SCOTTIE REGGS III, Employee, v. KNUTSON CONSTR., and ST. PAUL COS., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 12, 2004

HEADNOTES

PRACTICE & PROCEDURE - PROPOSED FINDINGS AND ORDER.  Where the findings and order are supported by the record, the compensation judge's adoption of a party's proposed findings and order is not reversible error per se. 

TERMINATION OF EMPLOYMENT - MISCONDUCT; JOB SEARCH - SUBSTANTIAL EVIDENCE.  Where the employee had been terminated from his employment, his right to temporary benefits are suspended until he demonstrates that his work-related disability is the cause of his wage loss through a diligent job search.  Substantial evidence supports a finding of a diligent job search from May 6, 2002, through the date of the hearing.  Therefore, the compensation judge=s award of temporary total disability benefits is modified to exclude the period of April 23, 2002, through May 5, 2002.

Affirmed as modified.

Determined by: Rykken, J., Stofferahn, J., Pederson, J.

Compensation Judge: James R. Otto

Attorneys: Mark J. Fellman, Attorney at Law, St. Paul, MN, for the Respondent. Jay T. Hartman and Tracy M. Borash, Heacox, Hartman, Mattaini, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.

OPINION

MIRIAM P. RYKKEN, Judge

The employer and insurer appeal the compensation judge=s findings and order on remand, arguing that the compensation judge exceeded the scope of the remand, that substantial evidence does not support the compensation judge=s finding that the employee=s disability was a substantial contributing cause of his inability to find employment between April 22, 2002, and his return to work on July 17, 2002, and that the compensation judge erred by adopting the employee=s proposed findings and order verbatim.  We affirm as modified.

BACKGROUND

The facts of this case are set out in this court=s previous opinion, Reggs v. Knutson Constr., slip op. (W.C.C.A. Apr. 29, 2003).  Briefly, Mr. Scottie Reggs, the employee, sustained an admitted work-related injury to his low back on March 9, 2002, while working for Knutson Construction, the employer, which was insured for workers= compensation liability by St. Paul Companies, the insurer.  The employee was hospitalized between March 9-11, 2002, received follow-up medical treatment and began receiving temporary total disability benefits.  After the injury, the employee failed a drug screening test which he underwent pursuant to the employer=s written drug and alcohol testing policy.  That policy mandated that any employee who has sustained a work-related injury requiring medical attention to undergo a drug screening test, and also required any employee who failed a drug screening test to participate in an approved employee assistance program for appropriate substance abuse evaluation and to follow the treatment guidelines and plan recommended by the program.  Although the employee was referred to a drug counselor, who then referred the employee to a chemical dependency program, the employee failed to enter such a program, citing as reasons the cost of the program and his inability to remain seated during the classes due to symptoms related to his back injury.  As a result of that failure, the employer terminated the employee=s employment in late April 2002 for violation of the employer=s workplace drug and alcohol testing policy. 

On April 19, 2002, Dr. Thomas Lange, the employee=s treating physician released the employee to light-duty work, limited to six hours per day for two weeks, and full-time restricted work thereafter.  The employer and insurer paid temporary total disability benefits through April 22, 2002, and filed a notice of intention to discontinue benefits as of that date.  The employee objected to the discontinuance and an evidentiary  hearing was scheduled to address the discontinuance.  The employee began searching for work by approximately May 6, 2002.  On June 10, 2002, Dr. Lange reduced the employee=s restrictions to no lifting or carrying over 50 pounds, no pushing or pulling over 100 pounds, no repetitive or sustained bending and twisting at the waist level, and recommended that the employee continue to wear a back brace.  On June 28, 2002, Dr. Lange revised those restrictions to no lifting or carrying over 45 pounds, and no pushing or pulling over 80 pounds, recommended that the employee perform no work on scaffolds, and stated that the employee would be able to do light construction or indoor work. 

By mid-June 2002, the employer and insurer first provided rehabilitation assistance to the employee.  Following a rehabilitation consultation on June 12, 2002, the employee=s QRC determined that the employee qualified for statutory rehabilitation services.  The hearing in this case began on July 10, 2002, and was concluded on a second day of hearing on July 19, 2002.  On July 17, 2002, before the second day of hearing, the employee began working at a full time job for a different employer.

On July 26, 2002, the compensation judge issued his findings and order, in which he outlined the issues as follows:

Whether Mr. Scottie Reggs III is entitled to receive benefits for temporary total disability from and after April 22, 2002 to date of hearing, or is disqualified because:

a.         He refused work otherwise available to him by not attending and completing a chemical dependency treatment program after testing positive for marijuana and/or cocaine following his admitted injury of March 9, 2002; and/or

b.         He was not totally disabled from all gainful employment from and after April 22, 2002 and his unemployment subsequent to April 22, 2002 was due to his failure to attend and complete a substance abuse treatment program; and/or

c.         Mr. Reggs= termination was due to his failure to attend and complete a substance abuse treatment program as company policy required; and/or

d.         Mr. Reggs did not make a reasonable or diligent effort to find work that he could do from and after April 22, 2002 and/or before that date; and/or

e.         Mr. Reggs is not entitled to receive temporary total disability because he is 90 days post Maximum Medical Improvement; and in connection therewith; whether and when Mr. Reggs reached Maximum Medical Improvement.

f.          Mr. Reggs did not have any physical restrictions due to his personal injury of March 9, 2002 on or after April 22, 2002; and/or

g.         Mr. Reggs effectively withdrew from the active employment market for reasons unrelated to his personal injury of March 9, 2002; and/or

h.         Mr. Reggs= termination from his employment with Knutson Construction was for misconduct sufficient to terminate any entitlement to temporary total disability from and after his termination.

The compensation judge found that the employee=s work-related injury to his low back on March 9, 2002, caused, significantly aggravated, or accelerated his pre-existing low back condition.  The compensation judge determined that the employee was physically unable to return to light duty work Areasonably available to him by his date-of-injury employer@ on April 23, 2002, but was able to return to light duty work by June 28, 2002.  The compensation judge awarded temporary total disability benefits from April 23 to June 28, 2002, and denied the employee=s entitlement to either temporary total or temporary partial disability after June 28, 2002, finding as follows:

Mr. Reggs is disqualified from receiving benefits for temporary total disability or temporary partial disability after June 28, 2002 to date of hearing because he was not totally disabled after June 28, 2002 and because he refused work otherwise available to him by not participating in the recommended substance abuse treatment program or because he found work he could do effective July 17, 2002. 

The employer and insurer appealed from the compensation judge=s finding that the employee was entitled to temporary total disability benefits from April 22 to June 28, 2002.  The employee cross-appealed from the compensation judge=s denial of temporary total and temporary partial disability benefits after June 28, 2002.  In a decision served and filed April 29, 2003, this court vacated in part and remanded in part, stating:

It is not evident whether the compensation judge considered the effect of the employee=s failure to undergo chemical dependency treatment on his ongoing entitlement to benefits between April 22 and June 28, 2002, and, specifically, whether that constituted a refusal of a job offer, in view of the employer=s policy that the employee=s return to work was contingent upon his attendance at chemical dependency treatment.  The only reference in the findings to a refusal of a job offer is in the compensation judge=s denial of temporary total disability benefits after June 28, 2002, in part because the employee Arefused work otherwise available to him.@ But, based on the record, there was no job offer presented to the employee after April 22, 2002, and there was no ongoing employment relationship between the employer and employee after the employee=s job termination on April 22, 2002, as was implied by the compensation judge when he referred to the employee=s refusal of work still available to him by June 28, 2002.

Although not entirely clear, it appears that the compensation judge instead based his award of benefits on the employee=s incapacity to perform even light-duty work available with the employer.  First of all, there was no light-duty work available after the employee=s job was terminated.  And the record lacks support for a conclusion that the employee was physically incapable of performing any work during this period of time.  No physician restricted the employee entirely from work during this period of time; by April 19, 2002, the employee=s treating physician released him to return to work with light-duty restrictions, and lessened those restrictions on June 7, 2002, and the employee testified that he considered himself physically able to return to construction work by May 2, 2002, the date when he began applying for other construction jobs.

Because it is unclear whether the compensation judge considered the effect, if any, of the employee=s failure to attend chemical dependency treatment and whether that constituted a refusal of a job offer under Minn. Stat. ' 176.101, subd. 1(I), we therefore remand to the compensation judge for reconsideration of that issue, and for reconsideration of the employee=s entitlement to temporary total disability benefits, as the judge=s conclusion on the job offer issue may affect his conclusions on the employer and insurer=s alternative arguments on appeal.      

Id.  The court concluded:

It is not clear from the findings and order whether the compensation judge fully considered the issues outlined at the hearing.  We therefore vacate the compensation judge=s award of temporary total disability benefits from April 23 to June 28, 2002, and vacate his denial of benefits after June 28, 2002.  We remand for a reconsideration of the issue, including a determination  whether the employee=s failure to undergo the recommended chemical dependency treatment constituted a refusal of a job offer and, if so, what is the effect, if any, of that refusal on the employee=s entitlement to ongoing temporary total disability benefits.  We also remand for determination of whether, through his job search after April 22, the employee demonstrated that his work-related disability was the cause of his inability to find or hold new employment.  The compensation judge should base his decision on the existing record.      

Id. 

Upon remand, the compensation judge ordered the parties to submit proposed findings and order after reconsideration Ato assist this Judge in addressing all issues raised by the Workers= Compensation Court of Appeals.@  The parties filed their proposed findings and order.  On June 16, 2003, the compensation judge issued his Findings and Order After Remand on Reconsideration, which adopted the employee=s proposed findings and order.  The compensation judge awarded the employee temporary total disability benefits from April 23, 2002, through July 16, 2002.  The employer and insurer appealed.

DECISION

The employer and insurer argue that substantial evidence does not support the compensation judge=s findings regarding the employee=s termination for violation of the employer=s workplace drug and alcohol testing policy and regarding his subsequent job search. 

This court determined that the issue in this case is whether the employee was justifiably discharged for misconduct so as to suspend his entitlement to temporary total disability benefits and whether the employee demonstrated thereafter, by conducting a diligent job search, that his wage loss was due to his work-related disability rather than his misconduct. This court noted in its earlier decision that the compensation judge made no findings in his initial decision concerning what effect the employee=s job termination for failure to comply with the employer=s workplace drug and alcohol testing policy had on his ongoing entitlement to temporary total disability benefits, and concerning the employee=s job search after April 22, 2002.  Upon remand, the compensation judge found that the employee had not been terminated for misconduct but that his failure to attend the treatment program may have justified his termination, that there was no indication that the employee did not want to work, that he had made a diligent job search and that the employee had Ademonstrated that his work-related disability was a substantial contributing cause of his inability to find or hold employment after his termination.@ 

As noted by this court in its earlier decision, Minn. Stat. ' 176.101, subd. 1(e)(1), which precludes recommencement of temporary total disability benefits after an employee has returned to work and then is discharged for misconduct, does not apply to terminate an employee=s ongoing entitlement to temporary total disability benefits such as in this case.  Here, the employee did not return to work for the employer after his injury, so the statutory provisions concerning cessation and recommencement of benefits do not apply and are not determinative of the employee=s claim for ongoing temporary total disability benefits.

However, the employer and insurer alternatively argued that the employee=s discharge for misconductBfailure to comply with the employer=s alcohol and drug testing policy--at least suspended his entitlement to temporary total disability benefits until such time he was able to prove that his work-related disability caused his ongoing wage loss and inability to find new employment, citing to Marsolek v. George A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989).  In Marsolek, the Minnesota Supreme Court held that Aa justifiable discharge for misconduct suspends an injured employee=s right to wage loss benefits; but the suspension of entitlement to wage loss benefits will be lifted once it has become demonstrable that the employee=s work-related disability is the cause of the employee=s inability to find or hold new employment.@  Although the compensation judge concluded that the employee=s action in this case did not rise to the level of Amisconduct@ as defined in Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1998), the employee=s position was terminated Afor cause@ and the compensation judge found that the employee=s failure to attend the treatment program Amay have justified his termination.@  In cases where the employee is no longer able to work for the employer due to discharge for misconduct, termination for cause, or even a voluntary separation, the employee=s temporary benefits are suspended until the employee demonstrates that his work-related disability is the cause of his wage loss or inability to find new employment.  See Hughes v. Versa/Northern Iron, 58 W.C.D. 520, 531 (W.C.C.A. 1998).  This determination is made "upon consideration of the totality of the circumstances, including the usual work search requirements."  Marsolek, 438 N.W.2d at 924, 41 W.C.D. at 968. 

The determination of whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).  A[T]he issue of whether or not an employee has sought work with reasonable diligence must be viewed within the context of the scope of rehabilitation assistance which has been provided by the employer and insurer."  Hunter v. Crawford Door Sales, (W.C.C.A. Aug. 4, 1993) (citing Sellner v. B. F. Goodrich Co., 39 W.C.D. 463 (W.C.C.A. 1986)).  In this case, the employee was not provided with rehabilitation assistance until mid-June, 2002.  The employee conducted his own job search, which included 43 job contacts over seven weeks, as documented by his job logs submitted into evidence, and contacts made with his union hall.  The employee found another job, through his local union, by July 17, 2002.  The compensation judge found that the employee made a reasonable job search, that he continued to have work restrictions due to his injury through the date of the hearing, and that he demonstrated that his work-related disability was a substantial cause of his inability to find or hold employment after his job was terminated.  The compensation judge=s findings were based in large part on the testimony of the employee.  The judge also had the opportunity to hear testimony presented by an employer representative and the employee=s QRC.

In both his initial findings and order and  in his findings and order upon remand, the compensation judge specifically found the employee to be credible.  Assessment of the credibility of a witness is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (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).  In addition, on appeal, this court must determine whether "the 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.  Substantial evidence supports the findings if, in the context of the entire record, "they 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).

Cogent arguments were presented by the employer and insurer and the record contains evidence that contradicted the employee=s testimony and his assertions that his work-related disability contributed to his inability to find employment, including the employee=s own testimony that since at least early May 2002 he considered himself physically able to work as a carpenter, he placed himself on the union hall hiring list for construction jobs, and the employer contacts listed on his job logs are almost solely related to construction jobs.  Although we consider this to be a very close case, based on the record before him the compensation judge could reasonably conclude that the employee had made a diligent job search and had demonstrated that his work-related disability was the cause of the employee=s wage loss or inability to find new employment from the date that he began his job search through the date of the hearing.  Under this court=s appellate standard of review, where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

However, the employee=s job logs indicate that he did not begin his job search until May 6, 2002.^[1]  After a termination for misconduct or for cause, temporary benefits are suspended until the employee demonstrates that his work-related disability is the cause of his wage loss or inability to find new employment.   Marsolek, 438 N.W.2d at 924, 41 W.C.D. at 968.  Whether an injured employee makes a reasonably diligent search for suitable employment, for purposes of determining eligibility for disability compensation, is a question of fact which must be upheld unless manifestly contrary to the evidence.  Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 39 W.C.D. 758 (Minn. 1987).  In this case, there is no evidence in the record to support a finding that the employee sought work before May 6, 2002, thereby demonstrating a causal connection between his work injury and his inability to find new employment between April 22 and May 6, 2002.  Accordingly, we modify the award of temporary total disability benefits to exclude April 23, 2002, through May 5, 2002.

The employer and insurer also argue that the compensation judge erred by making a finding outside the scope of this court=s remand regarding the employee=s reason for not attending the recommended chemical dependency treatment program.  This finding could be related to the issue of whether the employee was discharged for misconduct, and therefore was appropriately addressed on remand.

Finally, the employer and insurer contend that the compensation judge erred by adopting the employee=s proposed findings and order verbatim.  Minn. Stat. ' 176.371 provides in part:

The compensation judge to whom a petition has been assigned for hearing, shall hear all competent, relevant evidence produced at the hearing.  All questions of fact and law submitted to a compensation judge at the hearing shall be disposed of and the judge's decision shall be filed with the commissioner . . . .  The compensation judge's decision shall include a determination of all contested issues of fact and law and an award or disallowance of compensation or other order as the pleadings, evidence, this chapter and rule require.  A compensation judge's decision shall include a memorandum only if necessary to delineate the reasons for the decision or to discuss the credibility of witnesses.  A memorandum shall not contain a recitation of the evidence presented at the hearing, but shall be limited to the compensation judge's basis for the decision.

The employer and insurer argue that the adopted findings and order do not demonstrate that the compensation judge independently determined the issues submitted.

We have stated in other decisions that submission of proposed findings or letter briefs at the conclusion of a hearing does not change the compensation judge=s obligation to review and evaluate the evidence in the record.  However, the adoption of proposed findings and order by the compensation judge is not reversible error per se.  Goldman v. Bryn Mawr Nursing Home, slip op. (W.C.C.A. Nov. 23, 1998); Hagg v. Olympic Steel, Inc., slip op. (W.C.C.A. Sept. 1, 1998).  The compensation judge had the entire record available to him for review and had the opportunity to hear the testimony and arguments presented at hearing.  On remand, the compensation judge noted in his brief memorandum that he had adopted the proposed decision as his own, that it fairly and accurately set out the relevant facts and correctly applied the law to those facts.  While we continue to prefer that proposed findings be used as a guide or check list, and that the compensation judge redraft the findings and memorandum to reflect his or her independent judgment, Anderson v. The Salvation Army, slip op. (W.C.C.A. June 27, 2003), we find no error in this case since the evidence in the record adequately supports the compensation judge=s findings.  Accordingly, we affirm.