KURTIS W. SCOTT, Employee/Appellant, v. ELECTRONIC DESIGN CO. and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 26, 2000

 

HEADNOTES

 

IMPAIRMENT COMPENSATION - SUITABLE JOB; JOB OFFER - PHYSICAL SUITABILITY; STATUTES CONSTRUED - MINN STAT. ' 176.101, SUBD. 3e.  That communication may have been poor among various agents of the case as to the employee=s physical restrictions and his tolerance of the job, was not dispositive of the physical suitability of the employee=s post-injury job itself; and, where that job was not clearly and obviously outside the employee=s initial documented physical restrictions and the post-injury employer expressed readiness to accommodate increased restrictions as to work hours, the compensation judge=s conclusion that the post-injury job was physically suitable within the meaning of Minn. Stat. ' 176.101, subd. 3e, so as to preclude payment of permanency benefits as economic recovery compensation, was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J. and Johnson, J.

Compensation Judge:  Gary P. Mesna

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that the employee=s post-injury job was physically suitable employment, so as to preclude payment of permanent partial disability benefits as economic recovery compensation.  We affirm.

 

BACKGROUND

 

On November 6, 1991, Kurtis Scott sustained a work-related injury to his ankle when he slipped off a van in the course of his employment as an installer with Electronic Design Company.  Electronic Design Company [the employer] and its insurer admitted liability for the injury and commenced payment of various workers= compensation benefits.  On the date of the injury, Mr. Scott [the employee] was twenty-three years old and was earning a weekly wage of $609.82.  The employee returned to work for the employer subsequent to his injury, but the ankle twice thereafter required surgery.  Moreover, consequent to his ankle injury, the employee also developed a lumbar disc injury, which also required surgery and for which the employer and insurer also acknowledged liability.

 

Ultimately unable to continue in his work for the employer, the employee was eventually given the rehabilitation assistance of QRC Cheryl Sanmartin, beginning in April of 1996.  He subsequently underwent an extended program of physical therapy and a functional capacities assessment.  The assessment, which was concluded on July 12, 1996, resulted in findings that the employee could sit four hours during an eight-hour work day, could stand four hours during an eight-hour work day, and could walk four hours in an eight-hour work day.  Additional findings included the following restrictions:  no more than minimal crouching or kneeling; no more than occasional bending, stooping, squatting, crawling, climbing, balancing, pushing, pulling, or above-shoulder reaching; no more than rare lifting or carrying of over seventy pounds; and no more than occasional lifting or carrying of over fifty pounds.  By a report dated October 18, 1996, the employee=s orthopedist, Dr. Jonathan Biebl, indicated that the employee had reached maximum medical improvement [MMI] with regard to his work injury on October 10, 1996, with a permanent partial disability related to his low back ratable at 10% of the whole body and a permanent partial disability related to his ankle ratable at 7% of the whole body.

 

On October 21, 1996, the employee found a job as an installer at Communication Engineering Company [CEC], and four days later he was served with Dr. Biebl=s MMI report.  Although it was similar to the employee=s job at the employer, the job at CEC apparently required no lifting over seventy pounds, whereas the job at the employer had required lifting up to one hundred pounds.  The employee=s job at CEC, which primarily entailed running cable to electronic components, paid $10.00 an hour and time-and-a-half for overtime, for which options were ample.^[1]  The job required the employee to do frequent traveling, to work frequently on a stepladder, to work sometimes in awkward positions, and to be on his feet most of the time.  The employee eventually worked a considerable amount of overtime at the job, sometimes working as many as seventy hours a week.

 

Rehabilitation records indicate that the employee was Asomewhat frustrated with his new job@ already only four days into it, when he spoke with his QRC on October 25, 1996.^[2]  Those records indicate expressly that the employee Adid not discuss any problems with job performance or his physical condition@ but was instead disappointed in that, Aalthough he had been told he could obtain certification for fiber optics and category 5, there was no specific certification.@  The employee did concede, however, that CEC Awould teach him fiberoptics and category 5 techniques@ without certification.  The employee went on to complain to his QRC also Athat he felt management was very disorganized, and the co-workers tend to grumble about the company in general.@  QRC Sanmartin Aadvised [the employee] that if he did not approve of his employment with CEC, he might want to contact Floyd Security, since they offered him a job prior to his accepting the position at [CEC],@ and the employee indicated that Ahe might consider recontacting Floyd Security when he returned@ from a job assignment in Baltimore.  When he next talked with the QRC, on November 18, 1996, the employee Adid not state . . . that he was having any problems with either his back or ankle,@ but he did express dissatisfaction with being required to work sometimes seventy hours in a week, and he indicated Athat because he was unhappy with the management at [CEC], he was going to interview again with@ a different employer.

 

On December 13, 1996, the employee=s attorney wrote to the insurer=s claim specialist, Norma Buchanan, complaining that the employee=s job was not suitable.  She contended that the job was Aa dead-end job that does not offer the retraining benefits that [the employee] wanted@ and that it required the employee to work substantial overtime and Ato assume working positions that place stress on his back.@  On December 17, 1996, Ms. Buchanan spoke with the employee=s placement specialist, Mary Jane Hawley,^[3] indicating that she was writing to the employee to inquire as to why he had worked only fifteen hours the previous week.  Ms. Hawley=s record of the conversation indicates that Ms. Buchanan Atold me that I may need to intercede but we would hold off at this time.@  In her letter on that same date to the employee, Ms. Buchanan suggested to the employee, Aif you are having medical difficulties, you need to return to your doctor.@

 

About two weeks later, on December 30, 1996, the employee evidently called his supervisor, Rick Carlson, and left a message that he would not be in to work on time because he was having car problems.  The employee did not return to work that day, and when he returned to work the following day he informed Mr. Carlson that he had stayed off work the day before not because of car problems but because of his back injury, for which he needed to stay off work yet another day.  Finally, about a week later, on January 6, 1997, the employee saw Dr. Biebl, who noted that the employee=s Aback is giving him problems,@ that he was Ahaving some numbness and tingling in his anterior and lateral right thigh,@ and that A[h]is right ankle bothers him.  He has a painful crack in it.@  Dr. Biebl=s treatment notes indicate that the doctor recommended that the employee Aavoid the positions that bother him,@ that he Awork in some more hip extension stretches,@ and that he have a follow-up MRI scan of his ankle.  The eventual MRI scan ultimately revealed very little change since an MRI taken in 1995.

 

On January 9, 1997, QRC Sanmartin evidently spoke with CEC=s Human Resources officer, Barbara Tepley, who indicated that she was unaware of any performance issues or physical complaints by the employee concerning his work for CEC.  QRC Sanmartin=s letter to the employee the following day, January 10, 1997, assured him of her commitment to ensuring that his position at CEC was Anot causing an exacerbation of your physical condition,@ but she complained of a lack of information from him and emphasized that he must stay in better touch with her.  On that same date, January 10, 1997, Dr. Biebl wrote to QRC Sanmartin, acknowledging the employee=s complaint Athat just sitting on the floor cross legged trying to do some of the low work he finds necessary in the course of his job, his back just starts hurting and causes him considerable discomfort@ and that A[h]e also has difficulty with some of the very long hours he has been working, 70 hours a week.@  Dr. Biebl indicated in that letter, AWe are going to limit [the employee] to 50 hours a week, no more than 10 hours per day.  I gave him the restriction sheet to that effect when he was last in this office this last Monday.@^[4]

 

On Tuesday January 7, 1997, the employee traveled to a job site in Denison, Texas, where he evidently put in about a seventy-hour work week for CEC with another of its employees, Bruce Olson, who apparently had supervisory responsibilities over the employee.  The employee has testified that one day in the course of that week he had a flare-up of back pain that left him incapacitated for several hours on the floor of the office area at the work site.  Subsequent to that week in Texas, the employee traveled on by himself to begin another job for CEC in Murfreesboro, Tennessee.  On Monday January 13, 1997, the employee evidently informed another CEC employee in Murfreesboro that he could not work that day, pursuant to Dr. Biebl=s restrictions.  That individual telephoned Mr. Carlson, who called the employee and informed him that he should have reported his restrictions to CEC earlier, instead of, as the employee claimed to have done, relying on Mr. Olson to report them.  Also on January 13, 1997, QRC Sanmartin wrote to Mr. Carlson, indicating that the employee Aquestions your ability to accommodate the limited work hour restriction@ and inviting a call from Mr. Carlson to discuss the employee=s situation.

 

Employment records indicate that the employee did not work on the day he conferred with Mr. Carlson, January 13, 1997, pursuant to Dr. Biebl=s recent restriction.^[5]  He apparently did work 11.5 hours the following day, but over the course of that and the next three days he did average only ten hours a day, before returning from Murfreesboro to Minnesota.  On Monday January 20, 1997, his next scheduled day for work, the employee called in to CEC a short while before he was due to appear for work, to inform CEC that he could not work because he had been up all night with a hospitalized friend.  He was asked to meet the following day with Mr. Carlson, who secured his signature on a reprimanding ACounseling Statement.@  The statement described Athe problem@ as follows:  A[The employee] failed to promptly inform me of a medical condition that will directly effect his work schedule.  He was aware of this for one week prior to letting me know. [The employee] also has failed to give appropriate notice for being absent from work during his probation period.@  AExpectations@ expressed on the final page of the statement indicated that the employee Awill be on review for the next two months (60 days)@ and that A[a]side from illness, [the employee] will be expected to be at work every day for which he is scheduled.@  In the course of the meeting at which this Counseling Statement was issued, the employee apparently expressed a need to leave early either that or the following day, apparently without stating a reason,^[6] and he was ultimately terminated for what was subsequently documented as a A[r]efusal to work.@

 

On January 23, 1997, two days after his termination, the employee reached ninety days post service of MMI.  About a month later he became reemployed at a suitable job.  The parties ultimately agreed that the employee had sustained permanent partial disability consequent to his work injury ratable at 10% of the whole body related to his low back and ratable at 7% of the whole body related to his ankle.  After application of the statutory combining formula, the employee was paid impairment compensation [IC] in the amount of $12,120.00 for a 16.16% whole-body impairment.  On April 17, 1997, the employee served a Claim Petition on the insurer,^[7] alleging entitlement to $561.81 in medical benefits and to payment of nearly $34,000.00 more in permanency benefits as economic recovery compensation [ERC], based on a position that the employee=s job at CEC had not been a suitable one within the meaning of Minn. Stat. ' 176.101, subd. 3e.  The employer and insurer denied the claim.

 

The matter eventually came on for hearing on May 4, 1999.  At the hearing, QRC Sanmartin testified in part that the employee=s only restrictions at the time he began working at CEC were, as she understood them, that he should not lift over seventy pounds, that he should sit, stand, and walk in equal proportions over the course of a work day, and that he should walk no more than six hours during a work day, on level ground.  Also testifying, by a post-hearing deposition on May 13, 1999, was Mr. Carlson.  He testified that he had given the employee a job description at the time of his hiring interview on October 3, 1996, that he had indicated at that time that the job would involve some traveling and that Asome of our jobs worked odd shifts and long hours,@ and that the employee had voiced no objection.^[8]  He testified that the employee expressed to him no physical reservations about the job even after putting in his first month of substantial overtime and travel work.  He testified that he was not informed that the employee had a preexisting back injury until his meeting with the employee December 31, 1996, or that the employee was under any work restrictions until January 13, 1997, upon the employee=s refusal to begin his work day in Murfreesboro.  Mr. Carlson testified that, had he been informed earlier of the employee=s hours restriction, he would have accommodated it, since there was sufficient work to be done locally within that limitation.  He testified that the specific Arefusal to work@ for which the employee was ultimately terminated was the employee=s insistence on additional time off at the time of the January 21, 1997, meeting itself.  He indicated that termination would not have been the normal result of the Counseling Statement issued to the employee on that date, that termination was not anticipated prior to that meeting, and that the employee could well have returned to his job had he not insisted that day on leaving work early.  Mr. Carlson also confirmed under direct examination that the copy of QRC Sanmartin=s letter that was sent to him January 13, 1997, bears a January 22, 1997, date stamp.  He did not recall the date on which he personally received the letter, suggesting that he may have been on a job site or out of town at the time of its receipt, and he did not recall responding to it, suggesting that he saw no reason to do so subsequent to the employee=s termination.

 

By Findings and Order filed June 15, 1999, the compensation judge concluded in part that the employee had worked at CEC from October 21, 1996, until January 21, 1997, and that his job there had been consistent with the employee=s rehabilitation plan, had met the requirements of Minn. Stat. ' 176.102, and had been a suitable job within the meaning of Minn. Stat. ' 176.101, subd. 3e.  On those findings the judge denied the employee=s claim for payment of his permanency as ERC because the employee had held a suitable job within ninety days post MMI.  The employee 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

 

In his memorandum, the compensation judge explained,

 

The problems that the employee had in performing the job [at issue] had more to do with the number of hours he was working, than with the specific duties that he was performing or the amount of time that he was on his feet. . . .  After the 50 hour restriction was issued, the employee was not required to work more than 50 hours per week, at least after the restriction was communicated to CEC.  Therefore, the job met his restrictions until he was terminated on January 21, 1997.

 

Emphasizing that his absence from work on December 30, 1996, came after one of his Ashort@ weeks of work, the employee contends that A[o]bviously, the number of hours of work per week w[as] not the only problem with this job.@  He contends that Ajudge Me[sn]a=s finding . . . is pure speculation that runs contrary to the evidence from December 1996.@  We are not persuaded.

 

Initially, we would note that we find no definite medical documentation to support the employee=s assertion that his absence from work on December 30, 1996, was back related.  Even if it was, however, we conclude that it would not have been unreasonable for the compensation judge to conclude that substantial permanent disabilities to the back and ankle such as those to which the employee is subject might become more painful as a simple result of the mere quantity of work or fatigue.  This is particularly true given Dr. Biebl=s own added restriction on work hours in early January 1997.  Nor is it Aobvious@ that long-term overwork may not have effects that are not immediately manifested.  Were there clear evidence that the employee went off work on December 30, 1996, in direct response to pain experienced as a direct result of particular required activity that exceeded his physical capacity, we might be more inclined to credit the employee=s argument on this issue.  The record reflects no such sequence of events, however, and there is little evidence aside from the employee=s own testimony that the employee=s normal work requirements regularly exceeded his original restrictions.

 

The compensation judge also stated in his Memorandum,

 

It is significant that in January 1997, when Dr. Biebl limited [the employee] to no more than 50 hours per week, he did not impose any other specific restrictions on his work activities or the amount of time that he could be on his feet.  Therefore, the job at CEC met his physical restrictions until January 10, 1997.

 

The employee argues that Dr. Biebl states also, however, in that same January 10, 1997, restriction letter, that Ajust sitting on the floor cross legged trying to do some of the low work he finds necessary in the course of the job, [the employee=s] back just starts hurting.@  The employee contends that by this statement ADr. Biebl clearly indicates that the low work positions are inappropriate for [the employee], even if he doesn=t specifically say >no low work positions= in his report.@  The employee=s argument is not without merit, but we conclude that the very fact of the near juxtaposition of the statement about low work positions and the restriction as to work hours argues contrary to the employee=s position.  Had Dr. Biebl seen the low work tasks as importantly problematic with regard to the employee=s condition and warranting of further restriction, his own comment about them directly adjacent to his restriction on hours would most reasonably have triggered a restriction in regard to them as well.  At any rate, it would not have been unreasonable for the compensation judge to so conclude.

 

As referenced above, the compensation judge indicated in his memorandum that CEC no longer required the employee to work more than fifty hours a week once it learned of his hours restriction.  The employee argues that AQRC Sanmartin discussed difficulties that [the employee] was having on the job with [CEC Human Resources officer] Barb Tepley on January 9, 1997, and Tepley took no steps to accommodate his disability.@  He argues that the judge=s conclusion as to the employee=s prospects for handling the CEC job after that date within the fifty-hour restriction was apparently based on a conclusion that Mr. Carlson=s professed commitment to accommodating the employee=s disabilities was credible, whereas, the employee argues, Mr. Carlson was clearly Aunworthy of trust.@  The employee supports this contention by arguing that Mr. Carlson not only did not follow CEC=s own established procedures for accommodating disabilities but did not even understand that such accommodation means something other than simply giving a worker time off when his symptoms flare up.  He argues further that, even after he learned of the employee=s low back and ankle problems at the end of December, Mr. Carlson took no pro-active steps in accommodation, such as requesting documentation of the employee=s restrictions, pursuing further evaluation, inquiring into the employee=s job requirements, or involving Human Resources staff or other specialist help.  Again we are not persuaded.

 

Assessment of a witness's credibility is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  While it does appear from his testimony that Mr. Carlson was less than experienced at accommodating disabilities of injured employees, the credibility of his willingness to do so was not sufficiently impeached at his deposition to preclude our normal deference to a factfinder=s credibility-based conclusions.  This is particularly true in light of counter-weighing factors with regard to the employee=s own credibility as to the severity of his physical problems with the job - - e.g., his evident lack of urgency to report those problems to his QRC or to seek further medical care or even to seek medical modification of his restrictions over the three-month period of his employment at CEC, and perhaps the suggestion in the evidence as a whole that his principal dissatisfaction with the job may have, from early in the employment, been based more on nondispositive disappointment with its training options than on actual physical unsuitability.  Moreover, the employee=s allegation that Mr. Carlson failed to take sufficiently affirmative action with regard to accommodation begs the question as to the extent to which Mr. Carlson was actually informed by the employee or his rehabilitation assistants as to his restrictions.  To the extent that the judge credited Mr. Carlson=s version of what he knew about the employee=s restrictions before January 13, 1997, Mr. Carlson may not be expected to have taken more affirmative attention or action sooner.

 

Finally, the employee contends that the employer and insurer themselves and even the QRC and placement specialist ignored numerous opportunities either to ensure that the employee=s CEC job was made suitable or to help the employee to locate other suitable employment.  He argues, for example, that the employer and insurer discouraged QRC Sanmartin from doing an on-site review of the job when they first began to learn of the employee=s complaints.  He argues that placement specialist Hawley misadvised the employee by instructing him to hide his disability from potential employers.  He contends that QRC Sanmartin was remiss in failing to advise the employee about how to use the Americans With Disabilities Act more to his advantage, in allowing the insurer to discourage an on-site job analysis, and in allowing the insurer to be guided solely by the CEC job=s financial suitability.  He contends that both the QRC and the placement specialist were remiss in failing to define their separate rehabilitation roles adequately for the sake of better communication.  Again we are not persuaded.

 

Certainly there does exist evidence that the insurer in this case acted conservatively in its assistance of the employee once he was working in his post-injury job with CEC, but claims adjuster Buchanan=s instruction to Ms. Hawley that she Ahold off@ before Ainterceding@ does not rise to the level of unreasonableness, given the circumstances.  Certainly the channels of communication and responsibility among the employee, his QRC, and his placement specialist were not always clear.  Certainly there is also an argument that the employee=s long working hours in places remote from Minnesota complicated communications, not only among those three individuals but also between the employee and his coemployees and supervisors at CEC.  However, that communication among the various agencies as to the employee=s work and his disabilities may have been less than optimum is not a determining factor as to the physical suitability of the job itself.  The fact remains that the employee=s post-injury job with CEC was not clearly and obviously outside his initial documented physical restrictions, and once those restrictions were increased and communicated to preclude the employee=s working more than fifty hours a week, the employee was no longer required to work more than fifty hours a week.  Nor has the employee sufficiently demonstrated that Mr. Carlson was not credible in testifying as to that requirement and his preparation to accommodate the employee=s restrictions once he learned of them.  Nor has the employee sufficiently proven that his disappointment with training expectations at the job constituted a clear deficiency in the job=s economic suitability under the statute.

 

There is no question about the fact that this is and has been a troublesome case, for all concerned.  In the end, however, it was not clearly unreasonable for the compensation judge to conclude that the employee=s post-injury job with CEC was both physically and economically suitable within the meaning of the statute, so long as the employee held it.  And because the employee was working at that reasonably suitable job within the statutory ninety-day post-MMI period, it was not improper for the judge to conclude that the employee is not entitled to payment of his permanency benefits as ERC.  Because it was neither unreasonable nor clearly erroneous, we affirm the judge=s decision.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Minn. Stat. ' 176.421, subd. 1(3).