FERNANDO CORREA, Employee, v. WAYMOUTH FARMS, INC. and ST. PAUL MERCURY INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 21, 2002

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY; JOB SEARCH - SUBSTANTIAL EVIDENCE.  The employee=s status as an undocumented alien does not automatically render him unable to conduct a reasonable and diligent job search as a matter of law, but is a factor for the compensation judge to consider.  In this case, substantial evidence supports the conclusion that the employee=s undocumented alien status did not prevent him from conducting a reasonable and diligent job search.

 

Affirmed.

 

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

Compensation Judge:  Peggy A. Brenden.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee engaged in an adequate job search where the employee has not shown that he is legally able to work in this country.  We affirm.

 

BACKGROUND

 

Mr. Fernando Correa, the employee, was born in Mexico and immigrated to the United States in 1987 with a visa and passport, and has resided in the United States since that time.  The employee is not a United States citizen and does not have a United States work permit.  The employee has been able to find work since that time, and has often worked two jobs.  He began working on a full-time basis for Waymouth Farms, the employer, in November 1999.  On March 6, 2000, the employee, sustained an admitted low back injury while working in a warehouse as an order picker.  On that date, the employer was insured for workers= compensation liability by St. Paul Companies, the insurer.  At the time of his injury, the employee also worked part-time at Schlotsky=s Deli.  The parties stipulated that the employee=s weekly wage earned from both employers was $500.00.

 

The employee was ultimately diagnosed with herniated discs at three levels.  He underwent a L4-5 microdiscectomy on July 20, 2000.  The employer and insurer have paid temporary total disability benefits between June 8 and December 18, 2000, temporary partial disability between December 19, 2000, and February 7, 2001, ongoing temporary total disability benefits thereafter, and  medical expenses.  The employer also provided rehabilitation assistance; the employee began consulting with Norman Mastbaum, a qualified rehabilitation consultant [QRC], in September 2000.

 

Following surgery, the employee returned to work for the employer in December 2000 with restrictions, which the employer accommodated, but he was not able to work more than five hours per day.  The employee=s second employer would not allow him to return to work until he was released without restrictions.  The employer and insurer commenced payment of temporary partial disability benefits, based on the employee=s reduced earnings.  The employee continued working part-time for the employer until February 7, 2001.  On that date, the employer informed the employee that the Immigration and Naturalization Service had advised them that the social security number he previously had provided to the employer did not match his name or birth date and that the alien registration number he had provided was invalid.  The employer asked the employee to produce documentation that he had a valid United States work permit and advised him that until he provided proper documentation, he would be unable to continue to work there.  The employee informed the employer that he could not produce any documentation other than what he had previously provided to the employer, and his employment was terminated.  Thereafter, the employee looked for other employment.  He was offered work by a previous employer, but that employer could not accommodate the employee=s work restrictions.  The employee=s QRC=s report from February 2001 indicates that the employee was looking for work on his own and that the QRC continued to provide medical management.

 

On February 21, 2001, the employer and insurer filed a notice of intention to discontinue the employee=s temporary total disability benefits, claiming that the employee was not legally able to work.  The employee objected, and filed a claim petition for recovery of temporary total disability benefits from and after February 13, 2001.  The employee continued to have low back and bilateral leg pain, and was referred to Dr. Sunny Kim for a second surgical opinion.  On March 6, 2001, Dr. Kim recommended a two-level decompression fusion surgery, and took the employee off work until the surgery could be performed.

 

On April 3, 2001, the employee filed a medical request for approval of the lumbar decompression and fusion surgery, which the employer and insurer denied.  An administrative conference was held on April 16, 2001, to address the discontinuance issue; the discontinuance was denied.  The compensation judge concluded that the employee was restricted from work by his treating physician and therefore the lack of legal documentation did not establish reasonable grounds to discontinue payment of temporary total disability benefits.  On May 25, 2001, the employer and insurer filed a petition to discontinue benefits.  The medical request and the petition to discontinue were consolidated, and a hearing was held on August 22, 2001.  The compensation judge granted the request for surgery and denied the petition to discontinue benefits.  The compensation judge found that the employee had made a diligent search for work between February 7, 2001, when his employment was terminated, and March 6, 2001, when he became medically unable to work as a result of his work injury.  The compensation judge also found that the employee had been medically unable to continue working through the date of hearing.  The employer and insurer appeal the compensation judge=s denial of their petition to discontinue temporary total disability benefits for the time period limited to February 7, 2001, until March 6, 2001. 

 

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, 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.

 

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers' Compensation Court of Appeals may consider de novo.  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

At issue on appeal is whether the employee is entitled to temporary total disability benefits between February 7 and March 6, 2001.  The employer and insurer do not dispute that the employee, as an undocumented alien, is generally entitled to workers= compensation benefits under Minnesota law, pursuant to Minn. Stat. ' 176.011, subd. 9, and Gonzalez v. Midwest Staffing, 59 W.C.D. 207 (W.C.C.A. 1999), summarily aff=d. (Minn. Aug. 2, 1999).  The employer and insurer do not dispute that the employee is entitled to temporary total disability benefits after March 6, 2001, when he was medically unable to return to work.   However, they argue that the employee is not entitled to a specific type of benefit -- temporary total disability benefits from February 7, 2001, through March 6, 2001 -- as a matter of law.  The employer and insurer argue that, because the employee is not legally able to work in the United States, he cannot perform a reasonable and diligent job search as a matter of law, because no amount of job search could ever produce a job that the employee could validly hold.

 

Temporary total disability is found when the employee's physical condition, together with his training, experience, and type of work available in his community cause the employee to be unable to obtain anything but sporadic employment at an insubstantial wage.  Fredenburg v. Control Data Corp., 311 N.W.2d 860, 34 W.C.D. 260 (Minn. 1981).  Temporary benefits can be discontinued if the employee does not conduct a diligent job search.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  A job search must be evaluated in light of all the facts and circumstances of a case.  Id. at 734, 40 W.C.D. at 956.  The determination of whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).

 

In Gonzalez, this court held that an undocumented alien is not excluded from the definition of employee under Minnesota workers= compensation statutes for purposes of eligibility for workers= compensation benefits.  Gonzalez, 59 W.C.D. at 212.  The court also noted that an employer may raise defenses regarding the employee=s ability to conduct a reasonable and diligent job search since the employer cannot offer suitable gainful employment to an undocumented alien and the employee might be unable to find other employment as an undocumented alien.  Id. at 210.  While the employer and insurer may raise this issue as a defense, the employee=s status as an undocumented alien does not automatically render the employee incapable of conducting a reasonable and diligent job search as a matter of law, and therefore does not automatically bar the employee from receiving temporary total disability benefits as a matter of law.  Nor does the defense regarding the employee=s ability to conduct a reasonable and diligent job search Ahave any bearing on the question of whether the individual may qualify as an >employee= in the first place.@  Id. at 210.  However, the employee=s status as an undocumented worker remains a factor for the compensation judge to consider in determining whether the employee has made a reasonable and diligent job search. 

 

In this case, the employee has shown that he has worked in this country since 1987, and had worked for the employer since November 1999.  He cannot read or write English, but speaks and understands basic conversational English.  Before his March 2000 work injury, the employee did not have any low back symptoms or limitations.  At the time the employee was fired by the employer, he was working under restrictions caused by his work injury.  In the few weeks after the employee was terminated from his employment with the employer and before the employee was taken off work by his doctor, the employee continued to have significant back and leg pain, and continued to cooperate with his QRC to the limited extent that rehabilitation was authorized by the employer and insurer, that is, with the QRC monitoring the employee=s medical management.  The employee looked for work on his own, and was offered work by a previous employer, but that employer could not accommodate the employee=s restrictions.

 

The compensation judge concluded that, A[g]iven the employee=s significant physical restrictions, limited language skills and lack of professional rehabilitation assistance, his personal job search efforts meet the >reasonable and diligent= requirements of the law.@  (Memo. p. 5.)  The compensation judge also concluded that the evidence failed to establish that the employee=s lack of legal documentation was a significant factor since February 7, 2001, since a lack of documentation had not prevented the employee from working in the United States since 1987 and since a lack of documentation had not prevented the employer in this case from hiring the employee.  Substantial evidence, including the employee=s testimony concerning his work history, supports the conclusion that the employee=s undocumented alien status did not prevent him from conducting a reasonable and diligent job search.  We therefore affirm the compensation judge=s denial of discontinuance of temporary total disability benefits from February 7, 2001, until March 6, 2001.