LANCE STUEVEN, Employee/Appellant, v. VOYAGEUR PRESS, INC., and CNA COMMERCIAL INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 31, 2002

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET.  Substantial evidence supports the com­pensation judge=s determination that the employer and insurer established reasonable grounds to discontinue temporary total disability benefits effective June 11, 2001, based on his findings that the employee had withdrawn from the labor market to pursue college or university courses and was unavailable to participate in rehabilitation efforts.

 

Affirmed in part and vacated in part.

 

Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.

Compensation Judge:  Bernard Dinner

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s Findings and Order discon­tinuing temporary total disability benefits effective June 11, 2001.  We affirm in part and vacate in part.

 

BACKGROUND

 

Lance Stueven, the employee, began working as a national sales manager for Voyageur Press, Inc., the employer, in January 1997.  At that time, the employee had a two-year asso­ciate of arts degree in social sciences.  While working for the em­ployer, the employee continued his education, taking one night class a week each semester, pursuing a ministerial degree at North­western College in St. Paul, Minnesota. 

 

On January 15, 1999, the employee sustained a personal injury to his low back while working for the employer.  The employer and its insurer, CNA Commercial Insurance Company, accepted liability for the employee=s personal injury and paid the employee=s medical expenses and permanent partial disability benefits.  Following his injury, the employee continued to work for the employer but eventually resigned on June 1, 2000.  At that point, the employee had completed a four-year bachelor of science degree in ministries.  The employee testified that after leaving the employer he continued to take one class per semester, including a class in the summer, from June 2000 until January 8, 2001.

 

In October 2000, the insurer retained Cathy Carlson, a qualified rehabilitation con­sultant (QRC) with Concentra Managed Care Services, to provide rehabilitation services to the em­ployee.  On December 6, 2000, Ms. Carlson completed a Rehabilitation Consultation Report stating the employee was eligible for rehabilitation services.  In an initial rehabilitation report dated Decem­ber 7, 2000, the QRC stated that, since June 1, 2000, the employee had been a full-time student in an MBA program at the College of St. Thomas and a part-time student at Hamline University in a MA management program.  In January 2001, Ms. Carlson filed a Rehabilitation Plan with a goal of a return to work with a different employer. 

 

On January 8, 2001, the employee underwent a lumbar fusion at the L4-5 level.  The employer and insurer then commenced payment of temporary total disability benefits.  On April 3, 2001, Dr. Bruce J. Bartie, the employee=s treating physician, released the employee to return to work subject to a ten-pound lifting restriction, with limitations on repetitive bending, lifting and reaching.  The employee was released to return to work four hours per day, with an increase of two hours per week until he returned to full-time employment.  The employee had been enrolled in school for winter semester, but following his January 8, 2001 surgery, withdrew from class due to physical de­mands and problems associated with the surgery.  The em­ployee testified that following Dr. Bartie=s release to return to work on April 3, 2001, he sought work consistent with his restrictions.

 

On April 9, 2001, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits (NOID), asserting the employee had voluntarily terminated his position with the employer to go back to school, and that the employee had been released to return to work four hours a day effective April 2, 2001, but was not currently working.  The case proceeded to an administrative conference on May 21, 2001 following which a compensation judge denied the employer and insurer=s request to discontinue benefits.  The employer and insurer then filed a Peti­tion to Discontinue Benefits on June 7, 2001, stating they had paid temporary total disability benefits from January 8, 2001, the date of the employee=s surgery, through the present date.  They alleged the employee voluntarily terminated his employment with the employer on June 1, 2000, was released to return to work with restrictions on April 2, 2001, and contended the employee had removed him­self from the labor market and any current wage loss was not causally related to any disability resulting from the personal injury.

 

At some point, the employee enrolled in two daytime classes at the University of Minnesota.  By letter dated June 9, 2001, the employee advised Ms. Carlson that he had Ascheduled [himself] with a class load this month, to try and get back into the swing and keep move [sic] for­ward.  Therefore, I am gone for the next few weeks and because of the in­tensity of these classes I need to attend, otherwise too much is missed and makeup is virtually impossible.  You mention two times for a meeting and I am making this in written form what my schedule is so we don=t have any misunderstandings.@  (Pet. Ex. D.)  By letter dated June 11, 2001, Ms. Carlson acknowledged the employee=s June 9, 2001 letter and stated her intention to initiate vocational rehabilitation services, including job placement services through a job placement specialist.  Ms. Carlson further stated, AI understand from your letter you are unavailable at the present time for vocational rehabilitation services.  I would appreciate it if you would let me know at what time you would be available, so that we could schedule and begin the process as soon as possible.@  (Pet. Ex. A.)

 

On June 11, 2001, the employer and insurer filed a second NOID, stating, AThe employee is unwilling to make himself available to participate in vocational rehab efforts as per his letter of 6/7/01.@  The letter referred to in the NOID was the employee=s June 9, 2001 letter to Ms. Carlson.  Following an administrative conference on August 15, 2001, the employer and insurer were allowed to discontinue temporary total disability benefits.  The employee then filed an Objection to Discontinuance.

 

A hearing was scheduled for October 11, 2001 on the Petition to Discontinue.  At the hearing, the parties agreed to submit to the compensation judge for determination issues relating both to the Petition to Dis­continue and the June 11, 2001 NOID.  In a Findings and Order filed October 18, 2001, the com­pensation judge found the employee voluntarily withdrew from the labor market to pursue college or university courses.  The compensation judge further concluded the employee was unavailable to participate in rehabilitation efforts.  Accordingly, the compensation judge permitted discontinuance of temporary total disability benefits after June 10, 2001.  The employee appeals.

 

DECISION

 

The employer and insurer alleged two separate bases for discontinuing the employee=s temporary total disability benefits.  In their June 7, 2001 petition to discontinue, they contended the employee=s wage loss was not causally related to any disability resulting from the personal injury and that the employee removed himself from the labor market.  In a NOID served on the employee and filed June 11, 2001, the employer and insurer contended the employee failed to cooperate with rehabilitation.  The compensation judge accepted both assertions and discontinued the employee=s temporary total disability benefits effective June 11, 2001.  On appeal, the employee contends both determinations are unsupported by substantial evidence.  The employee argues the record clearly indicates he sought employment within his restrictions upon being released to work by Dr. Bartie on April 3, 2001.  Further, the employee asserts he was unavailable for rehabilitation services for only a short period of time and did not refuse to cooperate with vocational rehabilitation.  Accord­ingly, the employee asks this court to reverse the compensation judge=s discontinuance of temporary total disability benefits.

 

The employee testified that following his surgery he had to cancel his classes because he was physically unable to attend school.  Following his release to return to work by Dr. Bartie on April 3, 2001, the employee testified he looked for work in publishing and work that was related to his degree in ministries.  The employee, however, introduced no job search records for any period of time prior to June 11, 2001.  Nor did he remember the names of any employers he contacted other than the Salvation Army sometime in March or April.  At some point, the employee enrolled in two daytime classes at the University of Minnesota.  On June 9, 2001, the employee wrote Ms. Carlson saying he would be unavailable for the next few weeks because of his classes.

 

Ms. Carlson testified that she often had difficulty contacting the employee.  The QRC spoke with the employee on April 3, 2001, but, despite having left many messages thereafter, did not again speak with the employee until an administrative conference on May 21, 2001.  Ms. Carlson testified the employee reported he was conducting a job search but had never provided her with any confirmation of his job search activity.

 

Minn. Stat. ' 176.102, subd. 13, permits a compensation judge to discontinue benefits for any time during which the employee Adoes not make a good faith effort to participate in a reha­bilitation plan.@  In addition, an employee is generally required to perform a job search to pre­serve entitlement to temporary total disability benefits.  See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  In Le v. State, Univ. of Minn., 330 N.W.2d 453; 35 W.C.D. 665 (Minn. 1983), the Supreme Court held that in the absence of a demonstrated inability to find employ­ment or certification of a retraining program, an employee while attending school has withdrawn from the labor market and is not entitled to wage loss bene­fits.^[1]  AWhether an employee has removed himself from the labor market is a question of fact, the resolution of which will not be disturbed on appeal unless manifestly contrary to the evidence.@   Fischer v. Elmers Dis­tributing Co., 57 W.C.D. 165 (W.C.C.A. 1997)(citing Schroeder v. Highway Servs., 403 N.W.2d 237, 238, 39 W.C.D. 723, 725 (Minn. 1987).

 

On the evidence in this case, the compensation judge could reasonably conclude the employee was seeking an education rather than seeking employment and could conclude the em­ployee did not make a good faith effort to participate in rehabilitation, at least for a limited period of time.  We acknowledge the compensation judge could, on these facts, reach a different conclusion.  On appeal, however, the question is not whether the facts might support a different result, but whether the findings of fact and order are clearly erroneous and unsupported by substantial evidence.  Minn. Stat. ' 176.421, subd. 1 (1992).  Factual findings Aare 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).  In this case, we cannot conclude the findings of the compensation judge are clearly erroneous and the judge=s findings that the employer and insurer established reasonable grounds to discontinue temporary total disability benefits effective June 11, 2001 are, therefore, affirmed.

 

We vacate, however, the compensation judge=s finding the employee failed to prove entitlement to ongoing temporary total disability after June 10, 2001 through the date of hear­ing.  The sole issue before the compensation judge was whether the employer and insurer had reason­able grounds to discontinue temporary total disability benefits based on the employer and insurer=s Peti­tion to Discontinue and the June 11, 2001 NOID.  (T. 47-48, 138-139.)  Moreover, the compensation judge, based on the objections of the parties, refused to allow any testimony or to admit any evidence relating to events that occurred after June 11, 2001.  (T.  136, 138-39, 158-59, 244-46.)  The issue of the employee=s ongoing entitlement to benefits after June 11, 2001 was not tried by the parties and was not before the compensation judge.  As the judge improperly determined an issue not before him, we vacate those portions of the Findings and Order denying temporary total disability benefits to the employee after June 11, 2001 through the date of hearing.