ROBERT SEPPO, Employee, v. KOLAR BUICK, INC., and WESTERN NAT=L INS. GROUP, Employer-Insurer/Appellants, and WESTERN NAT=L INS. GROUP, Insurer/Cross-Appellant, and SPECIAL COMPENSATION FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 11, 2001

 

HEADNOTES

 

EVIDENCE - CREDIBILITY; CAUSATION - SUBSTANTIAL EVIDENCE.  Having carefully reviewed the entire, extensive record in this case, the court concludes there is no basis for reversing the compensation judge=s determination of credibility, or his determination that the September 5, 1990 low back injury arose out of and in the course of the employee=s work for the employer.

 

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE.  Having accepted the employee=s testimony regarding the circumstances surrounding the injury and that the employee promptly reported the injury and told the employer=s office manager the facts as the compensation judge found them, the judge=s determination that statutory notice was properly given must be affirmed.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  There is substantial evidence to support the findings that the employee sustained permanent and significant injuries to the mid-back (thoracic spine) on February 22, 1991 and May 19, 1993.

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the com­pensation judge=s determination that the employee sustained a permanent and significant injury to the low back (lumbar spine) on September 5, 1990.

 

JOB OFFER - REFUSAL; REHABILITATION - COOPERATION.  Substantial evi­dence supports the compensation judge=s findings that the employee cooperated with rehabilitation efforts and did not fail to pursue or refuse suitable employment in the automotive industry.

 

Affirmed in part and vacated in part.

 

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

Compensation Judge:  Donald C. Erickson

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s findings that the em­ployee was a credible witness, that the employee injured his low back in a work-related incident on September 5, 1990, that the employee gave sufficient notice to the employer of his 1990 injury, that the employee was entitled to wage loss and medical benefits paid for the injuries sustained on September 5, 1990, July 22, 1991, May 19, 1993, and March 8, 1994, and that the employee did not fail to coop­erate with rehabilitation or unreasonably refuse suitable offers of employment.  We affirm.  The insurer, separately, appeals solely from the inclusion of the Kolars, individually, as parties in the proceeding.  All references to the Kolars, individually, are removed.

 

BACKGROUND

 

Robert Seppo [the employee] began working as a mechanic for Kolar Buick, Inc., [the employer] in 1969.  In 1984, a fire substantially destroyed the employer=s premises.  The employee was skilled in carpentry and construction work and was asked to help with reconstruction and related remodeling.  Thereafter, the employee performed both mechanical work and carpentry/con­struction work at the direction of the owners of Kolar Buick.

 

On September 5, 1990, the employee sustained an injury to his low back.  Accepting liability for the injury, the employer and insurer paid temporary total disability benefits to October 9, 1990, when the employee returned to work, as well as medical ex­penses.  On July 22, 1991, the employee sustained a work-related injury to his mid-back while loading lumber into a company vehicle at Woodruff Lumber.  The employee was off work through August 5, 1991 as a result of the injury.  The employer and insurer accepted liability and paid medical and indemnity benefits.  On May 19, 1993, the employee reinjured his mid-back while performing work for the employer.  Ac­cepting liability for this injury, the employer and insurer paid temporary total disability benefits from May 19 through June 7, 1993, medical expenses and a 2.5 percent permanent partial disability for the thoracic spine.

 

On March 8, 1994, the employee injured his left shoulder in the employer=s shop while removing a wheel from a truck or four-wheel drive vehicle.  The employer and insurer admitted lia­bility for the left shoulder injury and paid temporary total disability benefits from March 8, 1994 through November 10, 1996, along with medical expenses.  Following the injury, the employee was treated concurrently for both right and left shoulder problems, eventually undergoing surgery for the right shoulder in July 1995 and the left shoulder in January 1996.  The employee also received ongoing treatment for the mid and low back during this period of time.

 

In September 1996, a formal job search was initiated with the assistance of a rehabili­tation consultant and a job placement vendor.  The employee obtained employment as a tool depart­ment clerk at Ace Hardware beginning on November 11, 1996.  The employee initial­ly worked full time, eight hours a day, but experienced increasing mid-back pain and low back pain with right leg sciatica.   The employee=s treating physician, Dr. Silvestrini, reduced the employee to four hours of work per day, gradually increasing to six hours per day.  The employer and insurer paid temporary partial disability benefits following the employee=s return to work.

 

On February 14, 1997, the employee filed a claim petition seeking additional permanent partial disability benefits, alleging an injury to the lumbar spine on September 5, 1990 and an injury to both shoulders on March 8, 1994.  The employer and insurer admitted a temporary low back injury on September 5, 1990, and admitted a back injury on May 19, 1993­.  The employer and insurer also admitted the claimed shoulder injuries and paid permanency of 11.64 percent as impairment compensation [IC].  On July 22, 1997, the employee filed an amended petition seeking payment of permanency for the shoulders as economic recovery compensation [ERC] rather than IC.

 

Following an October 1,1997 independent medical report by Dr. Richard Galbraith, the employer and insurer denied primary liability for a right shoulder injury, and claimed permanency had been mistakenly paid for the right shoulder and the thoracic spine.  On February 9, 1998, the employer and insurer served a notice of intent to discontinue benefits (NOID), seeking discontin­uance of temporary partial disability after January 17, 1998, asserting the employee had reduced his hours of work for nonwork-related reasons.  In an Order on Discontinuance filed March 20, 1998, a settle­ment judge allowed the employer and insurer to reduce the employee=s temporary partial disability benefits based on an imputed forty-hour a week wage.  The employee filed an Objection to Discon­tinuance on April 9, 1998.              

 

The matters were consolidated, and were heard by Compensation Judge Bonovetz at the Office of Administrative Hearings on July 28, 1998.  Near the end of the hearing, counsel for the employer and insurer advised the court that, based on the employee=s testimony at hearing, there appeared to be a conflict of interest between the employer and the insurer regarding coverage for the three back injuries.  The compensation judge denied counsel=s request for a continuance, and issued a Findings and Order on September 22, 1998, awarding benefits to the employee.  The insurer, through separate counsel, appealed.  In a decision served and filed April 7, 1999, this court vacated the September 22, 1998 Findings and Order, concluding the compensation judge erred in denying a continuance, and remanded the case to the compensation judge for further development of the record and redetermination of the issues presented.

 

On November 1, 1999, the employer and insurer filed a NOID seeking discontinuance of temporary partial disability benefits on the basis that the employee had refused suitable job offers from the employer and had voluntarily withdrawn from the relevant labor market by refusing or failing to seek jobs within the automotive field.  The NOID was consolidated with the remanded claims for hearing.

 

The case was heard by Compensation Judge Donald Erickson at the Office of Adminis­trative Hear­ings on November 11 and 23, 1999.^[1]  Separate counsel appeared for the employer and insurer, the employer, the insurer, and for the Special Compensation Fund.  At the hearing, the employer and insurer denied the September 5, 1990 injury arose out of and in the course of the employee=s work for Kolar Buick, and denied the employer and insurer received adequate notice of the 1990 injury.  The employer and insurer further denied the employee sustained any permanent or significant work-related injury to the low back or mid-back.  They also alleged the employee voluntarily restricted his job search for reasons not related to any work injury, and refused suitable em­ployment within his restrictions.  In a Findings and Order, served and filed May 16, 2000, Compen­sation Judge Erickson readopted most of Judge Bonovetz=s findings from the previous findings and order.  The judge found the employee credible and accepted the employee=s testimony with respect to where and how the September 5, 1990 injury occurred and the notice given to the employer and insurer.  The com­pensation judge further concluded the employee was entitled to the benefits paid as a result of the September 5, 1990, February 22, 1991, May 19, 1993 and March 8, 1994 injuries.   The judge also deter­mined the employee had cooperated with rehabilitation, had not unreasonably refused or failed to pursue alternative employment, and was entitled to temporary partial disability benefits based on his actual earnings at Ace Hardware.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be af­firmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  Similarly, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  Credibility; September 5, 1990 Injury

 

One of the crucial issues in this case was the credibility of the employee.   The employer and insurer contend the compensation judge=s determination that the employee was a credible wit­ness and the judge=s acceptance of the employee=s testimony is clearly erroneous and unsupported by substantial evidence.  We do not agree.

 

a.  Pre-existing back problems.  The employer and insurer contend the employee is not credible because he lied about his Aback problems@ prior to September 5, 1990.  Compensation Judge Erickson reviewed the employee=s pre-1990 medical history and specifically concluded there was Ano merit in the allegation that the employee hid his previous medical history.@  (5/16/2000 F&O, finding 30; see also 9/22/98 F&O, finding 9; 5/16/2000 F&O, findings 5, 6, 7, 8.)  There is ample evidence to support the compensation judge=s deter­mination.

 

The appellants point in particular to testimony and medical records regarding a spina bifida occulta.  However, on September 13, 1990, in a phone interview related to the September 5, 1990 injury, the employee specifically advised a worker=s compensation specialist retained by the insurer that he Ahad back problems as a kid.@  (Ex. 16; Clark Dep. Ex. 1.)  It is apparent from the employee=s testimony at the July 28, 1998 hearing, his April 6, 1999 deposition, and the November 1999 hearing, that he did not conceal the fact that in his teens he was advised he had a spina bifida occulta.^[2]  The employee did not recall having any symptoms or Aback trouble@ at that time.  When deposed in 1997, the employee initially could not remember why he failed his military physical in 1968 or 1969, but later volunteered that it was because of the spina bifida.  (T. Vol. I: 118-19, 173, 184; Ex. 21 at 7, 57; Ex. 22 at 71, 106-07.)  

 

There is little by way of medical records regarding a spina bifida defect.  On October 22, 1973, the employee saw Dr. Peter L. Boman at the Duluth Clinic for a severe right-sided lumbar muscle spasm.  The employee reported he was told he had spina bifida, and x-rays were taken confirming a Aslight@ spina bifida occulta defect at S1.  Dr. Boman concluded, however, that the employee=s condition represented Apurely an acute muscle sprain.@  (Ex. 16.)   On July 5, 1994, Dr. Matthew J. Eckman, a physical and rehabilitation specialist, reviewed the employee=s x-ray studies, observing that a slight spina bifida occulta had been noted in 1973 at the Duluth Clinic.  Dr. Larry Stern, who conducted an independent medical examination [IME] on August 20, 1999, also noted the employee=s report of being diagnosed with spina bifida.  An MRI scan taken on December 26, 1996, however, showed some lower lumbar facet arthritic changes but no spina bifida defect.  No one has ever suggested that the spina bifida occulta, if it exists, was significant or contributed to the em­ployee=s back problems in any way.

 

The appellants also assert the employee falsely denied pre-existing treatment for his back.  The medical records in evidence reveal five treatments for Aback@ problems between 1969 and September 5, 1990.  The sole record of any treatment for the low back prior to September 5, 1990, is Dr. Boman=s chart note of October 22, 1973.  On June 28, 1982, the employee was treated for neck pain with trapezius muscle spasm.  On November 11, 1982, the employee left a phone message re­porting his neck symp­toms were Aback,@ and requesting a muscle relaxant.  (Ex. 16.)  On August 20 and 27, 1990, the employee received treatment from Richard Fisher, D.C., for neck and upper thor­acic pain with hearing loss.  (Ex. D.)

 

The employee testified he simply did not remember any specific Aback problems@ prior to September 1990, explaining he may have had occasional back pain or a pulled muscle, but nothing that resulted in a loss of time from work or that lasted for any length of time.  This is entirely con­sistent with the medical record.  He could not recall seeing Dr. Boman, but stated he would not disagree that he had.  (T. Vols. I, II: 81, 119, 184, 187, 260; Ex. 20 at 28, 30; Ex. 22 at 71, 106, 170.)  Dr. Richard Galbraith, in his IME report of October 1, 1997, noted the employee had Asome back problems in 1973 and 1982@ but disregarded them Aas they were minor.@  (Ex. 13.)

 

The evidence indicates only that the employee had a Aslight@ developmental defect and very occasional treatment for the Aback@ prior to the 1990 and 1991 injuries.  The compensation judge could have reasonably concluded there was nothing very significant about the employee=s pre-exist­ing diagnoses and treatment, and his determination that the employee did not conceal his pre-existing medical history is amply supported by the record.

 

b.  September 5, 1990 Injury.  A First Report of Injury was completed by the employer=s office manager, Renee Nordman, on September 7, 1990.  The report indicates the employee, a mech­anic in the Kolar Buick service department, sustained a back sprain on the 5th of September.  The type of accident is described as a Apull@ and the object involved is listed as a Acar pusher.@  The job site is described as ADuluth;@ a checkmark indicates the injury occurred on the employer=s premises.  No other information is given about the circumstances of the accident.

 

During a deposition of the employee taken by counsel for the employer and insurer on July 31, 1997, a brief exchange took place in which the employee stated he was pushing something in the shop but did not remember what happened.  He then immediately volunteered that was how the injury was reported, but in fact, he was working construction for Kolar Buick at the time, and was pushing a wheelbarrow when he was injured.  This line of questioning was not pursued further.  (T. Vol. I: 235; Ex. 22 at 29-30; see Ex. 22 at 110-11.)   At the July 28, 1998 hearing before Com­pen­sation Judge Bonovetz, the employee testified he was building a house on the dunes at Park Point for the owner=s son, Peter Kolar, and the injury occurred while pushing a wheelbarrow up a plank walkway.  The tire went down between the planks and he wrenched his low back. (Ex. 22 at 78, 111, 138.)  Judge Bonovetz explicitly found the employee to be Aa most credible witness@ and found the employee did sustain an injury to his low back on September 5, 1990, arising out of and in the course and scope of his employment.  (9/22/98 F&O, findings 10, 13, 58.)

 

At the hearing on remand, the witnesses agreed the employee had been working on Peter Kolar=s house through the summer of 1990 and had not been working in the shop.  (T. Vols. I, II: 108-09, 504, 506, 526.)  The employee testified that on September 5, 1990, he was doing land­scaping on the Lake Superior side of Peter Kolar=s house.  Equipment cannot be driven on the dunes, so a plank walkway had been built.  The employee again testified he was injured pushing a wheel­barrow up a sand dune.  AI was wheeling topsoil up these planks.  They were fairly heavy loads, and you had to run pretty hard at it to get up the hill.  One of the planks separated, the tire went down and the wheelbarrow stopped and I didn=t.@  (T. Vol. I, II: 102-105, 645, 647.)

 

The employee testified he reported the injury the day of the incident or the day after, ­and that he told Renee Nordman he had been injured pushing a wheelbarrow at Peter Kolar=s house.  Shortly there­after, according to the employee, Ms. Nordman came back to him and said they were going to report he was ­pushing a car rather than a wheelbarrow.  The employee sought treat­ment from Dr. Fisher on September 6, 1990.  He testified he told Dr. Fisher the employer was going to report he was pushing a car but in fact he was pushing a wheelbarrow.  (T. Vols. I, II: 106-14, 650-51, Dr. Fisher=s chart note relates the employee was APushing a car up a grade and slipped.@  (Ex. D.)

 

Peter Kolar, Renee Nordman and Dr. Fisher testified, in person, at the hearing on Nov­ember 23, 1999.  Peter Kolar is currently a partner in the Kolar dealership.  He testified he was married on September 1, 1990 and he and his wife had gone to Madeline Island the next day for a honey­moon.  The accommodations proved disappointing and they returned early on September 4th.  Mr. Kolar stated he and his wife had the rest of the week off and stayed at the house on Park Point, spending quiet time together.  He was Aabsolutely@ certain the employee had not worked at the house on September 5, 1990.  (T. Vol. II: 394, 403-04.)

 

Renee Nordman testified she had no independent recollection of any conversation with the employee regarding the September 5, 1990 injury.  Based on the First Report of Injury, she stated the employee had reported the injury on September 7, 1990, and that the employee was using a car pusher when the injury occurred.  She had no recollection of the employee telling her about pushing a wheelbarrow at Peter Kolar=s house.  Ms. Nordman agreed she did not tell the em­ployee Ayou should change@ the first report of injury or the way the accident was reported.  (T. Vol. II: 424-26, 497-98, 512-13.)

 

Dr. Fisher similarly testified he had no recollection of his conversation with the employee on September 6th, and could not remember whether the employee told him that he had injured his back pushing a wheelbarrow.  He agreed he would have put such a statement in his records, but Aprefaced@ his agreement with the statement that in 1990 his notes would have been per­functory, for his own use and focused on the treatment provided.  (T. Vol. II: 467-68, 472-73.)

 

Compensation Judge Erickson found the employee a credible witness, and accepted the employee=s testimony with respect to where and how the September 5, 1990 injury occurred and what he told Ms. Nordman and Dr. Fisher following the injury.  (5/16/2000 F&O, findings 15, 16, 17; mem. at 13.)  The assessment of witnesses= credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), citing Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  It is not the role of this court to make our own evaluation of credibility or the probative value of conflicting testimony.  Rather, we must give due weight to the com­pensation judge=s opportunity to observe the witnesses and judge their credibility.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  Accordingly, a finding based on the credibility of a witness will not be dis­turbed on appeal unless such a determination is clearly and manifestly contrary to the evidence.

 

The employer and insurer argue the employee=s testimony is not believable, maintaining the employee Afalsely accused@ Ms. Nordman and Dr. Fisher Aof acting as accomplices in Mr. Seppo=s fraud.@  (Er-Insr Brief at 8.)  Relying on the First Report of Injury and Dr. Fisher=s chart note, the appellants contend the timing of the employee=s Atheory@ is flawed, arguing the employee saw Dr. Fisher on September 6th, but did not report the injury until September 7th so his story could not be true.  However, the First Report of Injury specifically states the date on which notice was received was A9-5-90.@  The date on which the report was signed is A9-7-90.@  This is consistent with the employee=s testimony.

 

Having heard the employee=s testimony and, at the second hearing, the testimony of the employer and insurer=s witnesses, and having observed the witnesses= demeanor, two compensation judges have found the employee to be a Amost credible witness.@  We have carefully reviewed the entire, extensive record in this case, and see no basis for reversing the compensation judge=s findings regarding the  Sep­tember 5, 1990 injury.  We, accordingly, affirm.

 

2.  Notice of Injury

 

The employer and insurer also appeal the compensation judge=s finding that the employer received sufficient statutory notice of the September 5, 1990 injury.  They assert the employee mis­represented the underlying factual circumstances of his injury, depriving the employer of an op­portunity to conduct a timely investigation.  Having affirmed the compensation judge=s findings that the September 5, 1990 injury occurred at Peter Kolar=s house while pushing a wheelbarrow, and that the employee promptly reported the injury and told Ms. Nordman the facts as the compensation judge accepted them, the judge=s determination that statutory notice was properly given must also be affirmed.^[3]

 

3.  Other Injuries

 

The employer and insurer further argue that because the employee was not credible, the employee=s claim for benefits based on his mid-back injuries, right shoulder injury and left shoulder injury are not compensable.  There is simply no basis for this assertion.

 

The First Report of Injury, Dr. Fisher=s records and the employee=s testimony have been consistent from the beginning with respect to the employee=s July 22, 1991 mid-back (thoracic spine) injury while loading lumber into a company vehicle at Woodruff Lumber.  There has never been any real dispute about whether this injury occurred or how it occurred.  Although the specific circum­stances surrounding the May 19, 1993 injury are less clear, it does appear that the employee did sus­tain a work-related aggravation to his back on that date.^[4]  In any event, there is more than sufficient evidence in the record to support the compensation judge=s determination that the employee sus­tained significant and permanent work-related injuries to the mid-back in 1991 and 1993.

  

The employer and insurer also argue the employee is not entitled to benefits for the right shoulder.  In 1998, Compensation Judge Bonovetz found the employee failed to esta­blish a work-related injury to the right shoulder.  (9/22/98 F&O, finding 35.)  Compensation Judge Erickson re­adopted this finding and it was not appealed.  (6/16/2000 F&O, finding 2.)

 

Finally, the employer and insurer argue that because the employee=s testimony was in­credible and not believable the employee=s claim for a left shoulder injury must fail.  However, at the hearing, all three counsel for the employer and the insurer agreed the March 8, 1994 left shoulder was not disputed and was compensable.  (T. Vol. I: 18, 20, 36, 43, 49, 53.)

 

4.  Low Back Injury

 

The employer and insurer contend the medical evidence demonstrates the employee=s low back injury was not significant and the employee is not entitled to additional compensation as a result of the September 5, 1990 injury.  We are not persuaded.

 

The employee sought chiropractic treatment from Dr. Fisher following the September 5, 1990 injury.  Dr. Fisher took the employee off work through October 8, 1990, when he released the employee to return to work with light duty restrictions.  The employee continued to receive treatment from Dr. Fisher on a gradually decreasing basis through June 24, 1991.  Thereafter, the employee con­tinued to receive periodic treatment as needed from Dr. Fisher for both his low back and mid-back through September 1993.  A report of a functional assessment, performed in February 1994, reflects sig­nificantly reduced range of motion in the lumbar spine, increased low back tension and pain with flexion and extension, and decreased sensation in the right thigh with some sciatica into the right leg.  On September 24, 1994, Dr. Fisher provided a 10.5 percent permanent partial disability rating for the low back.

 

Following the employee=s left shoulder injury on March 8, 1994, the employee began treating with Dr. Thomas E. Kaiser at the Duluth Clinic.  Dr. Kaiser noted the employee had prob­lems, other than his left shoulder condition, for which he was receiving treatment and needed restric­tions, including chronic back problems.  On July 5, 1994, at the request of Dr. Kaiser, the employee was seen by Dr. Matthew Eckman, a physical medicine and rehabilitation specialist at the Duluth Clinic, for an evaluation of his spinal problems.  Dr. Eckman diagnosed a chronic lumbar and thora­cic strain and recommended physical therapy with reconditioning and work hardening.  On October 17, 1994, Dr. Eckman imposed significant restrictions, including no sitting over one-half hour, avoid back stress activities with frequent bending or leaning, and no lifting or carrying over 15 pounds.  The employee continued to receive treatment for his thoracic and lumbar spine under the direction of Dr. Eckman through December 6, 1994. 

 

On April 26, 1995, the employee returned to Dr. Fisher with severe mid-thoracic pain and spasm.  Dr. Fisher referred the employee to Dr. Skip Silvestrini, a physical medicine and rehabili­tation specialist at the Duluth Clinic.  The employee was examined by Dr. Silvestrini on May 24, 1995.  The doctor diagnosed a thoracic/lumbar strain with post-myofascial pain, recommended a con­ditioning program, and did not object to periodic chiropractic treatment for muscle tightness.  The employee underwent surgery for his right shoulder on July 11, 1995, and for his left shoulder on January 25, 1996.  Following the surgeries, the employee received ongoing physical therapy that included treatment for his low and mid-back, under the direction of Dr. Silvestrini.  In about September 1996, Dr. Silvestrini provided light work restrictions, including no lifting over 20 pounds on an occasional basis, no standing more than 4 hours, no sitting more than 3 to 5 hours, no pushing, pulling or climb­ing and no overhead work.

 

The employee experienced increased back symptoms following his return to work on Novem­ber 11, 1996 at Ace Hardware, and on December 6, 1996, Dr. Silvestrini limited the em­ployee to four hours of work a day.  An MRI scan of the lumbar spine, taken on December 26, 1996, revealed degenerative changes at L3-4 and L4-5 without neural entrapment.  By letter report dated  January 15, 1997, Dr. Silvestrini provided a permanency rating of 10.5 percent based on the pre-1993 permanency schedule.  The employee eventually increased his hours to six per day, but continued to experience low back and right leg problems which Dr. Silvestrini attributed to prolonged standing at work.  The employee continued to have periodic exacerbations of his thoracic and low back through the last date of hearing, November 23, 1999.

 

Compensation Judge Bonovetz found the employee sustained a permanent low back condition as a result of September 5, 1990 injury.  Compensation Judge Erickson reached the same conclusion, re-adopting Judge Bonovetz=s findings, and specifically finding the employee was entitled to the wage loss and medical benefits paid and to payment for a 10.5 percent perma­nency for the low back.  As discussed above, there is substantial evidence to support the conclusion that the employee sustained a permanent and significant injury to the low back on September 5, 1990, and we, accordingly, affirm.

 

5.  Refusal of Employment; Failure to Cooperate with Rehabilitation

 

The employer and insurer contend the employee refused suitable offers of employment from the employer, and failed to cooperate with rehabilitation by failing or refusing to pursue jobs in the automotive employment market.  Both Judge Bonovetz and Judge Erickson concluded the employee had fully cooperated with rehabilitation and had not unreasonably refused employment.  Judge Erickson, accordingly, awarded the employee temporary partial disability benefits based on his actual earnings at Ace Hardware.  There is substantial evidence to support the compensation judge=s determination.

 

The employee was assigned a disability case manager in late April 1994, shortly after his March 8, 1994 left shoulder injury.  A vocational assessment was com­pleted on June 20, 1994.  The vocational evaluator noted the employee completed the ninth grade in school.  Testing disclosed a borderline reading level and negligible numerical cognitive skills.  The evaluator suggested exploring work in a hardware store environment, and further recommended the employee pursue a GED.  In July 1994, the case manager contacted Anthony Strong, the supervisor of the Kolar shop, who stated the employee would not be permitted to return to work in the shop unless he was able to return full-time, unrestricted.  The employee remained in medical management, and the file was referred to Barbara Consie-Tekippe, an RN and rehabilitation consultant.  The employee continued to have significant difficulties with his shoulders and back, and was unable to return to work during the remainder of 1994 and 1995.

 

The employee began work on his GED, but had difficulty completing the classes and taking the tests.  An evaluation was completed on December 4, 1995 which indicated the employee had learning disabilities affecting reading, writing and arithmetic (dyslexia and dyscalculia).  The employee was able to complete his GED, with provisions for special testing, in early 1996.

 

Beginning in May 1996, Dr. Silvestrini, who was treating the employee=s back problems, and Dr. Kaiser, who was treating the employee=s shoulders, provided a series of work restrictions.  By September 1996, permanent light-duty restrictions had been imposed, including no work­ing with the arms above shoulder level, occasional lifting up to 20 pounds, no standing more than four hours, no sitting over three to five hours, and no pushing, pulling or climbing.  It was agreed the em­ployee could not return to work as a mechanic.  An active job search was initiated, and on Sep­tember 16, 1996, the employee began working with Nichols Placement Services.  Following a lead provided by the placement vendor, the employee interviewed for and was offered a job as a clerk in the tool department at Ace Hardware on October 31, 1996.  Ms. Consie-Tekippe, Mr. Nichols and the insur­ance claims adjuster approved the job, and the placement file was put on hold.  The employee began work at Ace Hardware on November 11, 1996.

 

Both the placement service records and the testimony of Ms. Consie-Tekippe indicate the employee not only fully cooperated with job search efforts, but did an extraordinary job of looking for work.  (T. Vol. II: 551-552, 556; Ex. 28.)   The employer and insurer argue, however, that the em­ployee was not interested in working in the automotive field and failed or refused to pursue employ­ment in the automotive employment market.  Nothing could be further from the truth.  Although the employee advised the placement ven­dor he was not sure he wanted to remain in the auto industry, the evidence indicates that de­spite his reservations he followed through and actively pursued job leads in the automotive field.  These included a sales position with Economy Garage, and two inter­views for a service writer posi­tion with Larson Chevrolet.  The employee also followed up with auto part ser­vice and sales leads, even though he was aware that the jobs were outside his restric­tions, a fact that was later con­firmed by the placement vendor.  In addition, the evidence indicates that auto parts jobs paid less, or at least no more, than he was making at Ace Hardware in 1999.  (T. Vols. I, II: 145-46, 191-92, 364, 589; Ex. 19; Ex. 26; Ex. 28.)

 

The employer and insurer also contend the employee refused job offers from the employer within his restrictions and at an income at least equal to that which he was making when working at Kolar Buick as a mechanic.  We disagree.  Both the employee and Bernie Kolar agreed that Mr. Kolar offered the employee work as an automobile salesperson.^[5]  The employee testified the offer was made during the time he was doing a job search, and he turned the offer down.  (T. Vol. I: 143-44, 189; Ex. 22 at 129-131.)  The employee doubted he could succeed as an auto salesperson, ex­plaining it was a com­mission job ^[6] and he did not think he would be good at selling cars,  he didn=t think he could physically handle the job, and he was concerned about problems because of his dys­lexia/dyscalculia.  (T. Vol. I:  144, 189-191; Ex. 22 at 96-97, 133, 135-36.)  Ms. Consie-Tekippe was aware the employer had made an Aoffer of sorts,@ but stated no written or verbal offer was conveyed to her.^[7]  She did not agree that an auto sales­person position was necessarily appropriate for the em­ployee.  Ms. Consie-Tekippe observed, in particular, that the employee=s learning disability could make the written and mathematical requirements very difficult for him.  (T. Vol. II: 552, 563, 565-66, 570-71.)  Dana Butler, the employee=s last case manager, and Lee Shaefer, a placement specialist, also expressed reservations about the physical appropriateness of the job and whether the employee would be able to actually make substantial earnings as a car salesman. (T. Vol. II: 288, 358, 361).  Based on the evidence, the compensation judge reasonably concluded a job as an auto salesperson was not appropriate work for the employee.

 

There is also no dispute that the employee, Bernie Kolar and Dave Hammer discussed  a potential position as a service manager or auto body supervisor with Kolar Buick during the job search period.  However, the job was dependent on training and the purchase of another dealership.  The purchase was not final­ized and no offer for such a position was ever made.  (T. Vols. I, II: at 146, 554-555, 576; Ex. 26; Ex. 23 at 18.)

 

There is substantial evidence to support the compensation judge=s findings that the employee cooperated with rehabilitation efforts and did not fail to pursue or refuse suitable em­ploy­ment.  We, accordingly, affirm.

 

6.  Dismissal of Kolars, Individually

 

The insurer, Western National Insurance Group, filed a cross-appeal solely from the in­clu­sion and then dismissal of the Kolars, individually, in this proceeding.  On November 10, 1999, Com­pensation Judge Erickson issued an Order for Consolidation.  The order added AKolars, indivi­dually,@ to the caption, with no explanation.  There was no motion or order for joinder of the Kolars,  individually.

 

At the hearing on November 12, 1999, James Wade appeared on behalf of the employer and insurer, Larry Peterson made an appearance on behalf of the insurer, separately, and Rory Foley appeared on behalf of the Special Compensation Fund.  Michael Tierney appeared on behalf of Kolar Buick, Inc.  When questioned by the compensation judge, Mr. Tierney replied that the Kolars were not named as parties individually, and he was appearing solely on behalf of the business, Kolar Buick.  Mr. Foley agreed the Kolars, individually, had not been joined.  (T. Vol. I: 8, 22.)

 

We agree that the compensation judge improperly added the Kolars, individually, to the caption of this case, and committed an error of law in dismissing the Kolars, individually, when the Kolars were not joined as parties and were not represented at the hearing.  We accordingly, modify the caption to remove Kolars, individually, and vacate that portion of Order 7 dismissing claims against the Kolars, individually.