LOUIS WHEELOCK, Employee/Appellant, v. TRILITE STONE, and USF&G, Employer-Insurer, and TRILITE STONE, and MIGA/FREMONT COMP. GROUP, Employer-Insurer, and HOME DEPOT, and AMERICAN INT=L GROUP/AIG CLAIMS SERVS., Employer-Insurer, and ST. FRANCIS HOSP., BLUE CROSS & BLUE SHIELD, and MN DEP=T OF HUMAN SERVS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 1, 2005

 

No. WC04-312

 

HEADNOTES

 

JOB OFFER - REFUSAL.  Rehabilitation and medical records reasonably support the conclusion that the employee refused an offer of suitable employment.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  The compensation judge reasonably concluded that four extremely short-term jobs held by the employee post-injury were casual and sporadic employment not representative of the employee=s earning capacity for temporary partial disability benefit purposes.

 

Affirmed as modified.

 

Determined by: Wilson, J., Stofferahn, J., and Johnson, C.J.

Compensation Judge: Carol A. Eckersen

 

Attorneys: Arnold M. Bellis, Attorney at Law, Minneapolis, MN, for the Appellant.  Thomas J. Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents Trilite Stone/MIGA-Fremont.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of wage loss and rehabilitation benefits, arguing that the judge erred in concluding that the employee had refused suitable employment with the date-of-injury employer.  The employer and MIGA have agreed to provide rehabilitation assistance, and we therefore modify the judge=s decision accordingly.  The remainder of the judge=s decision is affirmed.

 

BACKGROUND

 

The employee began working for Trilite Stone Company [the employer] in late 1997 or early 1998, starting in the manufacturing side of the employer=s business in a job that required carrying heavy buckets and bags and pushing wheelbarrows weighing 50 pounds or more.  He later moved into installation work, in a job that was also quite physical and also required heavy lifting and carrying of stone products and cement, as well as setting up scaffolding.

 

On March 7, 2000, the employee sustained a work-related injury to his low back while performing installation work for the employer.^[1]  A CT scan performed on March 23, 2000, disclosed a herniated disc at L5-S1, and the employee subsequently received conservative treatment for low back and left leg pain.  His symptoms decreased over time, and, in August of 2000, he was released, by Dr. David Carlson, to work without restrictions.  However, within just a few days, his low back and left leg pain flared up again, and he was again taken off work.  In a treatment note dated August 16, 2000, Dr. Carlson indicated that the employee was tired of conservative care and had elected to undergo surgery.  That surgery, a laminectomy and discectomy at L5-S1, was performed by Dr. Carlson on December 5, 2000.

 

According to a note from a follow-up exam performed on January 16, 2001, the employee was thought to be doing well, with occasional twinges of left leg pain but Ano other pathology.@  Dr. Carlson indicated at that time that the employee could return to light-duty work with lifting, bending, twisting, and stooping restrictions for the next three months, predicting that, A[a]fter that I think we can release him for full activities.@  Three months later, on April 11, 2001, Dr. Carlson completed a work slip indicating that the employee had no restrictions.  In a progress note of that same date, Dr. Carlson wrote that, although the employee still had intermittent back and left leg pain, possibly from scar tissue, he could Ago back to activities as tolerated without any specific work restrictions.@

 

The employee had begun receiving rehabilitation assistance, from QRC Jessica Kuslich, in June of 2000, a few months after his injury.  In an e-mail dated April 18, 2001, directed to the insurer, Ms. Kuslich wrote as follows:

 

I have spoken with Louis= employer, Jim Wheelock.^[2] They have offered Louis work equal to his date of injury employment effective 4/18/01.  Jim did provide me with a written job offer, as well.  Louis has not yet returned to work, stating he does not have a car right now, but he expects to start next week.  Primary point is work is available as of 4/18/01.

 

On that same date, Ms. Kuslich wrote a letter to the employee, stating:

 

I am writing to inform you I will be closing your file.  You have achieved recovery with regards to your. . . work injury, and your doctor has released you to return to work without restrictions.  Based on this information, and the job offer provided by your employer stating he is willing to accommodate you in employment equal to your date of injury employment, effective 4/18/2001.  No additional services are needed.

 

The following day, on April 19, 2001, Ms. Kuslich completed a rehabilitation closure report, writing that, as the employee had Aachieved medical recovery and is released to return to work unrestricted and has received a permanent job offer from his employer I recommend closure of statutory rehabilitation with rehabilitation goal met.@  An R-8, Notice of Rehabilitation Plan Closure, specified a closure date of April 18, 2001, and noted that the employee had received a permanent job offer from his date of injury employer but had not returned to work for unrelated reasons.

 

At hearing, the employee testified that he had never been made aware that the employer had offered him employment in April of 2001, that he did not recall receiving Ms. Kuslich=s letter of April 18, 2001, discussing the employer=s job offer, and that he had never informed Ms. Kuslich of an inability to report for the job due to lack of transportation.  The employee did admit that he was aware that Ms. Kuslich had closed her file, but he indicated that he had never inquired as to the reason for that action.

 

In May of 2001, the employee began a shipping and receiving job at Home Depot, earning more than his pre-injury wage.  The following month, in June of 2001, Dr. Carlson completed a report indicating that the employee had reached maximum medical improvement [MMI] from his work injury as of June 1, 2001, and that he had an 11% whole body impairment as a result of that injury.^[3]  This report was served on the employee on August 8, 2001.

 

The employee left his Home Depot job in September of 2001, for personal reasons, and for the next two years, until September of 2003, he stayed at home to take care of his young son while his wife worked.  During this period, on February 20, 2002, the employee returned to see Dr. Carlson, indicating that his low back and left leg pain had slowly been returning since Aa little before Christmas@ and that he had had problems Asitting in cars when he has to travel for his job@; however, by this time, the employee was not working.  In any event, Dr. Carlson=s office note indicates that the employee had been getting along well until the past month and a half and was probably experiencing irritation due to scarring from the prior surgery.  An MRI of the lumbar spine performed shortly thereafter apparently disclosed a deformity, compatible with granulation tissue, at L5-S1, and bulging and dehydration at both L4-5 and L5-S1.  The employee subsequently underwent additional conservative treatment and continued to provide child care at home.

 

In September of 2003, financial considerations prompted the employee to reenter the labor market and start looking for work.^[4]  The next month, in October of 2003, the employee sought chiropractic care, from Dr. Ronald Mash, for increased leg pain.  Dr. Mash referred the employee for another MRI scan, which disclosed a herniated disc at L5-S1, causing left S1 nerve sleeve displacement and compression, and a small herniation at L4-5, causing mild impingement on the left L5 nerve sleeve.  Treatment notes indicate that Dr. Mash took the employee off work for 30 days and referred the employee back to Dr. Carlson, who released the employee to work, with lifting, bending, stooping, and twisting restrictions, on November 20, 2003.

 

The employee subsequently worked on a short-term or casual basis at several jobs.  He was paid $600 by his church in November of 2003, after performing some painting work.  The employee testified that part of the money constituted pay for the work and that part of it was charitable assistance due to his lack of income.  The following month, in late December 2003, the employee received $45 for two hours of estimating work for a siding company, and, in March of 2004, he was paid $130 for one day of cutting vinyl siding for that same company.   Finally, in May of 2004, the employee was paid $300 for two days of painting.  Some or all of these jobs caused the employee to experience increased back and leg symptoms.

 

The matter came on for hearing before a compensation judge on June 15, 2004, for resolution of various claims related to the employee=s low back condition.  By this time, the insurer on the risk for the employee=s March 7, 2000, low back injury had become insolvent, and MIGA was handling those claims.  Issues at hearing included the employee=s entitlement to wage loss benefits after October 9, 2003, including issues relating to whether the employee had refused suitable employment, whether the employee=s earnings in his short-term jobs were representative of his earning capacity, whether the employee had conducted a diligent job search, and whether the employee had become medically unable to continue working.  Also at issue was the employee=s claim for rehabilitation assistance.  The parties stipulated that the employee had reached MMI from his work injury effective with service of Dr. Carlson=s MMI report on August 8, 2001.  At the close of the hearing, a discussion was held as to the need to leave the record open to allow for the assertion of claims by potential intervenors.

 

In a decision issued on October 12, 2004, the compensation judge concluded that the employee had refused suitable employment by rejecting the employer=s April 18, 2001, job offer; that the employee had not become medically unable to continue working; and that the employee=s earnings in his short-term post-injury jobs were not representative of his earning capacity.  The judge denied all of the employee=s wage loss claims and issued inconsistent findings regarding the employee=s entitlement to assistance rehabilitation.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals 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 (2004).  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).  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, 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).

 

1. Timeliness of the Compensation Judge=s Decision

 

The employee argues in part that the compensation judge erred by failing to close the record until August 13, 2004, and that her decision, issued on October 12, 2004, was therefore untimely under the relevant statute and rules.  See Minn. Stat. ' 176.371; Minn. R. 1415.3000, subp. 2.  In connection with this argument, the employee contends that the judge=s mistake as to timing somehow caused her to issue erroneous findings regarding the legal and factual issues before her.  We are not persuaded.

 

We note initially that the record is at least arguably ambiguous regarding how long the record was to remain open.  Moreover, we see no indication, contrary to the employee=s contention, that any error in this regard somehow affected the judge=s decisions on the substantive  issues.  Finally, we note that the employee is seeking no particular relief with regard to the alleged timing error, and, in any event, this kind of error provides no basis for vacating or reversing a compensation judge=s decision.  See Ettendgui v. Master Craft Cabinets, 53 W.C.D. 348 (W.C.C.A. 1995).  For all of these reasons, no further discussion of this issue is required.

 

2. Rejection of Job Offer - Temporary Total Disability

 

At hearing, counsel for MIGA indicated that the employer and insurer had paid the employee temporary total disability benefits from March 8, 2000, through August 14, 2000, and again from August 14, 2000, through April 17, 2001.  Alleging that the employee had been released to work without restrictions and had refused the employer=s April 2001 job offer, the employer and MIGA argued that no additional temporary total benefits were payable pursuant to the terms of Minn. Stat. ' 176.101, subd. 1(i), which provides as follows:

 

(i) Temporary 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 section 176.102, subdivision 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.

 

In her decision, the compensation judge concluded that the employee had refused a suitable job offer on April 18, 2001, and she denied the employee=s claim for temporary total disability benefits at least in part on that basis.^[5]

 

On appeal, the employee argues in part that the compensation judge erred in finding that the employee had rejected suitable employment, in that the employee denied ever receiving the job offer.  However, the records of Ms. Kuslich amply support the conclusion that the employer had offered the employee his pre-injury job effective April 18, 2001.  The compensation judge was not required to accept the employee=s testimony to the contrary.  See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989)(credibility determinations are for the compensation judge).

 

The employee also argues that the employer=s offer cannot be considered suitable, in that it was not made in writing, did not specify the nature of the job and the job duties, and was not made in conjunction with service of an MMI report.  It is, however, reasonably inferrable from the record that the employer made the employee a written offer, by virtue of a letter, on the employer=s stationery and signed by Jim Wheelock, specifying that the employer Ais willing to offer [the employee] employment equal to date of injury employment as of 04-18-01.@  Again, the fact that the employee denied receiving this letter is not determinative; the compensation judge was entitled, based on rehabilitation records, to conclude that the offer was communicated to the employee.  Id.  Moreover, the current statute, applicable given the employee=s date of injury, does not require that a job offer be made in writing or that it specify the employee=s job duties.  Compare Minn. Stat. ' 176.101, subd. 3e(e) (repealed 1995).  And, again contrary to the employee=s suggestion, neither the current statute nor its immediate predecessor required that a job offer be made in conjunction with notice of MMI.

 

The employee also contends that the offered job was too strenuous to be considered physically suitable, in that it was the same job that caused the injury and precipitated the need for the employee=s December 2000 laminectomy surgery.  There is some logic to this argument.  However, the fact remains that Dr. Carlson had released the employee to work with no specific restrictions and had in fact anticipated doing so soon after the employee=s surgery.  Also, at least two references in the employee=s medical records would indicate that Dr. Carlson was aware that the employee was a stone mason.  In light of Dr. Carlson=s records, and given the fact that the employee did not offer any medical opinion indicating that the job was not physically appropriate, we simply find no basis to reverse the judge=s conclusion as to physical suitability of the offered job.

 

Finally, the employee argues that the compensation judge erred in failing to recognize that the employee=s Atransportation@ problems, referred to in rehabilitation records as a reason for the employee=s delay to returning to his job with the employer, were related to leg pain caused by operating the manual transmission in the employee=s vehicle.  In essence, the employee is again contending that his refusal of the employer=s April 2001 job offer was reasonable given symptoms caused by the work injury.  However, while medical records contain references to leg pain caused by the manual transmission in the employee=s car, those references do not appear until February of 2002, and there is no evidence, even including the employee=s testimony, that it was leg pain related to driving that caused the employee to reject the employer=s job offer.^[6]  Furthermore, the QRC=s records indicate that the employee=s April 2001 Atransportation@ problems were due to the fact that the employee did not have a car at the time of the offer, with those same records indicating that the employee intended to return to work at the employer the following week, after he obtained a vehicle.  The employee offered no explanation regarding these rehabilitation records, other than to testify that he had simply never talked to the QRC about having transportation problems at all.  Certainly he never testified that he refused the offered job because it was too hard for him to drive with leg pain.

 

Rehabilitation records and Dr. Carlson=s release to return to work without specific restrictions reasonably support the conclusion that the employer offered and the employee refused  an offer of gainful employment that was consistent with the employee=s rehabilitation plan and that the employee was physically capable of performing.  In order to reverse the judge=s conclusion in this regard, we would have to effectively conclude that Ms. Kuslich simply fabricated all of the evidence in the rehabilitation records concerning the offer and the employee=s failure to take the job.  Because substantial evidence supports the compensation judge=s conclusion that the employee refused an offer of gainful employment, we have no option but to affirm the denial of temporary total disability benefits pursuant to Minn. Stat. ' 176.101, subd. 1(i).^[7]

 

3. Temporary Partial Disability Benefits

 

The employee appeals from the compensation judge=s denial of temporary partial disability benefits, arguing primarily that the judge erred in denying these benefits based on the employee=s refusal of the employer=s April 2001 job offer.  We acknowledge that refusal of a job offer within the meaning of Minn. Stat. ' 176.101, subd. 1(i) provides no grounds for denial of temporary partial disability benefits.  See, e.g., Hugill v. Benton County, 64 W.C.D. 220 (W.C.C.A. 2004).  However, the judge based her denial of benefits on other grounds.  Specifically, the judge concluded that the employee=s four short-term jobs, performed on six or seven days over the course of six months, constituted casual and sporadic employment that was not representative of the employee=s earning capacity.  We cannot say that the judge erred in this regard.

 

The employee testified that the money he received for painting work at his church was partially charitable assistance and that even he did not consider the two hours of estimating work, for which he received $45, to be employment.  The employee=s other two jobs were similarly short-term and informal.  Given the nature of the work at issue, and of the pay, it was not unreasonable of the judge to deny temporary partial disability benefits for this minimal employment.  See Hildebrandt v. City of St. Louis Park, No. WC04-162 (W.C.C.A. Sept. 13, 2004); Senich v. Hibbing Rehabilitation, slip op. (W.C.C.A. July 21, 1999)(to be entitled to temporary partial disability benefits, the employee must show something more than Asporadic employment resulting in insubstantial income@).

 

4. Rehabilitation Assistance

 

In her findings, the compensation judge concluded that the employee was not entitled to rehabilitation benefits Abased on the refusal of a suitable job.@  However, in the order portion of the decision, the judge indicated that the employer and MIGA Ashall provide rehabilitation services for the employee.@  Refusal of employment pursuant to Minn. Stat. ' 176.101, subd. 1(i), provides no basis to deny rehabilitation assistance, Hugill, 64 W.C.D. 220, and, in their brief, the employer and MIGA agreed to provide rehabilitation services at the employee=s request.  For these reasons, we order the employer and MIGA to provide reasonable and necessary rehabilitation services and to pay for such services already provided.^[8]

 

 

SEPARATE CONCURRING OPINION

 

THOMAS L. JOHNSON, Judge

 

I concur in the result reached by the majority.