KELLY R. MATHISON, Employee/Appellant, v. UNITED PARCEL SERV., INC., and LIBERTY MUT. INS. CO., Employer-Insurer, and CENTER FOR DIAGNOSTIC IMAGING, WOODBURY AMBULATORY SURGERY CTR. and ASSOCIATED ANESTHESIOLOGISTS, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 16, 2004
HEADNOTES
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee made no search for work for over ten months after being released to return to work with restrictions, and where the employer had twice earlier declined to provide work for the employee within her restrictions, albeit on grounds that the employee=s condition was not work-related, the compensation judge=s denial of temporary total disability benefits on grounds that the employee did not have a reasonable expectation of work with the employer and yet did not conduct a reasonably diligent job search during the benefits period in question was not clearly erroneous and unsupported by substantial evidence.
Affirmed.
Determined by: Pederson, J., Johnson, J., and Rykken, J.
Compensation Judge: Bradley J. Behr.
Attorneys: Wayne J. Studer, Griffel & Dorshow, Minnetonka, MN, for the Appellant. David J. Odlaug and Kathleen M. Daly, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
OPINION
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s denial of temporary total disability benefits from July 20, 2002, to June 3, 2003, and from the judge=s determination that the employee did not have a reasonable expectation of returning to work with the employer so as to excuse the employee from conducting a reasonable and diligent job search during that period. We affirm.
BACKGROUND
Kelly R. Mathison [the employee] began working for United Parcel Service [the employer] in May of 1999. The employee worked part-time throughout her term of employment with the employer. Initially she worked as a package handler loading semi trailers. In September of 2001, she was transferred to a lighter position in the Asmall sort@ department, where smaller packages were sorted, placed in bags, and then sent to be loaded into the trailers. The employee lost no time from work as a result of any physical symptoms until February of 2002, when she reported a work injury to her right shoulder. On February 12, 2002, she saw Dr. William Isaksen at the Park Nicollet Airport Clinic, who diagnosed recurrent right shoulder strain-tendinitis and released her to work with restrictions against lifting more than twenty pounds and against doing any overhead reaching with her right arm. The employer declined to offer work within these restrictions, taking the position that the employee=s condition was not work-related. On February 27, 2002, the restrictions were lifted, and the employer once again offered the employee work. On April 18, 2002, Dr. Isaksen=s associate Dr. Kevin O=Connell reissued the same restrictions, and again the employer declined to provide work for the employee, on the same basis.
On June 10, 2002, the employee filed a claim petition, seeking temporary total disability benefits continuing from April 18, 2002, consequent to right shoulder injuries on August 15, 2001, and April 18, 2002. Prior to trial, the employee amended her claim to assert a Gillette-type injury[1] on August 15, 2001, a specific injury on February 4, 2002, and another specific injury on April 16, 2002. On all three of those dates the employee had been twenty-five years old and had been earning a weekly wage of $115.67. The employee=s restrictions were lifted again on June 11, 2002, after which the employer again provided work for the employee until June 19, 2002, when the employee once again became subject to the same restrictions and the employer again denied employment on the same basis. In their response to the employee=s claim petition, the employer and insurer denied liability for the employee=s claimed injuries. When the employee=s restrictions were again lifted on July 16, 2002, the employer again provided the employee with work.
On July 17, 2002, the employee was examined by Dr. Austin Indritz at Minnesota Occupational Health. Dr. Indritz noted that the employee had undergone several courses of physical therapy, had undergone an MRI scan of her right shoulder, and had eventually undergone cortisone shots to the shoulder. The employee advised Dr. Indritz that her right shoulder discomfort was markedly improved and that Ashe rarely notices any discomfort whatsoever.@ The doctor diagnosed resolved right shoulder tendinitis and released the employee to regular duty without restrictions. Upon returning to work, the employee noticed increasing pain in her shoulder associated with overhead reaching. She again complained to her supervisors, who sent her home. The employee did not return to work for the employer after July 19, 2002.
From July to September 2002, the employee did not see a medical doctor regarding her right shoulder. On September 10, 2002, she returned to her family physician, Dr. James Ilko, who again placed her under restrictions and referred her to an orthopedic surgeon for further evaluation. The employee took her restrictions to the employer, but again, as the employee=s claim had been denied, no work was offered to her. The employee=s right shoulder pain continued, and eventually she was treated with physical therapy, cortisone injections, and exercise therapy. Surgery was ultimately performed on June 3, 2003, and she subsequently developed adhesions which were released under anesthesia on August 19, 2003.
The employee=s claims for workers= compensation benefits came on for a hearing before a compensation judge on August 28, 2003. In a findings and order issued October 30, 2003, the compensation judge determined that the employee had sustained injuries to her right shoulder on August 15, 2001, February 4, 2002, and April 16, 2002, as alleged. Temporary total disability benefits were awarded to the employee as alleged for the periods from February 12, 2002, to July 16, 2002, and from June 3, 2003, to the date of the hearing. At Finding 17, however, the judge found that the employee had not engaged in a reasonably diligent job search from July 20, 2002, to June 3, 2003, the date of her shoulder surgery, and that she did not have a reasonable expectation of returning to work with the employer during that period and was therefore not entitled to wage loss benefits during the period. The employee appeals from the judge=s denial of benefits during that period.
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
As a general rule, an employee who has been released to return to work must prove total disability by showing that work within her restrictions is not available. That there is no work available within the employee=s capabilities is demonstrated by a reasonable and diligent job search. Redgate v. Sroga=s Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). On a number of occasions, however, this court has held that, where there is a reasonable possibility that an employee will return to work with the employer within a relatively short period, a search for alternative employment may not be practical or reasonable. Whether the employee has had a reasonable expectation of a return to work with the employer is a question of fact for the compensation judge, based on circumstances peculiar to the case. Cloud v. Leach Lake Housing Auth., 63 W.C.D. 226 (W.C.C.A. 2002); Gray v. Sears Roebuck & Co., 60 W.C.D. 273 (W.C.C.A. 2000); Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996); Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995).
Here, the employee argues that substantial evidence does not support the compensation judge=s finding that she did not have a reasonable expectation of returning to work with the employer during the period at issue. She asserts that she was never told that she was terminated, that she considered herself an employee, received a retroactive raise and pay for vacation time, and was not offered rehabilitation assistance, and that she continued to receive family medical coverage for almost a year after she last physically worked for the employer. We are not persuaded.
It is undisputed that the employee was not restricted by any physician from July 17, 2002, through September 10, 2002. The employee conceded that during that period she made no effort to return to work for the employer. The employee conceded also that between September 10, 2002, and June 3, 2003, she did not look for any work. In a memorandum accompanying his decision, the judge stated:
I do not accept her contention that she believed she would be returning to work with the employer, and is therefore relieved of the obligation to search for work. It was clear that the employer was unwilling to offer light duty work, other than her job in the small sort department even before July 20, 2002, and on that date she was sent home by management. There was no indication given to her on that date that further offers of employment could be expected.
While the evidence cited by the employee may support her contention that she had a reasonable expectation of returning to work with the employer, there is nevertheless substantial evidence to support the compensation judge=s determination to the contrary. Here, the employee admitted that she made no search for work for over ten months. Because the employee was released to return to work and failed to perform any job search during the period at issue, it was not unreasonable for the compensation judge to deny the employee=s claim for temporary total disability benefits from July 20, 2002, to June 3, 2003, and therefore we affirm. See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59, 37 W.C.D. at 239 (Minn. 1984).