JOHN S. HOFBAUER, Employee, v. MADE WRIGHT CUSTOM CABINETS and HARTFORD INS. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 6, 2003

 

HEADNOTES

 

EVIDENCE.  This court will not evaluate the credibility and probative value of witness testimony in order to choose different inferences from the evidence than the compensation judge.  The compensation judge did not err by finding the testimony of two witnesses to be highly credible where their testimony had minor inconsistencies but were generally compatible.

 

TERMINATION FROM EMPLOYMENT - MISCONDUCT; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(e)(1).  The compensation judge could reasonably conclude that the employee=s conduct involving tardiness and absenteeism which resulted in his termination from employment was not misconduct within the meaning of Minn. Stat. ' 176.101, subd. 1(e)(1), and that the employee was not barred from recommencement of his temporary total disability benefits.

 

MEDICAL TREATMENT & EXPENSE - CHIROPRACTIC TREATMENT.  Where the compensation judge did not specify the dollar amount of expenses awarded, and although his findings and order imply that the amounts awarded were either identical or very close to the specific amounts the employer and insurer agreed to litigate, the findings and order could be interpreted to refer to treatment expenses for dates beyond those claimed at the hearing, and therefore are modified to indicate the exact amount of expenses at issue and awarded.

 

Affirmed in part and modified in part.

 

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

Compensation Judge:  James R. Otto.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s findings that the employee sustained a permanent injury with ongoing restrictions and that the employee=s absenteeism and tardiness did not rise to the level of misconduct pursuant to Minn. Stat. ' 176.101, subd. 1(e)(1), and therefore did not disqualify the employee from receiving temporary total disability benefits.  We affirm in part and modify in part.

 

 

 

BACKGROUND

 

On July 23, 2001, John S. Hofbauer, the employee, sustained an admitted low back injury while working for Made Wright Cabinets, the employer, which was insured for workers= compensation liability by Hartford Insurance Group, the insurer.  The employee=s work activities involved various aspects of cabinet production, including face framing, sanding cabinet doors, and  loading and delivery of cabinets.  The employee=s work injury occurred while he carried a large cabinet down a flight of stairs, and was diagnosed as a lumbar disc herniation at L5-S1 and bulging disc at L4-5.  The employee had previously injured his low back in a nonwork-related incident on July 5, 2001, was treated at an emergency room, but missed no work due to his non-work injury.  However, after his work injury, the employee treated at Lubovich Chiropractic and Noran Neurological Clinic, and was restricted from work from July 23, 2001, through August 26, 2001, during which time the employer and insurer paid the employee temporary total disability benefits.  On August 27, 2001, the employee returned to light duty work. 

 

On July 16, 2001, a week before his work injury, the employee was two hours late for work and received a written warning from the employer which stated Aunacceptable attendance will result in suspension and/or dismissal.@  The employee testified that he had been a few minutes late for work on other earlier occasions and had not received any warnings.  After his injury, the employee was either late to work or failed to appear for work approximately eight times during the period between August 27, 2001, and January 23, 2002.  The employee received numerous written warnings for his tardiness and was suspended in December 2001 for a week. 

 

In October 2001, the employee was presented with written policies on attendance and punctuality.  On October 16, 2001, the employee requested time off on October 18th to appear as a witness before a grand jury related to a crime that occurred in his apartment building in September 2001, and was asked by the employer if he could work in the morning before his appearance.  The employee indicated that he thought he had a physical therapy appointment on the morning of October 18th as well.  At hearing, the employee testified that he told the employer that he was not sure what day he had an appointment, and that he was told to put the appointment on his request for time off from work.  A representative of the employer called to verify that medical appointment, was told that the employee did not have an appointment that day, and then issued the employee a written warning based on insubordination for falsifying a work release request.^[1] 

 

On November 27, 2001, the employer issued a written warning to the employee based on the employee=s unacceptable production performance and employee=s purported disruption of co-workers by talking with them.  On December 11, 2001, the employee was given a written warning for failure to call in until over three hours after his shift began and he was suspended for one week.  On December 31, 2001, all employees were given newly-created employee handbooks which contained the employer=s policies on attendance and punctuality.  Also on December 31, 2001, the employee was given a written warning when he called in sick but did not call in prior to his scheduled start time.  The warning stated that A[c]ontinued misconduct will no longer be tolerated and termination will occur at next offense.@  On January 23, 2002, the employee called in to the office after his work shift started, and arrived over an hour late for work, reporting that his automobile failed to start; his employment was terminated that day.

 

On February 4, 2002, the employee filed a claim petition for wage loss benefits and medical expenses.  A hearing was held on April 9, 2002, and April 12, 2002.  The compensation judge found that the employee had sustained a permanent injury to his low back on July 23, 2001, that the employee had not reached maximum medical improvement, and that the employee

 

was not disqualified from receiving benefits for temporary total disability from and after his date of termination on or about January 23, 2002[,] on the grounds that his misconduct led to his termination.

 

(Finding No. 9.)

 

The compensation judge awarded the employee temporary total and/or temporary partial disability benefits since January 23, 2002, the date the employer terminated his employment.  The compensation judge awarded payment of all disputed and unpaid expenses incurred by the employee at Lubovich Chiropractic and the Noran Neurological Clinic.  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

 

Evidence - Witness Credibility

 

The employer and insurer assert that the compensation judge=s finding that the employee sustained a permanent injury with ongoing restrictions is unsupported by substantial evidence.  However, the employer and insurer=s entire argument in their brief on appeal, regarding this issue, involves their claim that the compensation judge erred by finding that the employee and another witness and former co-worker, Glen Goettl, were both highly credible.  The employer and insurer argue that the employee=s testimony was inconsistent with that of Mr. Goettl and therefore the compensation judge=s findings were contradictory. 

 

The employer and insurer submitted a statement into evidence that Mr. Goettl had written, at the employer=s request, on November 8, 2001.  (Er Ex. 7.)  Mr. Goettl was called to testify at hearing to explain that statement.  The employer and insurer point out specific discrepancies between the employee=s testimony and that of Mr. Goettl, and argue that these discrepancies in their testimony demonstrate that the employee and Mr. Goettl cannot both be found Ahighly credible.@ 

 

The compensation judge found that the employee Atestified in a highly credible manner and his testimony has been received as true in all respects@ and that Mr. Goettl=s testimony was also Ahighly credible.@  After reading Mr. Goettl=s testimony, which generally supported the employee=s claims, we conclude that these minor inconsistencies do not require a reversal of the compensation judge=s findings.  AAssessment of witness credibility is the unique function of the factfinder.@  Tews v. Geo. A. Hormel & Co., 430 N.W.2d 178, 180, 41 W.C.D. 410, 412 (Minn. 1988).  A finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225-26 (Minn. 1989).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  Further, a factfinder generally Amay accept all or only a part of any witness' testimony.@  Proffit v. Minn. Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992) (quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)), summarily aff'd (Minn. Mar. 3, 1993).  Based on the record as a whole, substantial evidence supports the compensation judge=s finding that the employee=s and Mr. Goettl=s testimony was Ahighly credible,@ and we affirm.

 

The employer and insurer make no other argument regarding their assertion that the compensation judge=s finding that the employee sustained a permanent injury with ongoing restrictions is unsupported by substantial evidence.  In their brief, they present no arguments concerning whether the medical or rehabilitation records in evidence provide support for the compensation judge=s findings.  Since we have affirmed the compensation judge=s finding that the testimony by the employee and Mr. Goettl was Ahighly credible,@ and since the employer and insurer=s sole challenge was based on the witnesses= credibility, we also affirm the compensation judge=s finding that the employee sustained a permanent injury with ongoing restrictions. 

 

Termination from Employment - Misconduct

 

The employer and insurer also claim that the compensation judge erred by finding that the employee=s absenteeism and tardiness did not rise to the level of misconduct pursuant to Minn. Stat. ' 176.101, subd. 1(e)(1).  That section was added to the statute in 1995 and provides that, where an employee=s temporary total disability compensation has ceased because the employee has returned to work and the employee=s employment is later terminated for misconduct, the employee=s right to receive temporary total disability benefits following termination is forfeited.  The term Amisconduct@ is not defined in chapter 176 of the Minnesota Statutes.  The misconduct definition used in unemployment compensation cases found in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973), was adopted by this court in Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998).  This court held that, for purposes of Minn. Stat. ' 176.101, subd. 1(e)(1),

 

A. . . [T]he intended meaning of the term >misconduct= . . is limited to conduct evincing such wilful or wanton disregard of an employer=s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of [the] employer=s interest or of the employee=s duties and obligations to the employer.  On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed >misconduct.=. . .@

 

Id. at 3, citing Tilseth, 295 Minn. at 374-75, 204 N.W.2d at 646 (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)).

 

In Langworthy, this court specifically declined to adopt a Ajust cause@ standard as a basis for termination of benefits, noting that the legislature had not precluded commencement of temporary total disability benefits in cases where an employee had been terminated for Ajust cause@ but only when terminated for misconduct only.  Determining whether the employee's actions constituted misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).  The substantial evidence standard applies for reviewing the compensation judge's factual findings.  Whether the established facts, supported by substantial evidence, constitute misconduct is a question of law which this court may review de novo.  See Ress v. Abbott Northwestern Hosp., Inc. 448 N.W.2d 519, 523 (Minn. 1989). 

 

The employer and insurer cite Ranniger v. Brown Printing Co., slip op.  (W.C.C.A. Sept. 23, 1998), where this court affirmed a compensation judge=s finding that an employee=s twenty-five unexcused absences from work and two incidents of tardiness, before her employment was terminated, constituted misconduct under Minn. Stat. ' 176.101, subd. 1(e)(1).  Given this court=s standard of review, however, cases affirmed on substantial evidence grounds have little or no precedential value.  See, e.g., Carlson v. Nabisco Brands, slip op.  (W.C.C.A. May 2, 1994).  Further, it appears that the employee=s conduct in the Ranniger case involving twenty-five unexcused absences could be regarded as more egregious than the employee=s tardiness and miscommunications about his absences in this case.

 

Whether the employee=s specific conduct in this case justified the termination of his employment was not an issue before the compensation judge.  Instead, what was at issue was whether the compensation judge could reasonably conclude that the employee=s conduct did not constitute misconduct under Minn. Stat. ' 176.101, subd. 1(e)(1), and workers= compensation case law.  Based on the record as a whole, the compensation judge could reasonably determine that the conduct which resulted in the employee=s termination was not misconduct within the meaning of Minn. Stat. ' 176.101, subd. 1(e)(1), and that the employee was not barred from recommencement of his temporary total disability benefits.  Accordingly, we affirm.

 

Chiropractic Expenses

 

The compensation judge awarded payment to-date of all the employee=s unpaid expenses outstanding at Lubovich Chiropractic and Noran Neurological Clinic.  The employer and insurer appeal from that award, arguing that the compensation judge erred by expanding the scope of the issues addressed at hearing.  The employee argues that the compensation judge=s findings and order concerning the outstanding medical and chiropractic expenses did not improperly expand the scope of the issues.

 

At the outset of the hearing, the compensation judge and attorneys delineated the issues to be addressed during the hearing.  The employee asked the judge to address whether the treatment provided by Lubovich Chiropractic, for which expenses remained unpaid, was reasonably required to cure or relieve the effects of his July 23, 2001, injury.  Prior to hearing, the employer and insurer had been advised that the outstanding chiropractic expenses totaled $65.99, and that the outstanding balance at the Noran Clinic was $257.82.  At hearing, the employee advised that the outstanding amount of the chiropractic expenses was $968.78, as opposed to the originally-claimed amount of $65.99, based on expenses incurred through March 20, 2002.  Counsel for the employer and insurer objected to inclusion of the chiropractic claim, based on surprise.  However, counsel eventually informed the compensation judge that the employer and insurer had no objection to addressing the claim for outstanding expenses at the Noran Clinic, and that they were willing to address Athe issue as to the reasonableness of Lubovich Chiropractic bill of $968.78 and whether it was reasonably required to cure or relieve from the effects of Mr. Hofbauer=s personal injury of July 23, 2001.@  (Transcript at 10.)

 

In his findings and order, the compensation judge found that

 

All disputed and unpaid treatment provided to Mr. John S. Hofbauer by Lubovich Chiropractic and the Noran Clinic was reasonably required to cure or relieve from the effects of Mr. Hofbauer=s personal injury of July 23, 2001.

 

The compensation judge ordered payment of all the treatment expenses to-date.

 

The employer and insurer do not appeal from the finding that the chiropractic treatment was reasonably and necessary.  However, based on the pre-hearing discussions between the parties and the compensation judge, they appeal from the amount of expenses ordered by the compensation judge.

 

We conclude that the record shows that the parties agreed to address the medical and chiropractic issues, up to the amounts outstanding as of the hearing date, as documented on the employee=s exhibits.  Therefore, the compensation judge properly addressed the medical and chiropractic issues as agreed to by the parties at the hearing.  In his findings and order, the compensation judge ordered payment of expenses incurred to-date, but did not specify the amounts to be paid.  Although the findings and order imply that the amounts awarded by the compensation judge were either identical or very close to the specific amounts the employer and insurer agreed to litigate, the findings and order do not specify the amounts to be paid and could be interpreted to refer to treatment expenses for dates beyond those claimed at the hearing.  We therefore modify Order No. 2 to read as follows, which reflects the specific amounts claimed by the employee at hearing:

 

2.                  The above named employer and insurer pay directly to Lubovich Chiropractic the amount of $968.78, for expenses incurred through March 20, 2002, and to Noran Neurological Clinic, the amount of $257.82, for expenses incurred through March 11, 2002, subject to adjustments pursuant to the Department of Labor and Industry Fees for Medical Services.