JOY M. DELL, Employee, v. PARKER HANNIFIN, SELF-INSURED/SEDGWICK CLAIMS MGMT., Employer-Insurer/Appellants, and DEP'T of LABOR & INDUS./VRU, DEP=T OF EMPLOYMENT & ECONOMIC DEV., HEALTHPARTNERS, INC., MN DEP=T OF HUMAN SERVS., and THE ORTHOPAEDIC CTR., LTD., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 12, 2004

 

No. WC04-128

 

HEADNOTES

 

JOB OFFER; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(i).  Minn Stat. § 176.101, subd. 1(i) does not apply when the employee was not receiving temporary total disability compensation when the job offer was made.  Substantial evidence supports the award of temporary total disability compensation when the employee engaged in a diligent job search.   

 

Affirmed.

 

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

Compensation Judge: Gary M. Hall

 

Attorneys:  David L. Christianson, Cronan Pearson Quinlivan, Minneapolis, MN, for the Appellants.  Thomas A. Klint, Babcock, Neilson, Mannella, Lafleur & Klint, Anoka, MN, for the Respondent.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The self-insured employer appeals from the compensation judge=s award of temporary total disability compensation and contends that, pursuant to Minn. Stat. ' 176.101 subd. 1(i), the employee=s refusal of a job offer should have precluded  the award.  We affirm.

 

BACKGROUND

 

The employee, Joy Dell, began working for Parker Hannifin in 1979.  The employer produced parts for farm machinery in its plant in Minnesota and, initially, the employee was an assembler, using power tools to assemble parts on a production line.  While working the assembly job, the employee sustained three admitted overuse injuries to her upper extremities: a bilateral carpal tunnel injury on March 2, 1987, a left elbow injury on May 1, 1992, and a right elbow injury on June 15, 1992.^[1]  As the result of her injuries, she required two surgeries, a right tennis elbow release in June 1992 and a left tennis elbow release in December of 1992.  Both procedures were performed by Dr. Alan Markman. 

 

Dr. Markman released the employee to return to work in May 1993 with restrictions that precluded a return to her assembly job.  The employee then returned to work with the employer in the packaging department.  The employee testified that about half of her time was spent processing paperwork, either on the computer or by hand, and that she also packed products in the assembly area.  In March 1995, the employee consulted with Dr. Markman with complaints of left elbow and left shoulder pain.  Dr. Markman found some impingement signs in the shoulder and prescribed a course of physical therapy.  The employee saw Dr. Markman in 1996 and 1997 with symptoms of left elbow pain.  During this time, she continued to work her regular job with the employer.

 

In October 2000, the employee received physical therapy at the direction of Dr. Markman for lateral epicondylitis in the left arm.  The employee returned to Dr. Markman a year later, in October 2001, complaining of pain in her left elbow with repetitive use of that arm. Dr. Markman noted that the employee=s lateral epicondylitis was unchanged, and no treatment recommendations were made. The employee did not see Dr. Markman again until April 16, 2002, when she sought treatment for pain in her left elbow and left shoulder.  Dr. Markman=s assessment was of Arecalcitrant lateral epicondylitis.  She probably has some cuff tendinitis from overuse.@  Dr. Markman prescribed six sessions of physical therapy and provided the employee with work restrictions limiting repetitive use of her arms.  The employee continued to perform her regular job with the employer.

 

Sometime at the end of 2001, the employee began hearing at work that the employer was planning to close its assembly and warehouse operations and would lay off the employees who worked in those areas.  The employee subsequently learned that employees who were laid off would receive severance pay of $200 for every year of service.  The employee, who had worked for the company for 23 years, was eligible for severance pay of $4,600. 

 

On May 23, 2002, the employer informed the employee by  letter that her current position would be eliminated.  The employer offered the employee a position as a receptionist.  The receptionist job paid slightly less than the employee=s wages in the packaging department and was not a union position.  The employer had sent a job description to Dr. Markman, and he had approved the job as being physically appropriate for the employee.

 

The employee did not accept the receptionist job.  She testified at the hearing that she was concerned that the company would close and that she would lose the job and also lose her severance pay.  The employee was laid off as of June 6, 2002.  A QRC selected by the employer had contacted the employee in May 2002, but no services were provided at that time.  The employee received unemployment benefits until February 2003 and participated in job search activities required to qualify for those benefits.

 

The employee did not treat with Dr. Markman, after her termination, until February 4, 2003.  She reported at that time that she had pain in the lateral aspect of her left elbow and a pinching sensation in her left shoulder, which made it difficult to reach overhead.  Dr. Markman concluded the employee had left lateral epicondylitis and Asignificant impingement type symptoms of her left shoulder.@  His recommendation was for the employee to consider an MRI scan to establish a clear diagnosis.

 

The employee contacted a private QRC in May 2003.  When the employer denied rehabilitation services on the grounds that the employee had rejected a suitable job offer, the employee contacted the Vocational Rehabilitation Unit of the Department of Labor and Industry.  Thereafter the employee conducted a search for employment within her restrictions. The QRC spoke with AKay@ at Parker Hannifin who told her, according to the QRC=s report of September 17, 2003, Asince the plant is closing down, there=s no work available for Ms. Dell.@  

 

In June 2003, Dr. Markman noted that the employee had been experiencing increasing pain and decreasing function in her left shoulder.  An MRI of the left shoulder performed on October 8, 2003,  was read as being consistent with impingement and AC joint arthrosis.  The employee had shoulder surgery, performed by Dr. Markman, on October 30, 2003.  In his deposition of October 8, 2003, Dr. Markman related the employee=s shoulder problems to her repetitive work activity with the employer.

 

The employee was evaluated on behalf of the employer on September 10, 2003, by Dr. David Boxall.  Dr. Boxall diagnosed minimal findings of medial epicondylitis in the left elbow and possible AC joint arthritis in the left shoulder of unknown etiology.  Dr. Boxall recommended restrictions because of the employee=s left elbow condition and stated that this condition was due to her employment.  However, Dr. Boxall concluded that the employee=s shoulder condition was not work related and did not require work restrictions.

 

The employee filed a claim petition for workers= compensation benefits on May 28, 2003, alleging entitlement to benefits as the result of a claimed left shoulder injury on April 16, 2002. An amended claim petition was subsequently filed, seeking benefits as the result of the admitted 1987 and 1992 injuries and claimed left shoulder injuries in January/February 1995 and April 16, 2002.  The employee=s claims were heard by Compensation Judge Gary Hall on December 3, 2003. 

 

At the hearing, the parties stipulated to the admitted injuries, stipulated to the weekly wage on the date of each injury, agreed to an April 16, 2002, injury but disputed the nature and extent of that injury, disputed whether the employee had a work injury to her left shoulder, either in early 1995 or in 2002, and disputed whether the employee  was entitled to temporary total disability compensation from June 6, 2002, and continuing. With regard to the employee=s claims for her left shoulder condition, the employee=s attorney stated,

 

So I think the court is going to have to decide if in fact she did sustain a shoulder injury what=s the operative injury date, and that=s important because it may have ramifications down the road if this woman isn=t able to find work and a claim for permanent total is made. Obviously with the >95 injury and 2002 she would be entitled to supplemental benefits.

 

The employer=s position at hearing, with regard to the claim for temporary total disability compensation, was that the employee did not engage in a diligent job search, that the employee had reached maximum medical improvement, and that, pursuant to Minn. Stat. ' 176.101, subd. 1(i), the employee was not eligible for benefits because she had refused gainful employment.

 

In his Findings and Order, served and filed January 16, 2004, the compensation judge listed the agreements of the parties and the issues to be determined but did not identify the controlling date of injury as an issue. In relevant findings, the compensation judge determined that the employee=s left shoulder condition was related to her employment, that the employee had not reached maximum medical improvement, and that the employee had not unreasonably refused a job offer. He denied the employee=s claim for temporary total disability compensation for the period of June 6, 2002, through May 23, 2003, on grounds that the employee had not engaged in a diligent job search during that period, but he awarded temporary total disability after May 23, 2003.  The compensation judge further found that the employee had sustained a work injury to her left shoulder on March 24, 1995, but he made no finding on the nature and extent of the admitted 2002 injury and he did not specify which injury was the controlling event for the payment of benefits. The employer appeals.

 

DECISION

 

The employer contends on appeal that the employee rejected an offer of gainful employment from the employer and that, as a result, she is precluded from receiving temporary total disability compensation pursuant to Minn. Stat. ' 176.101, subd. 1(i).  The compensation judge did not specifically address the employer=s argument that the employee was ineligible for temporary total disability pursuant to Minn. Stat. ' 176.101, subd. 1(i)  finding instead that the employee=s rejection of the job offer was reasonable, and he awarded benefits based on her diligent job search after May 23, 2003.

 

We note initially that it is not clear from the compensation judge=s decision which injury he found to be controlling for purposes of determining the applicable statute. The only date of injury specifically mentioned in the compensation judge=s findings is that of March 24, 1995. If the compensation judge was basing his analysis on the 1995 injury, then the employer=s reliance on Minn. Stat. ' 176.101, subd. 1(i) would fail, since that section was not in effect in March 1995. However, the parties did not raise this issue on appeal and seem to be proceeding on the assumption that the law in effect in 2002 applies to this case, despite the absence of any finding regarding the claimed  2002 shoulder injury. Indeed, neither party even mentions a March 1995 injury in their briefs, focusing instead on Minn. Stat. ' 176.101, subd. 1(i), and the reasonableness of the employee=s refusal.

 

Under other circumstances, a remand on this issue might be appropriate for resolution of the question of which law is applicable to the employee=s benefits claim. However, no party has asked for that remedy, and, given the arguments of the parties and the narrow scope of the employer=s appeal in conjunction with the fact that the parties did stipulate at hearing to a 2002 injury, we will limit our review to the issue of whether the compensation judge erred in failing to deny the employee=s temporary total disability benefit claim pursuant to Minn. Stat. ' 176.101, subd. 1(i) (2002).

 

Minn. Stat. ' 176.101, subd. 1(i), provides: ATemporary total compensation shall cease if . . . the employee refuses an offer of gainful employment that the employee can do in the employee=s physical condition.  Once temporary total compensation has ceased under this paragraph, it may not be recommenced.@  According to the employer, the receptionist position offered to the employee was physically and economically appropriate, and her refusal of that position results in her ineligibility for temporary total disability compensation under the statute. We disagree.

 

Minn. Stat. ' 176.101, subd. 1(i) must be read in conjunction with Minn. Stat. ' 176.101, subd. 1(d), which states: ATemporary total disability compensation shall be paid during the period of disability subject to the cessation and recommencement conditions in paragraphs (e) to (l).@  This court has concluded that AThe plain language of the statute limits its application to situations in which the employee=s entitlement to temporary total disability benefits commenced prior to the offer of gainful employment.  Clearly, benefits which never commenced cannot cease.@  Oliver v. Axman Surplus, slip op. (W.C.C.A. Dec.1, 1999). In the present case, the employee was not receiving temporary total disability compensation when she received the receptionist job offer; she was working her regular job in the packaging department.  Pursuant to Oliver, we conclude that Minn. Stat. ' 176.101, subd. 1(i) simply does not apply here.

 

 The compensation judge denied the employee=s claim for temporary total disability compensation from the time of the employee=s termination through May 23, 2003, because he determined that the employee did not engage in a diligent search for employment during that period.  The compensation judge found that the employee had conducted  a diligent job search after May 23, 2003, and awarded temporary total disability compensation after that date. On appeal, the employer also argues that the employee=s refusal was not reasonable and the employee should not have been allowed to receive temporary total disability compensation from the time of the refusal.

 

Other than Minn. Stat. ' 176.101, subd. 1(i), which we have concluded does not bar the employee=s claim, the employer cites no authority for the proposition that an employee=s refusal of a job offer forever precludes additional benefits for temporary total disability.  No argument was made at the hearing that the receptionist job which had been offered to the employee was still available as of the hearing date or at any time after the employee=s termination.  Generally, an employee who demonstrates through a diligent job search that no work is available within the employee=s restrictions is entitled to temporary total disability compensation.  Redgate v. Stroga=s Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  In that, the finding that the employee conducted a diligent job search was not appealed, the compensation judge=s award of temporary total disability compensation is affirmed.

 

The employer has also appealed from the award of rehabilitation services to the employee, alleging that the employee did not cooperate with a rehabilitation plan and should be barred from rehabilitation services under Minn. Stat. ' 176.102, subd. 8(c) because she did not accept the employer=s job offer.  This argument has no merit.  There was no rehabilitation plan in effect at the time of the job offer. 

 

The compensation judge=s award of rehabilitation benefits is therefore affirmed.