MARK G. JOHNSON, Employee, v. INVER GROVE FORD and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 20, 2002

                                                                             

HEADNOTES

 

REHABILITATION - COOPERATION; JOB SEARCH - SUBSTANTIAL EVIDENCE; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(g).  Where it was in keeping with the focus of job search plans, the physical requirements of the job contemplated under those plans, and the restrictions placed on the employee by his doctor, the compensation judge=s conclusion that the employee=s refusal to sign the JPPA was reasonable and that the employee was not currently required to search for employment was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge:  Peggy A. Brenden.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s conclusions that the employee=s refusal to sign a certain Job Placement Plan and Agreement was reasonable and that no job search was required during the benefits period at issue.  We affirm.

 

BACKGROUND

 

On February 9, 2001, Mark Johnson [the employee] sustained an admitted work-related injury to his back and neck when he slipped and fell on ice in the lot while working as a car salesman for Inver Grove Ford [the employer].  At the time of his injury, the employee had worked for the employer for about six years, having sold new and used Fords for other dealerships for about eight years prior to his employment with the employer.  The employee was thirty-eight years old on the date of his injury and was earning a weekly wage of at least $1,125.00Benough to entitle him to the maximum compensation rate of $750.00.

 

On February 12, 2001, shortly after his injury, the employee was seen at the Allina Medical Clinic by Dr. John Harapat.  Dr. Harapat examined the employee, obtained x-rays, and diagnosed a cervical and lumbar strain.  The employee was given a prescription for Flexeril and Naprosyn, and restrictions were recommended.  The employee missed two days of work at that time.  About two weeks later, on February 28, 2001, the employee began treating with Dr. Robert Roloff at Inver Grove Chiropractic.  Dr. Roloff removed the employee from work for one week in March, but otherwise the employee continued to work full time for the employer until early April 2001, when he resigned for reasons unrelated to his injury.  Within a week of leaving the employer, the employee began a similar full-time sales position with American Ford.  He worked at American Ford for roughly two weeks, after which he left that employment also, because the prolonged standing on the job was aggravating his low back condition.  The employer and its insurer recommenced payment of temporary total disability benefits to the employee on April 27, 2001.

 

The insurer referred the employee for a rehabilitation consultation on May 9, 2001.  In her initial evaluation report dated May 14, 2001, qualified rehabilitation consultant [QRC] Stacie Motzko determined that the employee was eligible for statutory rehabilitation services, noting that A[i]t is undetermined at this time whether [the employee] will be capable of engaging in his pre-injury occupation as a car salesman.@  QRC Motzko noted further that the employee did not graduate from high school and does not have a GED.  The employee reported to her that he had no further education or training and that he had spent the majority of his work history as a car salesman.

 

At about this same time, Dr. Roloff completed a Report of Work Ability on May 11, 2001, indicating that the employee was able to work with restrictions against prolonged standing and against lifting over twenty-five pounds, so long as he could frequently change positions.

 

On June 12, 2001, the employee met with QRC Motzko and Kevin Loy, an employment services consultant, to complete a Job Placement Plan and Agreement [JPPA].  The JPPA, completed on that date, required the employee to seek full-time employment on a full-time basis, to submit eight to ten applications or resumes with cover letters to prospective employers on a weekly basis, and to make eight to ten initial contacts or cold calls to prospective employers on a weekly basis.  The vocational areas specified for the employee=s job search were automobile sales and drywall sales.

 

According to the QRC=s and the employee=s later testimony, the employee refused to sign the JPPA because (1) he did not feel that he was physically able to work full time; (2) auto dealerships did not hire part-time salesmen, and an application for part-time work might impact an application for full-time work at a later date; (3) he wanted to work for a Ford dealership because of his past experience and customer contacts; and (4) he did not want to apply for work that he could not physically tolerate.

 

According to the QRC=s case progress record, an R-2 Rehabilitation Plan was prepared by the QRC on or about June 15, 2001.^[1]  According to the QRC=s later testimony, the rehabilitation plan called for return-to-work assistance with a different employer as well as medical management of the employee=s injury.  QRC Motzko testified that, after the R-2 was signed, rehabilitation assistance in this case focused primarily on medical management.  In status reports prepared on July 3, 2001, both Ms. Motzko and Mr. Loy reported that employment services were placed on hold until the employee completed an orthopedic consultation on July 25, 2001.

 

On July 25, 2001, the employee was seen by orthopedist Dr. James Schwender at the Twin Cities Spine Center.  Dr. Schwender obtained a history from the employee, performed a physical examination, and reviewed the employee=s initial plain x-rays and a subsequent MRI of the lumbar spine performed on May 30, 2001.  Dr. Schwender diagnosed lumbar degenerative disc disease and recommended an aggressive program of physical therapy to include a work hardening plan.  He released the employee to part-time work, initially four hours per day, increasing as tolerated.  His restrictions on the employee=s activities were similar to those issued earlier by Dr. Roloff.

 

Shortly after the employee=s examination by Dr. Schwender, QRC Motzko arranged for the employee to begin a physical therapy program at Physician=s Neck and Back Clinic.  At about this same time, the insurer=s claim representative contacted the employee to discuss the employee=s release to return to work.  The claim representative directed the employee to contact Kevin Loy in order to commence job search activities.  The employee evidently did not contact the placement vendor as requested, and the insurer filed a Notice of Intention to Discontinue [NOID] on August 7, 2001.  The insurer indicated on the NOID that benefits were being discontinued for the following reasons:

 

The employee has been given restrictions.  The employee refuses to cooperate in searching for appropriate work within his physical restrictions and signing the job placement plan agreement.  Therefore, temporary total benefits will cease.

 

The employee was treated at the Physician=s Neck and Back Clinic between August 15, 2001, and October 1, 2001.  According to a discharge report signed by Dr. Mark Rotty, the employee demonstrated a poor response to rehabilitation in their program.  Dr. Rotty=s final diagnosis was cervical strain, mechanical low back pain, lumbar degenerative disc disease, and deconditioning syndrome.  He placed restrictions on the employee=s activities and referred the employee back to Dr. Schwender.

 

On October 1, 2001, the employee filed an Objection to Discontinuance, claiming entitlement to temporary total disability benefits continuing from August 3, 2001, the date benefits were discontinued by the insurer.

 

The employee returned to see Dr. Schwender on November 7, 2001, with ongoing symptoms, predominately low back pain at that time.  Because of the employee=s ongoing symptoms, Dr. Schwender suggested an epidural injection.  Because the employee also had substantial neck stiffness and headaches, the doctor also referred the employee for a cervical MRI scan.  Dr. Schwender took the employee off work on November 7, 2001, and the insurer recommenced payment of temporary total disability benefits as of that date. 

 

The employee=s Objection to Discontinuance came on for a hearing before a compensation judge on December 18, 2001.  Evidence presented at hearing included the employee=s medical and rehabilitation records and the testimony of claim representative Shawn Stricker, QRC Stacie Motzko, employment consultant Kevin Loy, and the employee.  In a Findings and Order issued January 10, 2002, the compensation judge concluded that between April 2001 and November 6, 2001, the employee=s neck and low back symptoms worsened slightly.  She also concluded that during this period of time the employee was not capable of full time work.  She concluded also that the employee=s refusal to sign the JPPA calling for a full-time job search for full-time work was reasonable in light of his symptom level and the recommendations of Dr. Schwender.  Finally, the judge concluded also that the employee performed no job search during the period of August 4, 2001, through November 6, 2001, but that, under the circumstances of this case, no job search was required during that period.  Consequently, the judge ordered the employer and insurer to pay temporary total disability benefits to the employee during the disputed period of August 4, 2001, through November 6, 2001.  The employer and insurer appeal.

 

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

 

On appeal, the employer and insurer contend that the compensation judge committed an error of law when she awarded temporary total disability benefits to the employee for a period in which he was released to return to work with restrictions and failed to diligently search for work within those restrictions.  The employer and insurer rely upon Minnesota Statutes ' 176.101, subdivision 1(g), which provides in part that A[t]emporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee=s physical restrictions.@  Minn. Stat. ' 176.101, subd. 1(g).  At Findings 8 and 9, the compensation judge concluded that a job search was not necessary during the period at issue, because the only JPPA being proposed at that time was that proposed in June 2001, which required a full-time search for full-time work, contrary to restrictions issued by Dr. Schwender on July 25, 2001.  The compensation judge found it reasonable for the employee to refuse to sign that JPPA (and so, A[u]nder the circumstances of this case,@ to suspend job search efforts), explaining in her memorandum that, Aat the time benefits were discontinued, the employee was not capable of full time job search or full time work,@ and  A[t]he employee was given no reason to believe work search expectations had changed since June, 2001.@   The employer and insurer argue that it is undisputed that the employee=s total disability had ended during the period in question and that the compensation judge did not have authority under the statute to relieve the employee of the obligation to search for work during the benefits period at issue.  We are not persuaded.

 

The requirement in the statute cited is that  A[t]emporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee=s physical restrictions.@  Although the insurer=s claims adjuster did testify that she did not reiterate a necessity of searching for full-time work when, subsequent to Dr. Schwender=s July 2001 report, she asked the employee to recontact Mr. Loy regarding job search, the claims adjuster also testified clearly that the insurer was still planning to abide by Dr. Roloff=s June 2001 restrictions.  In this context, is was not at all unreasonable for the compensation judge to conclude that A[t]he employee was given no reason to believe work search expectations had changed since June, 2001.@  Nor was it improper under the statute for the judge to conclude that the employee=s suspension of job search efforts in this context was reasonable and permissible, given the employee=s evident cooperation with rehabilitation efforts in the past and given the relative brevity of the benefits period at issue.^[2]  Cf. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (a diligent job search Ais a search that is reasonable under all the facts and circumstances@).  As a general rule, once a rehabilitation plan is developed, the issue is whether the employee is making a good faith effort to participate in that plan.  See, e.g., Mayer v. Erickson Decorators, 372 N.W.2d 729, 38 W.C.D. 107 (Minn. 1985).

 

Given the facts and circumstances peculiar to this case, it was not unreasonable for the compensation judge to conclude that the employee=s refusal to sign the JPPA was reasonable; nor was it unreasonable for the judge to conclude that job search was currently not required in this case, given the focus of job search plans, the physical requirements of the job contemplated under those plans, and the restrictions placed on the employee by his doctor.  Accordingly, the decision of the compensation judge is affirmed.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.