ROGER G. EARLEY, Employee/Appellant, v. HARRIS COS. and FEDERATED MUT. GROUP, Employer-Insurer, and MINNESOTA DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 29, 2002

 

 

HEADNOTES

 

JOB OFFER - REFUSAL.  Substantial evidence supported the compensation judge=s decision that the employee unreasonably refused work that the employee was physically capable of performing.

 

Affirmed in part and modified in part.

 

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

Compensation Judge:  Jeanne E. Knight.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the judge=s finding that the employee unreasonably refused an offer of physically suitable work and that the employee did not make a reasonably diligent job search.  We affirm in part and modify in part.

 

BACKGROUND

 

The employee was working for Harris Companies [the employer] as a pipe fitter on July 21, 2000, when he sustained a work-related injury to his neck, left shoulder, and both elbows. He subsequently treated with Dr. Vijay Eyunni, who initially prescribed medications and physical therapy and restricted the employee from overhead work.  On August 14, 2000, Dr. Eyunni recommended additional restrictions regarding lifting/carrying, pushing/pulling, bending/twisting/turning, and ladder climbing.  The employer provided light-duty work to the employee.  On September 29, 2000, the employee received a steroid injection in his elbow^[1] and had complete resolution of his elbow symptoms.  About a week later, on October 6, 2000, the employee was released to return to work without restrictions.  He was subsequently laid off from his position with the employer.

 

The employee sought no additional medical treatment until February 2, 2001.  At that time, he returned to Dr. Eyunni complaining of tenderness over the right lateral epicondyle.  No restrictions were placed on his activities but the employee was referred to orthopedist Dr. Larry Stern.  On February 7, 2001, Dr. Stern performed a steroid injection on the employee=s right elbow.  Also in early February, the employee began work for Phalen and Kimball as a general foreman/supervisor.  He returned to Dr. Stern on June 6, 2001.  At that time, Dr. Stern issued restrictions regarding lifting/carrying, pushing/pulling, and overhead reaching, and he reiterated these restrictions on June 14 and 27, 2001.  The employee continued to work for Phalen and Kimball through mid to late July 2001.^[2] 

 

In July of 2001, the employer learned that the employee was being laid off from employment with Phalen and Kimball and had restrictions on his work activities.  On July 24, 2001, the employer made a written job offer to the employee to return to light-duty work as a fabrication welder.  The job offer indicated that recent remodeling to the fabrication shop, including the addition of overhead hoists and positions, would make it possible for the employee to use his welding and other trade skills without doing any heavy lifting.  The employee was also informed that Athere is always someone available to help you if needed.@  A copy of Dr. Stern=s June 27, 2001, restrictions were attached to the job offer.  The employee was directed to contact Jack O=Brien, director of field services, if he was interested in accepting the position. 

 

The employee contacted Mr. O=Brien on July 26, 2001, and indicated that he would return to work on July 30, 2001.  However, the employee did not return to work on July 30, 2001, instead calling Mr. O=Brien to say that he would not return to work unless he received foreman wages and a company truck.  Mr. O=Brien informed the employee that he would not receive foreman wages or a company truck.  The employee never reported for work.

 

The employee underwent left shoulder surgery on November 27, 2001, to repair a partial-thickness tear of the rotator cuff with SLAP lesion and clavicular degenerative joint.  He was released to return to work with restrictions on February 7, 2002.  On March 20, 2002, Dr. Stern gave the employee a three-month restriction against full overhead use of his left arm but opined that, Aorthopedically, he has reached maximum medical improvement as of this date.@

 

On September 10, 2001, the employee filed a claim petition, seeking temporary total and temporary partial disability benefits and rehabilitation services.  The matter proceeded to hearing and, in a decision filed on May 28, 2002, the compensation judge found, in part, that the job offered to the employee on July 24, 2001, was physically appropriate, that the employee=s refusal of the job offer was unreasonable, and that the employee was not entitled to temporary total disability benefits from July of 2001 through November 26, 2001.  The judge also found that the employee had not performed a reasonable and diligent job search between February 7, 2002, and the date of hearing and that temporary total disability benefits were not payable during that period.  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

 

1.  Suitability of the July Job Offer

 

The employee contends that the compensation judge erred in finding that the offered job was physically suitable.  The employee contends that his prior experience with that type of work and the advice of his treating doctor led him to decline the offered job.  We note initially that there is no indication in any of the records in evidence that the employee ever discussed the offered job with any doctor.  Secondly, the compensation judge found credible the testimony of Lisa Dibirdik and John O=Brien, who indicated that the employee turned down the job because he wanted to be paid foreman wages and have a company truck.  By implication, therefore, the compensation judge found the employee=s testimony -- that he refused the job because he did not think he could physically perform the work -- to be lacking in credibility.  Assessment of a witness=s credibility is a unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

 

The employee also contends that the job offer was not sufficiently specific and did not allow him to make an informed decision.  While the job offer did not list duties or specify the equipment that the employee would be expected to use, the employee testified that he was familiar with the offered job.  Lisa Dibirdik, a workers= compensation specialist for the employer, testified that the offered job was a job that the employee had done before.   

 

There is substantial evidence in the record to support the judge=s finding that the employee was physically able to perform the offered job.  Specifically, independent medical examiner Dr. Jeffrey Husband testified by deposition that the light-duty job offered to the employee in July of 2001 was physically suitable.^[3]  On cross examination, Dr. Stern testified that the offered job would be physically suitable if the employee had to hold a hand grinder or a welding gun only occasionally.^[4]  Mr. O=Brien testified that, typically, welders in the fabrication shop use a V stand or arm rest to support the welding gun and that two hands are used on the hand grinder.  He also testified that additional modifications to the job could have been made if necessary.

 

The judge=s finding that the employee unreasonably refused an offer of physically suitable employment is therefore affirmed.  As it is evident that the job offer also constitutes Againful employment,@ the judge=s denial of temporary total disability benefits thereafter is also affirmed.  Minn. Stat. ' 176.101, subd. 3(1)(i).^[5]

 

2.  Reasonable and Diligent Search for Work

 

The employee contends that the compensation judge erred in finding that the employee did not perform a reasonable and diligent search for work after February 7, 2002, erring also in this regard in that the employee was not claiming temporary total disability benefits after March 5, 2002, but rather was claiming temporary partial disability benefits based on the difference between his weekly wage on the date of injury and the wage he earned at Peterson Mechanical.

 

The employee=s arguments regarding temporary total disability benefits are moot, as we have affirmed the judge=s finding that the employee refused an offer of gainful employment that the employee could do in the employee=s physical condition.  Pursuant to Minn. Stat. '176.101, subd. 3(1)(i), once temporary total disability compensation ceases for refusal of an offer of physically suitable, gainful work, Ait may not be recommenced.@

 

The employer and insurer, in their brief, concede that there was no issue regarding temporary total disability from March 5, 2002, to the date of hearing, in that the employee returned to work on March 5, 2002.  The employer and insurer have raised no arguments as to why the employee would not be entitled to temporary partial disability benefits based on his wages at Peterson Mechanical.  As the employee has restrictions on his employability that are related to his work injury, he is entitled to temporary partial disability benefits based on his earnings at Peterson Mechanical.  See Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995) (a job search is not a prerequisite to temporary partial disability benefits).  The judge=s findings are modified accordingly.