BRIAN WETTERLIND, Employee/Appellant, v. API/VIKING AUTOMATIC SPRINKLER SYS. and ST. PAUL COS., Employer-Insurer, and NORTHSTAR FIRE PROTECTION SERVS. and CNA/TRANSCONTINENTAL INS. CO., Employer-Insurer/Cross-Appellants, and RICHARD OTTOMEYER, D.C., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 25, 2002

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY.  Substantial evidence supported the compensation judge=s determination that the employee did not sustain a reduction in earning capacity causally related to the work injury.

 

WAGES - BONUS.  The compensation judge erred in failing to include the employee=s bonus in the calculation of average weekly wage when the evidence showed that the bonus was awarded in substantial part due to the employee=s efforts and job performance.

 

APPEALS - SCOPE OF REVIEW.  When the issue of notice was not argued at hearing and was raised for the first time on appeal, it will not be considered by the court.

 

EXCLUSIONS FROM COVERAGE - JOB APPLICATION.  Where an employer fails to inquire as to physical restrictions of the employee, the compensation judge properly concluded that the employee did not make a knowing and wilful misrepresentation as to his physical condition. See Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989).

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Kathleen Behounek.

 

                                                                      OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s denial of temporary partial disability benefits and from the judge=s computation of his average weekly wage on the date of injury.  We affirm the denial of temporary partial disability benefits and reverse as to the average weekly wage.  Northstar Fire Protection Services and Transcontinental Insurance Company appeal from the compensation judge=s finding that the employee sustained a personal injury arising out of and in the course and scope of his employment with Northstar, and appeal the compensation judge=s denial of a Jewison^[1] defense.  We affirm.

 

BACKGROUND

 

The employee, Brian Wetterlind, began working for API/Viking Automatic Sprinkler Systems [Viking] in May 1991.  The employee, who had extensive experience in the fire sprinkler industry, including running his own company for nine years, was employed by Viking as shop manager.  In that position, he made purchases of material, managed inventory, supervised production of parts, and generally was in charge of making sure that installers had necessary material.  The employee did not have a fixed work schedule and testified that he worked the hours necessary to get the job done.  He would work five or six days a week and anywhere from 40 to 60 hours a week.  The employee spent most of his work day on his computer or on the telephone.  He would use the computer to check inventory and would be on the telephone talking to suppliers and customers.  Much of his telephone work required the use of reference books, which were shelved above his desk.  The employee described a typical work activity as being on the telephone with the receiver nestled between his head and shoulder while he would be reaching for reference books and using the computer. 

 

The employee noted the onset of neck pain in 1998 and first sought attention for his symptoms on December 18, 1998, when he consulted with Dr. Richard Ottomeyer, with whom he had previously treated for low back problems.  Dr. Ottomeyer began providing chiropractic care to the employee.  There is no indication that any work restrictions were applied initially.

 

The employee continued to perform his usual job for Viking into 1999 with no lost time or job modifications.  In his report to the insurer of April 14, 1999, Dr. Ottomeyer diagnosed a cervical strain/sprain with associated cerviobrachial syndrome and myositis.  The employee was restricted from excessive lifting, bending and twisting type activities and given a lifting restriction of 30 pounds.  The employee was able to perform his regular job within these restrictions.  At some point, the employer made modifications to the employee=s work station by raising the computer monitor and providing a telephone headset.  The employee stated that these modifications helped his symptoms.

 

Dr. Ottomeyer referred the employee to the Noran Clinic where he had previously treated for a seizure disorder for some years.  On February 9, 1999, Dr. Shelly Svoboda took a history that the employee had begun experiencing cervical pain a few months ago and noted the pain was worse when he was driving or spending a long time sitting in front of his computer screen.  Dr. Svoboda diagnosed cervicalgia and scheduled an MRI and an EMG.  She also provided pain medication and recommended an ergonomic evaluation of the employee=s work space.  The MRI performed on February 17, 1999, showed minimal posterior marginal spurring and disc bulging at the C5-6 level and minimal posterior disc bulging at the C6-7 level.  On April 5, 1999, Dr. Svoboda=s re-examination found no evidence of spasm in the neck or back and noted improvement in symptoms after use of medication.  She continued to diagnose neck strain with cervicalgia.  Her work restrictions for the employee were no static positioning of the neck, no phone on shoulder, and occasional work above shoulder/head.  The employee did not treat thereafter at the Noran Clinic for his cervical symptoms.

 

The employee continued to treat with Dr. Ottomeyer.  Dr. Ottomeyer indicated in his June 23, 1999 report that the employee=s history was of developing neck, mid back and right shoulder pain after working on his computer for an extended period of time while at work for Viking.  Dr. Ottomeyer continued the restrictions that he had provided in April.

 

Viking and its insurer initially accepted liability for a December 3, 1998 injury and provided the services of a disability case manager to the employee.  At her suggestion, the employee consulted with Dr. Teresa Gurin, a physical medicine and rehabilitation specialist, who first saw the employee on July 21, 1999.  On examination, she found a positive Spurling=s test^[2] which reproduced the right shoulder numbness and tingling.  Other than some tenderness over the bilateral trapezius and rhomboid muscles, the balance of the examination was essentially normal.  Dr. Gurin diagnosed cervical neck pain and strain with mild right C6 radiculopathy and very mild cervical disc disease.  She also diagnosed bilateral rotator cuff strain and shoulder pain.  She recommended physical therapy, proper body mechanics and exercises, and attention to ergonomics at work.  No other physical restrictions were imposed.

 

Shortly after the employee=s consultation with Dr. Gurin, he was terminated by Viking.  The termination was not related to his work injury and was instead the result of a management change in the company.  The employee=s last day at Viking was in August 1999.  The employee continued to receive his salary through December 12, 1999, and also received a $12,000.00 bonus, which had also been received in 1998.

 

The employee returned to work on September 20, 1999.  The employee testified that in the interim he had looked for a number of jobs but the details of that search were not provided.  The employee met with Collin Barnett, the president of Northstar Fire Protection Services [Northstar], and sought the job of sprinkler system pipefitter.  The employee was asked if he was able to perform the job.  He replied that he was and he began working for Northstar on September 20, 1999.  The job duties of sprinkler system pipefitter were to install the pipe and fittings for the sprinkler system.  The job required lifting anywhere from a couple of pounds for hangers up to 80 pounds for pipe.  Most of the employee=s work was done on ladders, and he worked above his head 75 to 90 percent of the time.  The employee was still working at Northstar as a sprinkler system pipefitter as of the date of hearing.

 

The employee returned to see Dr. Gurin on September 1, 1999.  Her diagnosis was unchanged and she released him to work on a full time basis with a change in position every hour.  A return visit on September 23, 1999, was essentially the same.  Dr. Gurin noted that the employee had not gone to physical therapy because he did not want to ask for time off from his new job.  When the employee returned on October 27, 1999, he complained of worsening in his neck and shoulder symptoms with numbness in both hands that he believed was exacerbated by his new job of hanging pipe overhead.  Dr. Gurin changed his pain medication and recommended that he avoid neck hyperextension at work as much as possible.  On a Work Ability form, Dr. Gurin indicated the employee was to avoid prolonged overhead work.

 

The employee continued to complain of exacerbation of neck and shoulder pain when he saw Dr. Gurin on November 16, 1999.   Dr. Gurin continued the restrictions of no overhead work and no overtime.  When Dr. Gurin saw the employee again on December 15, 1999, she continued the same work restrictions and recommended that the employee seek a new job.  Dr. Gurin telephoned the employee on January 13, 2000, and he reported that while in physical therapy he had an onset of bilateral upper extremity weakness, numbness and tingling after a trial of cervical traction about six days previously.  He had been off work since that time and had noted improvement in his symptoms.  On January 29, 2000, Dr. Gurin recommended that the employee be placed in job search, indicating that he was not able to heal from his previous work injury while in his new job.  The employee continued to work full time as a pipefitter for Northstar.

 

The employee complained of severe exacerbation of neck pain when he returned to Dr. Gurin on March 23, 2000.  He also noted bilateral hand numbness and tingling all the time, which was worse with work.  The doctor concluded the employee had acute right C6 radiculophy.  She recommended an MRI and a neurosurgical consult.  Dr. Gurin also concluded that the employee had bilateral carpal tunnel syndrome, the first time that diagnosis had been made.  He was taken off work from March 16 to March 23, 2000, and released to return to work six hours per day with restrictions of no lifting over ten pounds.  The employee did not follow these restrictions and kept performing his regular job at Northstar with continued overtime.  In the three weeks after his visit with Dr. Gurin on March 23, the employee worked a total of 40 hours of overtime. 

 

When the employee returned to see Dr. Gurin on April 20, 2000, he indicated his pain was about the same.  His neck pain ranged between five/ten and nine/ten in intensity and he stated that when the pain was worse it would shoot to his shoulder.  He complained of bilateral wrist pain which would wake him at night.  Dr. Gurin assessed acute right C6 radiculopathy and bilateral carpal tunnel syndrome.  She recommended a cervical MRI and a surgical evaluation for the carpal tunnel.  She also recommended again that the employee change jobs.  His work restrictions were otherwise unchanged.

 

The employee was seen for an independent medical evaluation by Dr. Joel Gedan at the request of Viking on May 8, 2000.  Dr. Gedan reported a normal neurological examination except for some decrease in reflex in the right biceps and brachioradialis.  Dr. Gedan concluded that the employee=s diagnosis was chronic complaint of neck pain and possible recent development of right C6 nerve root irritation.  Dr. Gedan=s opinion was that there was no cervical injury at Viking and that if the employee had cervical radiculopathy, it might be due to his work at Northstar.  Dr. Gedan indicated that the employee should avoid prolonged repetitive flexion and extension of the neck and overhead work.  According to Dr. Gedan, the employee=s work at Northstar was not within these restrictions.

 

When the employee returned to see Dr. Gurin on May 25, 2000, he was doing somewhat better with his pain.  No change was made in his treatment or work restrictions.  The employee=s last treatment with Dr. Gurin before the hearing was on January 29, 2001.  His symptoms were largely unchanged.  Dr. Gurin recommended a surgical evaluation for his bilateral carpal tunnel syndrome and for the right C5-6 radiculopathy.  The employee=s restrictions continued as had been previously recommended by Dr. Gurin.

 

The employee was seen by Dr. Mary Dunn for an independent medical evaluation on behalf of Northstar on March 8, 2001.  She found decreased cervical flexion and lateral rotation on examination.  Dr. Dunn concluded that the employee had not sustained a September 13, 2000 cervical injury from his employment at Northstar, and she did not believe that his work activities at Northstar were a substantial contributing cause of his condition.

 

Viking also had the employee seen for an additional independent medical evaluation on April 10, 2001, with Dr. Paul Wicklund.  Dr. Wicklund opined that the employee had sustained a cervical strain from using the telephone in an awkward position at Viking.  Dr. Wicklund concluded that the findings on MRI relative to the cervical spine were degenerative changes not due to his employment at Viking.  He also did not find any objective findings for carpal tunnel syndrome.  Dr. Wicklund placed no restrictions on the employee=s work activity and allowed him to continue to work as a pipefitter.

 

Dr. Gurin=s opinion as indicated in her deposition of September 13, 2000, was that the work activities at Viking substantially contributed and caused the right C6 radiculopathy and that the condition had also been aggravated and accelerated by his work at Northstar.  Dr. Gurin provided a narrative report of May 17, 2001, in which she addressed the employee=s carpal tunnel syndrome.  She stated that the work activities at Viking and Northstar were both causative factors and she apportioned responsibility for the condition 30 to 40 percent to Viking and 60 to 70 percent to Northstar.  Her restrictions for the carpal tunnel syndrome were Ano overhead activities, avoid wrist flexion and poor wrist mechanics, take frequent breaks and avoid repetitive activities with the hands.@

 

Testimony varied as to how the employee=s physical condition affected his employability.  Mike Stern, the employee=s QRC, testified that the employee had sustained a loss in earning capacity because of the effect of the neck condition on his ability to do physical labor.  He also concluded that the job at Northstar exceeded the employee=s earning capacity in that the employee was working beyond restrictions.  The record indicated that rehabilitation efforts initially focused on job search, but the employee resisted that approach because the jobs identified would result in a wage loss compared to his earnings at Viking.  Some consideration was given to the possibility of retraining or self-employment but no action was taken on these possibilities.  On cross-examination, Mr. Stern stated that whether or not the employee had restrictions, his earnings at Northstar were at the top of the scale for physical labor.  David Berdahl, who did a vocational evaluation for Viking, testified by deposition.  He concluded that the employee=s job at Viking was a non-physical occupation which was consistent with the restrictions placed upon him.  He also concluded that the cervical injury the employee claimed from his employment at Viking was not a factor in any subsequent wage loss.  The factors identified by Mr. Berdahl in reaching this conclusion were the employee=s ability to perform his previous occupation at Viking and the employee=s ability to perform the job of pipefitter despite the restrictions placed upon him.

 

This matter came on for hearing on June 19, 2001, before Compensation Judge Kathleen Behounek.  The parties disputed causation for the employee=s cervical and carpal tunnel conditions, the weekly wage of the employee at Viking and Northstar, entitlement of the employee to temporary partial disability, payment of chiropractic expense, whether the employee should receive ongoing rehabilitation services, a penalty claim against Viking, and whether or not a Jewison defense existed for Northstar.  In her Findings and Order served and filed September 13, 2001, the compensation judge addressed these disputes.  On the issues relevant to this appeal, the judge found:  (1) the employee sustained a Gillette injury^[3] to his cervical spine on December 3, 1998, while employed at Viking; (2) his average weekly wage on that date was $1,284.61; (3) the employee sustained a Gillette injury to his cervical spine on December 15, 1999, while employed at Northstar; (4) the employee=s carpal tunnel was the result of a Gillette injury sustained at Northstar on January 26, 2000; (5) the employee was not entitled to temporary partial disability benefits; (6) the employee was not precluded from the receipt of benefits from Northstar on the basis of a Jewison defense.  The employee appealed the compensation judge=s determination of his average weekly wage on December 3, 1998, and her denial of his claim for temporary partial disability.  Northstar appealed the finding of a Gillette injury to the cervical spine at Northstar and the rejection of a Jewison defense.

 

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.  Temporary Partial Disability

 

The employee claimed temporary partial disability against Viking from December 18, 1999, based upon his wage loss from his employment at Northstar.^[4]  The compensation judge denied the claim, finding that there was no causal relationship between his December 3, 1998 injury and his loss of earnings after December 18, 1999, because the employee was physically capable of performing the job duties at Viking at the time of his termination.  The compensation judge also found that the employee had not sustained a loss of earnings caused by the December 15, 1999 cervical injury at Northstar.  The employee has appealed the denial of his claim for temporary partial disability benefits.  We affirm.

 

During the time the employee worked at Viking after his work injury of December 3, 1998, he had restrictions from Dr. Ottomeyer of no lifting over 30 pounds and no excessive lifting, bending and twisting type of activities.  The employee=s job at Viking was within these restrictions and, with some minor modifications to his work space, the employee was able to continue at his job with no lost time.  The employee=s termination in August of 1999 was not related to his work injury.

 

These facts alone do not necessarily lead to a conclusion that the employee is not entitled to temporary partial disability after his departure from Viking.  The three elements necessary to establish a claim for temporary partial disability are (1) there must be a physical disability; (2) the employee must be able to work subject to the disability; and (3) there must be an actual loss of earning capacity that is causally related to the disability.  Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976); Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981).  In this case, the employee established that he has a physical disability due to his work injury.  It is also well settled that termination from employment for reasons not connected to the work injury does not preclude an award of temporary partial disability.  Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989); Mayer v. Hormel Foods Corp., slip op. (W.C.C.A. Apr. 18, 2001).  In such a case, the question becomes whether there is a causal relationship between the work injury and the wage loss.

 

After he was terminated by Viking, the employee sought and obtained employment almost immediately with Northstar as a sprinkler system pipefitter.  That job required almost constant overhead work and involved lifting of up to 80 pounds unaided.  The employee=s treating doctor consistently advised him that the job was inappropriate for him.  Despite that advice, the employee  continued to work at Northstar, often working significant overtime.  As of the date of the hearing, the employee had worked at Northstar for almost two years with no significant lost time.  Clearly, the employee ignored his work injury and his restrictions in  his employment after Viking.  That decision made his work injury and disability irrelevant to his earning capacity and broke the causal relationship between his work injury and any subsequent wage loss.  Working beyond one=s restrictions in a new job after an injury does not automatically preclude the award of temporary partial disability, but,  in this case, the ability of the employee to remain in his current employment for almost two years raises the question of whether his restrictions were appropriate.

 

We affirm the compensation judge because we find substantial evidence in the record, given the unique facts of this case, to support her conclusion that there is no causal relationship between the employee=s work injury at Viking and his subsequent wage loss.

 

The employee also argues that the compensation judge should not have denied any temporary partial claim against Northstar when she found insufficient evidence for an average weekly wage at Northstar. The employee contends that the issue of temporary partial disability should have been deferred. The compensation judge found no causal relationship between the cervical injury of December 15, 1999 and any loss in earnings. Substantial evidence supports the compensation judge=s conclusion on that issue.

 

2.  Average Weekly Wage on December 3, 1998

 

The compensation judge found the employee had an average weekly wage of $1,284.61 on December 3, 1998, when he sustained his cervical injury at Viking.  The employee has appealed, arguing that, as a matter of law, the judge erred in not including the employee=s bonus in the calculation of his wage. 

 

The evidence supplied by the employee demonstrates that at the end of 1998 and the end of 1999 he received a bonus for each year in the amount of $12,000.00.  The employee testified at the hearing that the bonus was based on Aemployee performance and on overall company perform (sic) for the year.@  The employee=s basis for his conclusion was a communication with the president of Viking in which the employee was told Ait was on employee performance, on how well the group that I managed performed throughout the year, and again how the company did was a part of it too.@  No evidence on this issue was introduced by Viking.  In Stewart v. Ford Motor Co., 474 N.W.2d 162, 45 W.C.D. 175 (Minn. 1991), the court considered the inclusion of a profit sharing payment in the calculation of the employee=s wage.  The court concluded that the payment represented profits which accrued independently of the employee=s efforts and held that the payment was not included in wages.  In contrast, the court noted wages are compensation for labor and services which reflect the earning capacity of the employee.

 

In Reilly v. Burns Corp., slip op. (W.C.C.A. Feb. 9, 1999), the court included an manager=s annual bonus in the wage of the employee, noting that, in contrast to Stewart, the employee earned the bonus by meeting specific goals set for her.  The court found that the receipt of the bonus depended almost entirely on the personal performance of the employee.

 

In the present case, the employee testified to three conditions for the bonus: his job performance, the performance of the group he supervised, and the company=s condition.  The employee provided examples of goals which were met by his department.  We hold that compensation which is paid to the employee as a bonus, when his efforts were a substantial factor in the payment of the bonus, is properly included in the employee=s wage.

 

The argument of the employer and insurer is not that this payment was a profit sharing distribution but that the bonus was not paid Aalmost entirely@ on personal performance since the company=s financial condition was a factor as well.  It may be assumed that the financial condition of the employer is a precondition of payment in most bonus situations.  This factor alone, however, does not mean that the bonus is not included in the employee=s wage.  Where, as here, the primary function of the bonus was to reward the employee for his performance and skill in managing his department, the bonus is properly included in the employee=s wage.

 

The compensation judge is reversed on this point.  The Findings and Order are amended to reflect an average weekly wage of $1,515.38 on December 3, 1998.^[5]

 

3.  Primary Liability Against Northstar

 

Northstar has appealed the determination of the compensation judge that the employee sustained a bilateral carpal tunnel injury on January 26, 2000, as a result of his employment at Northstar.  Although the issue on appeal is framed as one of primary liability, the arguments presented in Northstar=s brief relate only to notice.  The conclusion in Northstar=s brief is that the finding of the compensation judge concerning the carpal tunnel injury Ashould be reversed since the employee failed to give proper notice to Northstar of ever having sustained any injury which arose out of and in the course of his employment.@

 

This matter was initially set for hearing on March 14, 2001.  For reasons not indicated in the record, the hearing was continued on that date and rescheduled for June 19, 2001.  From the transcript on that date, it would appear that there had been some discussion of the issues on March 14 and the compensation judge again allowed the parties to review these issues further.  That discussion and the opening statements of the attorneys cover more than 50 pages of the transcript.  At the close of the hearing, the parties were allowed to make closing arguments.  At no time was the question of an alleged lack of notice raised by any of the parties.

 

As an appellate court, our function is to identify the issues which have been appealed, examine the evidence introduced by the parties on these issues at the hearing, and review the findings of the compensation judge for sufficiency of evidence and compliance with the law.  It is not our function to be triers of fact.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  For these reasons, we will not consider an issue not argued at the hearing and raised for the first time on appeal.  Titera v. Clearwater-Polk Elec. Coop., slip op. (W.C.C.A. Apr. 13, 2000).  Since the issue of whether the employee provided the notice required by statute of his claimed bilateral carpal tunnel was not raised by Northstar at the hearing, it will not be considered now.

 

4.  Jewison Defense

 

Northstar argues that, not withstanding any other conclusion, it should be absolved of its liability for the December 15, 1999 cervical injury and the January 26, 2000 bilateral carpal tunnel injury by reason of the holding in Jewison v. Frerichs Constr., 434 N.W.2d 259, 41 W.C.D. 541 (Minn. 1989).

 

The Jewison defense, as it is usually called, has three elements: (1) the employee knowingly and wilfully made a false representation as to his physical condition; (2) the employer substantially and justifiably relied on the false representation in the hiring of the employee; and (3) a causal connection existed between the false representation and the injury.  The burden is on the employer to prove each of these elements.

 

In the present case, the compensation judge found that the evidence failed to show that the employee made a knowing and wilful misrepresentation of his physical condition or that the employer relied on a misrepresentation in hiring the employee.  We agree with the compensation judge that the employer failed to establish the first element of the Jewison defense and affirm her finding that the employee was not barred from recovering against Northstar.

 

Collin Barnett, the president of Northstar, testified at the hearing.  He stated that the hiring process in the employee=s case involved a personal interview with no written job application.  In the interview, Mr. Barnett asked the employee if he was able to perform the job of sprinkler system pipefitter.  Mr. Barnett asked the question because it had been some time since the employee had done the job and Mr. Barnett was asking with regard to the employee=s ability and desire.  At no time did Mr. Barnett ask the employee about his physical restrictions or his medical history.

 

In its brief, Northstar cites two cases, George v. Big Bear Farm Stores, slip op. (W.C.C.A. Feb. 1, 1991), and Ockwig v. Courier Dispatch Group, Inc., slip op. (W.C.C.A. Mar. 3, 1992), in support of its position.  However, in both cases there were written employment application forms which asked specifically about physical restrictions.  No such inquiry was made here.  The question by the employer in this case was whether the employee was able to do the job.  As of the date of hearing, the employee had worked at Northstar with minimal lost time for almost two years.  The response of the employee was not false as to his ability to perform the job.  Since the first element of the Jewison defense was not met by Northstar, we need not consider the other elements.