KANE OLENCHAK, Employee/Appellant, v. WENZEL PLUMBING & HEATING and ZURICH INS. CO./CREATIVE RISK SOLUTIONS (TPA), Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 8, 2005

 

No. WC04-255

 

HEADNOTES:

 

PRACTICE & PROCEDURE - EXPEDITED HEARING.  Where the employee=s attorney did not object to the issues as identified by opposing counsel and where, instead, the attorney argued the merits of those issues, the compensation judge did not improperly expand the issues.

 

JOB OFFER - REFUSAL; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(i).  Where an employee=s misconduct consists of non-compliance with the employer=s attendance policy for four days, the employee=s conduct is not a constructive refusal of a job offer under the statute.

 

Affirmed in part and reversed in part.

 

Determined By: Stofferahn, J., Pederson, J., and Wilson, J.

Compensation Judge: Harold W. Schultz II

 

Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Appellant.  Jay T. Hartman, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, Saint Paul, MN, for the Respondents.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employee appeals from the compensation judge=s determination that the employee=s termination by the employer for violating the employer=s attendance policy was an effective refusal of a job offer under Minn. Stat ' 176.101, subd. 1(i).  We affirm in part and reverse in part.

 

BACKGROUND

 

The employee, Kane Olenchak, went to work for the employer, Wenzel Plumbing & Heating, as a pipe fitter apprentice at a weekly wage of $1,132.80 on April 23, 2003.  On April 25, 2003, the employee sustained an injury while pulling on a pipe wrench.  The injury has been diagnosed as an injury to the long thoracic nerve and has resulted in nerve palsy and scapular winging.  The employer and its insurer, Zurich Insurance Companies, accepted liability and began paying workers' compensation benefits to the employee.

 

On July 10, 2003, the employer sent the employee a job offer as a warehouse helper.  The employee did not accept the job and the employer and insurer filed a Notice of Intention to Discontinue benefits on the grounds that the employee had improperly refused a job offer.  A hearing was held by Compensation Judge Rolf Hagen on December 3, 2003.  In unappealed Findings and Order dated December 31, 2003, the compensation judge allowed temporary total disability benefits to be discontinued for the period July 16, 2003, to December 1, 2003, based on the employee=s failure to cooperate with medical care and treatment but denied the request to discontinue benefits for refusal of the job offer. The compensation judge found that the offered job exceeded the restrictions set by the employee's treating doctor, Dr. James Young, and also found that as of December 1, 2003, Dr. Young had taken the employee off work completely in anticipation of surgery, then scheduled for April 12, 2004.

 

On January 22, 2004, the employee saw Dr. Peter Daly for a second opinion on the surgery.  Dr. Daly reviewed the medical literature on the employee's condition and stated that spontaneous recovery was possible up to 18 months after the injury.  Based upon this information, Dr. Daly concluded that the proposed surgery was premature and he recommended no surgery for another six months.  Dr. Daly released the employee to return to work, avoiding lifting and carrying greater than 10 to 15 pounds with the right arm, repetitive outstretched use, and over‑the‑shoulder use of the right arm.

 

The records in evidence do not indicate whether the employee returned to his treating doctor, Dr. Young.  It appears that the surgery which previously had been scheduled was cancelled based on Dr. Daly's opinion.

 

On February 23, 2004, Brian Knutson, the Safety/Risk Control Manager at the employer, sent the employee a letter with a job offer.  The position offered was that of warehouse helper, working 8:00 am to 4:30 pm from Monday through Friday at $10.00 per hour.  The job was identified as being within the restrictions set by Dr. Daly and the job duties were listed as being to  "clean and organize warehouse area, sort fittings, and check‑in/sort returned materials."  The job was to start on March 15, 2004, and the employee was asked to call Mr. Knutson "to arrange for your return to work."

 

The employee did not contact Mr. Knutson prior to March 15.  The employee testified that he received Mr. Knutson's letter only a few days before the start date.  Sometime in the weekend before March 15, the employee was arrested and incarcerated for driving without a license and his car was impounded.

 

The employee showed  up for work on March 15 but was about 20 minutes late. The employee testified that he was late because he was not aware that the warehouse location had changed and he was unfamiliar with the new location.  Mr. Knutson testified that the employee took an hour for lunch when he was only supposed to take a half hour.  The employee did not work a full shift since he was apparently allowed to go home early because of a lack of work.

 

The employee did not come in to work the next day, Tuesday, March 16, 2004.  The employee testified that he overslept and did not wake up until he was called by Mr. McKenzie at about 11:30 am.  The employee did not go in to work for the remainder of that day.  On Wednesday, March 17, the employee again did not come in to work.  The employee had a court appearance at 1:00 pm and testified that he did not have transportation to get to work in the morning and then attend court in the afternoon.  The employee admitted that he had failed to contact the employer to let them know he would be gone that day.  The employer did not know the employee's whereabouts until they called his mother and learned from her that the employee was in court.

 

On Thursday, March 18, the employee called the employer and spoke to either Mr. McKenzie or Mr. Knutson to tell them that he would not be in that day since he was trying to get his car out of the impound lot.  He told them he planned to be in as scheduled on Friday morning. Since the employee had no license, he had to arrange for private towing to get his car released from the impound lot. He testified that when he arrived at the impound lot he was told that he needed additional paperwork from the arresting police officer, who had placed a hold on the vehicle. The employee was not able to obtain the paperwork because that officer was not on duty that day.   The employee decided to try again to get his car from the impound lot the next day, Friday. He called the employer at about 9:30 on Friday to advise them that he would not be able to work that day.

 

After the employee called, the employer prepared and mailed to the employee a letter advising him that he was terminated for violations of the employer=s attendance policy. When the employee, who not had received the letter, arrived at work on Monday, March 22, he was informed that he had been terminated.

 

On March 18, 2004, the employer and insurer filed a Notice of Intention to Discontinue (NOID) temporary total disability benefits based on the employee's return to work on March 15, 2004.  The NOID was dated March 16, 2004 and temporary total disability benefits were paid through March 14, 2004.  The employee did not object to this NOID. On March 22, 2004, the employer and insurer filed an "amended" Notice of Intention to Discontinue temporary partial disability benefits as of March 15, 2004, alleging that the employee had been terminated for violating the employer's attendance policy.  This NOID was dated March 19, 2004.  The employee objected to the March 19 NOID and an administrative conference was held on April 23, 2004, which resulted in an order allowing the employer and insurer to discontinue temporary total disability benefits.  The employee objected to the discontinuance.

 

On April 1, 2004, the employee consulted with Dr. Scott Steinmann at Mayo Clinic.  In the history he took, Dr. Steinmann noted that the employee had sustained a long thoracic nerve injury in April 2003 and that in November 2003 an EMG had shown no regeneration of the nerve.  Dr. Steinmann recommended muscle tendon transfer surgery.  The surgery was performed on June 2, 2004.  According to the QRC's reports, Dr. Steinmann restricted the employee from work until at least August 2, 2004.

 

The hearing on the employee's objection to discontinuance took place on July 29, 2004, before Compensation Judge Harold Schultz.  At the hearing the attorney for the employer and insurer argued that the NOID of March 19, 2004 was sustainable on two grounds: 1) that the employee had effectively refused an offer of employment by his conduct and was precluded from the receipt of temporary total disability benefits by Minn. Stat. ' 176.101, subd. 1(i); and, 2) that the employee had been terminated for misconduct and was precluded from the receipt of temporary total disability benefits by Minn. Stat. ' 176.101, subd. 1(e)(1).  In his Findings and Order, served and filed August 11, 2004, the compensation judge determined that the employee refused a reasonable job offer by "leaving work early on March 15, 2004, and then by not showing up for work the rest of the week."  The compensation judge ordered that temporary total disability benefits would not be paid pursuant to Minn. Stat. ' 176.101, subd. 1(i).  The compensation judge made no finding on whether the employee had been terminated for misconduct under Minn. Stat. ' 171.101, subd. 1(e)(1).  The employee appeals.

 

DECISION

 

Expansion of the Issues

 

The employee argues on appeal that the compensation judge improperly expanded the issues at hearing from those raised by the employer and insurer in the NOID dated March 19, 2004.  We note some difficulty in following the procedure here.  The March 19 NOID requested the discontinuance of temporary partial disability, yet the order from the administrative conference allowed the discontinuance of temporary total disability.  The employee's objection to the discontinuance was from the NOID which alleged that the discontinuance of temporary partial disability was appropriate because the employee had been terminated due to his non‑compliance with the employer's attendance policy.  No mention was made in the NOID either of an alleged job offer refusal or of misconduct under the statute.

 

This matter was heard on an expedited basis pursuant to Minn. Stat. ' 176.238.  Issues at an expedited hearing are limited to those raised in the notice or petition unless the parties agree to expand the issues.  Minn. Stat. ' 176.238, subd. 6.  In his opening statement, the attorney for the employer and insurer advised the compensation judge that temporary total disability benefits were not payable because of Minn. Stat. ' 176.101, subd. 1(i) and Minn. Stat. ' 176.101, subd. 1(e)(1).   The employee's attorney did not object to the statement of issues set out by the employer and insurer and, instead, argued the position of the employee on those issues.  In these circumstances, we conclude the employee agreed to expanding the issues before the compensation judge.  Eide v. Timberland Lumber Co., slip op. (W.C.C.A. Aug. 19, 2003).

 

Refusal of Job Offer

 

The compensation judge found that the employee was late and left early on the first day he returned to work and that the employee then missed the following four days of work.  Based upon this finding, the compensation judge concluded that the employee had Aconstructively@ refused a job offer and was no longer entitled to temporary total disability benefits pursuant to Minn. Stat. ' 176.101 subd. 1(i) which provides, ATemporary total disability compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the commissioner which meets the requirements of ' 176.102 subd. 4 or, if no plan has been filed, the employee refuses an offer of gainful employment that the employee can do in the employee=s physical condition.  Once temporary total disability compensation has ceased under this paragraph, it may not be recommenced.@  The employee argues on appeal that the compensation judge erred.  We agree.  Under the undisputed facts of this case, we conclude that the employee=s conduct does not constitute a refusal within the meaning of this provision.^[1]

 

Generally a refusal occurs when an employee communicates non-acceptance of a physically appropriate job offer, either verbally or in writing.  A Aconstructive refusal@ occurs when an employee=s intent to refuse the offer is clearly apparent from the employee=s conduct, as where there is an unjustifiable and intentional failure to respond to the offer within a reasonable time.  As this court has repeatedly observed, generally a termination for misconduct or a voluntary quit after an employee has returned to work does not constitute a constructive refusal of a job offer.  Hansen v. Beaver Indus., slip op. (W.C.C.A. Apr. 30, 1992); Heinonen v. Friesen=s Mfg. Co., slip op. (W.C.C.A. June 5, 1992); Millerbernd v. Spectrol Inc., 47 W.C.D. 479 (W.C.C.A.1992); Haswell v. Indelco Plastics, slip op. (W.C.C.A. Sept.17, 2001).

 

The Amisconduct@ of the employee in this case consisted of his non-compliance with the employer=s attendance policies, specifically being late to work and taking a long lunch break on the first day he returned to work and then missing four days of work, in substantial part due to transportation issues.  We conclude that this misconduct does not rise to the level of a constructive refusal of a job offer.  See Berege v. Jenny-O Foods, 47 W.C.D. 438 (W.C.C.A.1992); Weston v. Ryder Truck Rental, slip op. (W.C.C.A. Aug. 7, 1992);  Wagner v. Marvin Windows, 55 W.C.D. 135 (W.C.C.A. 1996).  The compensation judge=s denial of temporary total disability benefits under Minn. Stat. ' 176.101 subd. 1(i) is reversed. 

 

We have previously held that determination of whether given conduct rises to the level of misconduct as defined by the statute is ultimately a question of law to be determined deNovo by the Workers' Compensation Court of Appeals.  Rios v. National Coatings, 62 W.C.D. 349 (W.C.C.A. 2002).  In determining whether the employee's actions constituted misconduct, this court has adopted the "willful and wanton disregard of an employer's interests" standard set out by the Minnesota Supreme Court in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973).  Langworthy v. Signature Flight Support, slip op. (W.C.C.A. July 8, 1999).  Although the compensation judge made no finding on whether the employee's termination was for misconduct as defined by the statute, we decline to remand this matter for further consideration of this issue by the compensation judge since the employee's actions here do not meet the standards required by the statute.

 

Even in the absence of statutory misconduct, however, the employer may be justified in terminating the employee for the employee's actions on the job.  In such a situation, the employee's right to workers' compensation benefits may be suspended until the employee is able to establish that any wage loss is the result of the injury and not the misconduct.  Marsolek v. Geo. A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989).  Here, there is no evidence in the record of the employee making any effort to establish that his wage loss after his termination on March 19, 2004, was due to his work injury.  The compensation judge=s denial of temporary total disability benefits after that date is supported by the record and is affirmed.

 

The employee had surgery for his work injury on June 2, 2004, and there appears to be no dispute that the employee was medically unable to work for some period of time after that.   Accordingly, we reverse the denial by the compensation judge of temporary total disability benefits from and after June 2, 2004.