforts in this regard were unsuccessful, however, and the employee eventually asked Dr. Thompson to modify his restrictions so as to allow him to accept a job with the employer as a facility service worker, a position similar to, but somewhat lighter than, the employee=s pre-injury job.

 

The employer offered the employee the facility service worker position in October of 1994, and the employee began the job on November 1, 1994, working four hours a day in accordance with Dr. Thompson=s restriction on hours.  Shortly thereafter, following a hearing, a compensation judge determined that the employee had reached maximum medical improvement [MMI] from his injuries effective October 28, 1994.  The judge=s decision in this regard was affirmed on appeal to this court.  Roble v. Independent School Dist. #625, slip op. (W.C.C.A. Mar. 21, 1995).^[1]

 

The facility service worker job paid the employee $10.58 an hour, or $211.60 a week.^[2]  The employee testified that the primary difference between the facility service worker job and his pre-injury custodial engineer job was that the latter position involved boiler work in the summer.  The employee also testified that he had help with lifting and that his supervisor was understanding about his limitations.  According to a job description completed by the employee on December 15, 1994, six weeks into the job, the facility worker position required frequent bending, stooping, balancing, pushing, pulling, and twisting, frequent lifting up to twenty-four pounds, and occasional lifting up to seventy-four pounds.  In the comment section of that job description, the employee wrote that the job was not as easy as he had hoped and that he was so stiff, after three hours of work, that he could not turn his head, but that he was Ahoping it gets better.@  The plan was to increase the employee=s hours in this job, over time, until he was working full time.  However, he never went beyond four-hour shifts.  Chiropractic and rehabilitation records indicate that the employee=s symptoms increased, on a continuing basis, following his return to work, and by April of 1995, the employee=s QRC had begun investigating another job with the employer.

 

Dr. Thompson removed the employee from the facility service worker job in September of 1995, due to an acute flare-up of the employee=s symptoms, and the employee remained off work until April of 1996, when he started a greeter/hall monitor job, again working four hours a day but gradually increasing his hours until he returned to full-time status.

 

On October 15, 1999, the matter came on for hearing before a compensation judge to determine the employee=s claim for permanent partial disability benefits.  At issue was the extent of the employee=s work-related permanent impairment, if any, and the form of benefits payable for that impairment.  In a decision issued on December 13, 1999, the compensation judge concluded that the employee had a 10.5% whole body impairment, for multilevel cervical degenerative changes, and that economic recovery compensation was payable for that impairment because the facility service worker position was not suitable employment.  The employer appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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, Aunless 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

 

Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995), provides as follows:

 

(b) If at any time prior to the end of the 90-day period described in clause (a) the employee retires or the employer furnishes work to the employee that is consistent with an approved plan of rehabilitation and meets the requirements of section 176.102, subdivision 1, or, if no plan has been approved, that the employee can do in the employee=s physical condition and that job produces an economic status as close as possible to that the employee would have enjoyed without the disability, . . . the employee shall, if appropriate, receive impairment compensation pursuant to subdivision 3b.

 

Pursuant to Minn. Stat. ' 176.101, subd. 3p (repealed 1995),

 

Where the employee has a permanent partial disability and has reached maximum medical improvement or upon completion of an approved retraining program, whichever is later, that employee shall receive economic recovery compensation pursuant to subdivision 3a if no job offer meeting the criteria of the job in subdivision 3e is made within 90 days after reaching maximum medical improvement or 90 days after the end of an approved retraining plan, whichever is later.

 

In the present case, the employee began the facility service worker job prior to the expiration of the 90-day post-MMI period, and he remained in that job for about ten months.  The job was apparently within the restrictions set by Dr. Thompson and numerous functional capacity evaluations and was also consistent with rehabilitation goals at the time.  However, the compensation judge found that the job was neither physically nor economically suitable, and he therefore determined that the employee was entitled to economic recovery compensation for his permanent partial disability.  On appeal, the employer argues that substantial evidence does not support the judge=s decision.  We are not persuaded.

 

As previously indicated, chiropractic records reflect that the employee=s condition began to worsen almost as soon as he began the facility service worker job on November 1, 1994.  Dr. Thompson=s office note from November 16, 1994, indicates that the employee was feeling worse by the end of his shift and that he had gone back on medication, prescribed by Dr. Larkin.  A December 9, 1994, note reflects complaints by the employee that his neck and shoulders were really bothering him at work, and by January of 1995, the chiropractor had recommended steroid injections to alleviate the employee=s increasing complaints.  Two March 1995 notes reflect that the employee had barely been able to get through his shifts on two occasions, and by April of 1995, the employee=s QRC was already looking into other work for him.  In fact, on May 1, 1995, the employee and his QRC signed a rehabilitation plan amendment reflecting a plan to find the employee another job with the employer.  The QRC=s May 22, 1995, progress report indicates as follows:

 

Although Mr. Roble has been working in the Facility Service Worker position for some time now at 4 hours per day, he continues to have worsening symptoms.  I discussed this aspect with Mr. Roble in quite a bit of detail on 5/22/95 and he indicated that the original restrictions might not have allowed him to return to work at all.  However, he needs to work and wants to work and, therefore, prevailed upon his physician to liberalize the restrictions with the knowledge that he might be able to modify the job by himself as he performs it.  However, he continues to have ongoing and increasing physical difficulties which are a topic of concern.

 

This evidence, together with the employee=s testimony,^[3] easily supports the judge=s conclusion that the facility service worker job was not, from the outset, a Ajob that the employee [could] do in the employee=s physical condition,@ as specified by Minn. Stat. ' 176.101, subd. 3e(b).  With regard to economic suitability, we note only that, because the employee was never able to increase his hours, the job paid less than half of what he was earning pre-injury, and rehabilitation records characterize the job as temporary.  Either or both factors would support the compensation judge=s decision that the job did not produce Aan economic status as close as possible to that the employee would have enjoyed without the disability.@  Minn. Stat. ' 176.101, subd. 3e(b); see Gackstetter v. Johnson/Midwest Coca Cola Bottling, 511 N.W.2d 439, 50 W.C.D. 51 (Minn. 1994); Rogholt v. Knight Elec., 511 N.W.2d 442, 50 W.C.D. 66 (Minn. 1994); Cassem v. Crenlo, Inc., 470 N.W.2d 102, 44 W.C.D. 484 (Minn. 1991).

 

Because substantial evidence supports the compensation judge=s decision that the facility service worker job was not consistent with the requirements of Minn. Stat. ' 176.101, subd. 3e, we affirm his decision that the employee is entitled to economic recovery compensation for his work-related permanent partial disability.