MICHELLE HUGILL, Employee/Cross-Appellant, v. BENTON COUNTY, SELF-INSURED/MINNESOTA COUNTIES INS. TRUST/RSKCO., Employer/Appellant, and ALLINA/SISTER KENNY INST., MICKELSON REHAB. CONSULTANTS, THIRD PARTY SOLUTIONS, INC., NORAN NEUROLOGICAL CLINIC, and FOLEY PHYSICAL REHAB. INC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 10, 2004

 

HEADNOTES

 

JOB OFFER - REFUSAL.  Under the circumstances of this case, including the fact that the job offer was within the restrictions recommended by a treating physician, the compensation judge did not err in concluding that it was unreasonable for the employee to refuse the offer.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including vocational opinion, supported the compensation judge=s decision that the employee had a loss of earning capacity causally related to her work injury and that she was entitled to temporary partial disability benefits based on actual earnings.  The Workers= Compensation Court of Appeals rejects the employer=s request for a ruling that refusal of suitable employment bars subsequent temporary partial disability benefits as a matter of law.

 

REHABILITATION - ELIGIBILITY.  Under the current statute, an employee=s refusal of suitable employment does not preclude eligibility for rehabilitation assistance.  Where the job the employee refused was no longer available to her, the compensation judge erred in denying the claim for rehabilitation expenses based on his conclusion that, once the job offer was made, the employee was no longer a qualified employee under Minn. R. 5220.0100, subp. 22B.

 

MEDICAL TREATMENT & EXPENSES - REASONABLE & NECESSARY.  Substantial evidence, including expert opinion, supported the judge=s denial of the employee=s request for approval of Botox injections.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Gary P. Mesna

 

Attorneys:  Christopher Celichowski, Johnson & Condon, Minneapolis, MN, for the Appellants.  Norbert Cuellar, Cuellar Law Office, Minneapolis, MN, for the Cross-Appellant.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s award of temporary partial disability benefits and from the judge=s decision that the employee conducted a reasonably diligent job search following her termination by the employer.  The employee cross appeals from the judge=s decision that she unreasonably refused the employer=s job offer and from the judge=s denial of rehabilitation expenses and her request for approval of Botox injections.  We reverse the denial of rehabilitation expenses and affirm on all other issues.

 

BACKGROUND

 

The employee began working as a public health nurse for Benton County [the employer] in February of 2001.  Her job duties included holding foot care clinics for the elderly, administering childhood vaccinations, and providing maternal health assessments and education to pregnant women and new mothers in their homes.

 

On July 10, 2002, the employee was involved in a work-related car accident, during which she struck her head on the driver=s-side car window.  Subsequent to the accident, she was seen at a local emergency room for complaints of neck, shoulder, and low back pain as well as headaches.  She was then off work entirely for several days before being released to work four-hour shifts with a lifting restriction.  On July 26, 2002, the employee=s physician relaxed the restriction on hours to allow the employee to work six hours a day.

 

When her symptoms continued despite conservative care, including physical therapy and medication, the employee was referred to Dr. Vanda Niemi, a neurologist, in October of 2002.  By this time, the employee was complaining of numbness and tingling in her arms as well as a tremor in her right hand.  EMGs and an MRI of the employee=s brain were read as normal.  Also in October of 2002, the employee began receiving rehabilitation assistance from QRC Tami Eisenschenk.

 

In December of 2002, Dr. Niemi referred the employee to Dr. Murali Krishnamurthy, a physical medicine and rehabilitation specialist at the Sister Kenny Institute, who diagnosed myofascial pain syndrome.  In his initial report of December 20, 2002, Dr. Krishnamurthy indicated that he would continue the employee=s current restrictions but that Aeventually she should be off all restrictions.@

 

Also in December of 2002, the employee became the subject of disciplinary proceedings in her job with the employer.  She was initially written up for allowing her CPR certification to lapse.  Subsequently, she was reprimanded for refusing to sign a job description.  The employee later explained that she did not want to sign the job description until her attorney had reviewed it and her QRC had performed an onsite job analysis.  With regard to the CPR certification issue, the employee testified that the instructor had cancelled the class on two previous occasions, that she had had to schedule an appointment with Dr. Niemi at the same time as another certification session, and that she was unable to perform the necessary chest compressions as a result of her injury in any event.

 

On December 27, 2002, the employer had the employee examined by Dr. Paul Yellin.  In his report of that same date, Dr. Yellin indicated that the employee had sustained a cervical and thoracic strain in the July 2002 accident, that the strain had healed, and that the employee had no objective findings to substantiate her ongoing complaints.  Accordingly, Dr. Yellin concluded that the employee had no need for further treatment and could return to her usual job without restrictions.

 

In keeping with their policy to observe the most recent restrictions issued by a physician, the employer notified the employee that she would be expected to work an eight-hour day, and the employer also filed a Notice of Intention to Discontinue Benefits, seeking to discontinue temporary partial disability benefits.  The employee took the position that the six-hour restriction imposed by her treating physician remained applicable, and she refused to work the additional hours.  Around this same time, the employee began receiving treatment for depression from Dr. Lea Hogan.

 

The employer suspended and then terminated the employee effective January 30, 2003, based largely on her refusal to work eight-hour shifts.  However, on January 29, 2003, following an administrative conference, a compensation judge issued a decision denying discontinuance of benefits, relying on the restrictions imposed by Dr. Krishnamurthy.  Upon receiving the judge=s decision, the employer reinstated temporary partial disability benefits.  Shortly thereafter, by letter dated February 3, 2003, the employer offered the employee her pre-injury job, writing, in part, as follows:

 

This letter is written to inform you that we have received documentation that the request to discontinue your temporary partial disability benefits has been denied.  Due to this new information, you shall be reinstated and expected to return to the Registered Nurse position.  Tim Martin is attempting today to contact you via telephone in hopes that you will be able to return to work on Tuesday, February 4th.  If Tim is unable to contact you, please be informed that you are expected to return to work at 8:00 a.m. on Wednesday, February 5th.

 

You will receive pay for those days that you were suspended and for the hours and days you missed after being discharged on January 30th, 2003.  You will also be credited any additional vacation and sick leave benefits that you would have received during this time.  I will be working closely with RSKCo and payroll to ensure that the appropriate credits and/or debits take place.  This would involve your wages, vacation, sick leave, and compensatory time.

 

The disciplinary correspondences dated 1/8/03, 1/10/03, 1/22/03, and 1/30/03 will be removed from your personnel file.

 

It is my understanding that you shall be placed on your previous restrictions of six- (6) hours a day and a ten- (10) pound lifting restriction.  Diana Graning and/or Tim Martin will meet with you to discuss your job duties and responsibilities.

 

Coincidentally, also on February 3, 2003, Dr. Krishnamuthy relaxed the employee=s restrictions to allow her to work six to eight hours a day, five days a week, and to lift up to 20 pounds.

 

The employee refused the employer=s job offer, testifying that she did not feel that she could trust the employer given their treatment of her in the weeks leading up to her termination.  The employee also testified that the work environment had been making her depression worse.  When asked later whether the employee=s refusal of the job was Areasonable,@ Dr. Hogan, the employee=s psychiatrist, wrote that Athis is a decision that [the employee] made.  I do not care to speculate whether she would continue to be written up, suspended or terminated if she continued to work for [the employer].@

 

After the employee refused the employer=s job offer, the employer declined to authorize additional rehabilitation services, including placement assistance, but the employee=s QRC and a placement specialist continued to provide services pending resolution of the dispute over rehabilitation eligibility.  In June of 2003, the employee obtained two part-time jobs, one for about 12 hours a week setting up medications at Brotts Group Home, the other for 18 to 24 hours a week administering allergy injections and skin tests for Allergy & Asthma Associates.  The employee quit the work for Brotts the following month, indicating that setting up the medication necessitated positioning her head in a way that was hard on her neck.  At some point she began working essentially full-time at the other job, on a temporary basis, to cover for another worker on maternity leave.

 

The matter came on for hearing before a compensation judge on August 19, 2003, for resolution of the employee=s claim for temporary partial and temporary total disability benefits after her refusal of the employer=s job offer in February of 2003, rehabilitation expenses, and expenses for Botox injections that had been recommended but not yet administered by Dr. Krishnamurthy.  Underlying issues included whether the employee=s refusal of the employer=s job offer was reasonable, the nature of the employee=s restrictions, the diligence of the employee=s job search efforts, and the employee=s earning capacity.  Witnesses at hearing included the employee, QRC Eisenschenk, and two representatives of the employer.

 

In a decision issued on September 16, 2003, the compensation judge determined, in part, that the employee was entitled to temporary total disability benefits through February 3, 2003.  Finding further that the employee=s refusal of the employer=s job offer was not reasonable, and the judge denied the employee=s claim for temporary total disability benefits after February 3, 2003, on that basis.  The judge also denied the claim for rehabilitation expenses incurred following the employee=s refusal of work and denied the request for approval of Botox injections.  However, concluding that the employee=s actual earnings were representative of her earning capacity, the judge awarded temporary partial disability benefits based on the employee=s wages in her work for Brotts and Allergy & Asthma Associates.  Both parties 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

 

1.  Refusal of Job Offer

 

The compensation judge denied the employee=s claim for temporary total disability benefits after February 3, 2003, pursuant to Minn. Stat. ' 176.101, subd. 1(i),^[1] based on his conclusion that it was unreasonable of the employee to have refused the employer=s job offer in February of 2003.  On appeal, the employee argues that her refusal was in fact reasonable given her depression, which the employer has conceded is related to her work injury, and given the allegedly unwarranted discipline that preceded the employer=s job offer.  We acknowledge that evidence cited by the employee could perhaps have formed the basis for a finding that her refusal was reasonable.  However, the issue on appeal is not whether the record might have supported some other determination but whether the judge=s decision is supported by the record as a whole.  In the present case, we cannot conclude that the compensation judge erred in characterizing the employee=s refusal as unreasonable.

 

The compensation judge explained his reasoning on this issue as follows:

 

The employee was terminated by the county for somewhat questionable grounds.  While it might have been preferable for the county to have waited until the dispute over restrictions was resolved before terminating the employee, the county offered her job back following the discontinuance conference and agreed to remove the discipline from her personnel file.  This appears to have been a good faith attempt by the employer to comply with the discontinuance process.  The employee refused the job offer.  Her reason for not accepting the job was that she no longer trusted the employer and, in light of her depression, it would not be in her best interest to accept re-employment with the county.  Under the particular facts of this case, the court does not find her rejection of the job offer to be reasonable.  While she may have had reason to distrust the employer, she should have given them a chance following the discontinuance decision.  They promised to follow her restrictions and remove the discipline from her file.  Her psychiatrist, Dr. Hogan, did not offer an opinion on whether it was reasonable to reject the job offer or whether re-employment with the county would negatively impact her mental health.  Finally, although QRC Eisenschenk felt the refusal was reasonable, the job offer was still consistent with the rehabilitation plan that was in effect at the time of the job offer.

 

We find nothing in the employee=s arguments that would justify reversing the judge=s decision.

 

2.  Job Search

 

The compensation judge concluded that the employee had conducted a reasonably diligent job search and cooperated with rehabilitation assistance following her refusal of the employer=s job offer in February of 2003.  The employer appeals as to the employee=s job search efforts, contending that substantial evidence does not support the judge=s decision.  Given the judge=s denial of temporary total disability benefits on other grounds, the employer=s purpose in appealing on this issue is not clear, especially since a job search is not a legal prerequisite to eligibility for temporary partial disability benefits.  See Nolan v. Sidal Realty Co., 53 W.C.D. 388, 394 (W.C.C.A 1995).  In fact, the employer has not explained, on appeal, how a reversal of the judge=s decision as to job search would benefit them.  At any rate, the judge=s decision is amply supported by the employee=s testimony as to her job search efforts, her job logs, and the testimony of the QRC.  We therefore affirm the judge=s decision on this issue.

 

3.  Earning Capacity / Temporary Partial Disability Benefits

 

With regard to the judge=s award of temporary partial disability benefits, the employer asks this court to rule that an employee who refuses suitable employment is ineligible for temporary partial disability benefits as a matter of law.  We reject this request.

 

Pursuant to Minn. Stat. ' 176.101, subd. 3n (1994), an employee who refused economically and physically suitable employment was generally ineligible for temporary partial disability benefits upon a subsequent return to work at a wage loss.  However, that provision was repealed in 1995, and, under the current statutory scheme applicable to this employee=s date of injury, only temporary total disability benefits are specifically affected by refusal of suitable work.  Given this statutory history, we must assume that the legislature intended to treat temporary partial disability benefits differently than temporary total disability benefits.  Finding no basis whatsoever to adopt the employer=s approach, we will not address the issue further.

 

We are also unpersuaded by the employer=s alternative argument that the employee=s employment at Brotts and Allergy & Asthma Associates is not representative of her earning capacity.  The compensation judge concluded that the employee continued to have restrictions as a result of her work injury,^[2] and the employer does not argue otherwise in their brief on appeal.  Actual earnings are presumptively representative of an injured employee=s earning capacity, see, e. g., Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 214 (1960), and, contrary to the employer=s suggestion, earnings from a job no longer available to the employee are of little evidentiary value in determining post injury earning capacity, see, e.g., Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).  As such, the fact that the employee might have had no wage loss had she accepted the February 2003 job offer is not dispositive of her eligibility for benefits based on her subsequent earnings.  In addition, the employee was working essentially full time (albeit on a temporary basis) as of the hearing date, and QRC Eisenschenk testified that her earnings in that work were representative of her earning capacity.  The employer offered no vocational evidence to the contrary.  The judge=s award of temporary partial disability benefits is affirmed.

 

4.  Rehabilitation Benefits

 

The compensation judge denied payment for rehabilitation services provided after February 3, 2003, based on his conclusion that the employee was no longer a qualified employee pursuant to Minn. R. 5220.0100, subp. 22B.^[3]  We reverse.  Minn. R. 5220.0100, subp. 22B, indicates that, to be a Aqualified employee@ eligible for rehabilitation services, the injured worker must be an employee who Acannot reasonably be expected to return to suitable gainful employment with the date of injury employer.@  While the employer in this case offered the employee work on February 3, 2003, the employee refused the offer, and the job became unavailable to her.  As such, it cannot be concluded that she could reasonably expect to return to work with the employer following her refusal.

 

Under the current statute, refusal of employment provides no grounds to deny rehabilitation assistance.  See, e.g., Lees v. G & S Roofing, Inc., slip op. (W.C.C.A. June 9, 1999); Thompson v. Electric Cords, Inc., slip op. (W.C.C.A. Mar. 12, 1998).  Contra Minn. Stat. ' 176.101, subd. 3n (repealed 1995).  It appears that the employer=s denial of rehabilitation assistance was premised solely on the employee=s refusal of the February 2003 job offer.  Given these circumstances, and given the compensation judge=s finding that the employee continues to have a loss of earning capacity causally related to her work injury, the claimed rehabilitation expenses are compensable, and we reverse the judge=s decision to the contrary.

 

5.  Botox Injections

 

The employee was seeking approval of Botox injections recommended by Dr. Krishnamurthy.  The compensation judge denied the request, relying on the opinion of Dr. Yellin, who wrote that, A[i]n the absence of spasm, since none has been clearly documented on any regular occasion, I do not believe that . . . Botox injections [are] warranted.@  On appeal, the employee argues that the record is Areplete@ with medical records establishing spasm and that the judge therefore erred in denying Botox injections on this basis.  However, in her brief, the employee cited to only two records mentioning spasm.  Also, as noted by the compensation judge, Dr. Krishnamurthy offered very little explanation as to why he was recommending the injections.  After review of the medical records, we cannot conclude that the compensation judge erred in accepting the opinion of Dr. Yellin on this issue, and we affirm that decision.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).