PERRY WINGEN, Employee/Appellant, v. STATE, DEP=T OF TRANSP., SELF-INSURED, Employer, and RICE COUNTY DIST. ONE HOSP. and MIDWEST RADIOLOGY d/b/a HC CAMPUS IMAGING, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 22, 2008

 

No. WC07-259

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY; JOB SEARCH; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(g).  Where the employee had never received any temporary total disability benefits based on his ultimately admitted work injury, and where, in denying benefits based on a less than diligent job search, the compensation judge applied and appeared to rely on mandatory language in Minn. Stat. ' 176.101, subd. 1(g), which applies expressly only to the cessation and recommencement of benefits, the matter was remanded to the compensation judge for reconsideration.

 

Remanded.

 

Determined by: Pederson, J., Rykken, J., and Johnson, C.J.

Compensation Judge: James F. Cannon

 

Attorneys: Michael G. Schultz, Sommerer & Schultz, Minneapolis, MN, for the Appellant.  Richard W. Schmidt and Whitney L. Teel, Cousineau McGuire, Minneapolis, MN, for the Respondent.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's conclusion that, upon his release to return to work after his injury, the employee did not conduct a search for employment that was sufficiently diligent to satisfy the requirements of Minnesota Statutes section 176.101, subdivision 1(g), for an award of temporary total disability benefits.  We remand the matter to the compensation judge for reconsideration on different legal bases.

 

BACKGROUND

 

On July 5, 2006, Perry Wingen sustained an injury to his right shoulder in the course of his work as a member of the Owatonna Bridge Crew for the State of Minnesota, Department of Transportation, which was self-insured against workers= compensation liability.  Mr. Wingen [the employee] was forty-two years old on that date and was earning a weekly wage of $768.79.  The employee apparently continued to work with increasing symptoms for about a month, and on August 11, 2006, he underwent an MRI scan of the injured right shoulder, which was read to reveal tendinopathy of the rotator cuff tendons, a small partial thickness undersurface tear of the anterior supraspinatus tendon, degenerative fraying and signal abnormality involving the posterior margin of the labrum, a small amount of fluid within the subdeltoid bursa, and degenerative changes at the acromioclavicular joint.  On August 15, 2006, he saw Dr. Reed Johnson at Allina Medical Clinic regarding his injury, who diagnosed right rotator cuff tendinopathy and right shoulder arthritis, prescribed medication, and issued work restrictions against lifting over forty pounds.  Noting in his report of workability that the employee=s injury had occurred while Alifting 100 lb sandbags, lifting jack hammer,@ Dr. Johnson recommended further in his treatment notes a change in job activity Aand if it is not possible, then he wishes to see an orthopedist.@  The employee evidently presented his report of workability to his supervisor on that same date and requested light duty work within his restrictions, but the employer evidently denied his request and sent the employee home,^[1] filing its First Report of Injury three days later, on August 18, 2006.

 

On August 23, 2006, the employer filed a Notice of Insurer=s Primary Liability Determination, in which it denied liability for the employee=s right shoulder injury on the following grounds:

 

The medical records, the First Report of Injury, and the employee=s verbal account of the injury are inconsistent regarding the circumstances and mechanism of the injury.  Further, the employee denied playing softball around the time of the injury, but the medical records document injury on July 8, 2006, performing Aa few diving plays for balls in the outfield.@^[2]  As a result, the medical records do not support the employee=s claim of a work related injury.

 

On September 15, 2006, in the temporary absence of Dr. Johnson, the employee saw Dr. Todd Sykora, also at the Allina clinic, to whom the employee reported being Aabout 60% better.@  Dr. Sykora noted that

 

[t]his seems to be a work-related injury with the [employee=s] story being that he had a definite pop when he was at work and it was very sore and tight and then when he played softball that weekend and that seemed to make it worse, but it seemed the injury was there before he played softball, since he has been playing softball a lot this summer and had no difficulties until he had that injury at work.

 

Dr. Sykora continued the employee=s restrictions to October 2, 2006, tightening the lifting restriction to twenty-five pounds, and referred the employee for an orthopedic surgical consultation.  On October 2, 2006, the employee saw Dr. Johnson again, who reiterated that the employee had apparently injured his shoulder in the course of his work for the employer, now adding that the employee had Afurther aggravated [the shoulder] later that same week when he was playing softball and stopped playing softball as a result of that but the initial pain started while at work and after throwing sandbags.@  Dr. Johnson diagnosed right rotator cuff tendinopathy with tenosynovitis, continued the employee=s work restrictions, and prescribed ibuprofen, stating, AI believe this is a Work Comp related problem, and it should go under Work Comp.@

 

On October 3, 2006, the employee filed a claim petition, alleging entitlement to temporary total disability benefits commencing August 21, 2006, to unspecified medical benefits with Allina Medical, and to the rehabilitation services of a QRC, reserving issues of temporary partial and permanent partial disability benefits - - all consequent to his work injury on July 5, 2006.

 

On October 5, 2006, the employee saw orthopedist Dr. Erik Stroemer of the Orthopedic and Fracture Clinic PA.  Dr. Stroemer diagnosed right shoulder impingement syndrome and right AC joint degenerative joint disease, administered a cortisone injection, and prescribed physical therapy and antiinflammatories, indicating that he had Adiscussed with [the employee] that I do not recommend he have any surgery at this time.@  On that diagnosis and treatment, Dr. Stroemer continued the employee=s release to work with restrictions against doing any overhead work with his right arm and lifting of more than twenty-five pounds with his right arm, specifically adding a restriction against working with a jackhammer.  Dr. Stroemer continued those restrictions unchanged on November 14, 2006, and in office notes on that date he reported that the employee was

 

currently in a legal case with his work over if this is a Workers= Compensation injury or not.  According to the [employee] when I saw him, he felt that his shoulder was injured at work throwing sand bags.  However, there is some argument over if he injured it in softball[,] which I cannot decide.

 

On that same date, Dr. Stroemer administered another cortisone injection and continued the employee=s physical therapy, indicating that, if the employee did not improve in four to six weeks, he would probably recommend surgery.  On December 19, 2006, with the employee still complaining of pain in his right shoulder with certain activities, and feeling that Awe have given it a legitimate chance to heal on its own with cortisone injections and physical therapy,@ Dr. Stroemer recommended arthroscopic subacromial decompression and AC joint resection.  The employee elected to proceed with the surgery, and Dr. Stroemer continued his light duty restrictions until the date of the surgery.

 

On January 19, 2007, the employee was examined for the employer by orthopedist Dr. Paul Yellin.  In his report on that date, Dr. Yellin diagnosed the employee=s condition as being Aconsistent wth right shoulder impingement syndrome and rotator cuff tendinopathy . . . with possible partial tearing of the supraspinatus@ and A[m]ild degenerative changes . . . in the labrum.@  He also noted similar but asymptomatic findings in the employee=s left shoulder.  Dr. Yellin found the employee=s current restrictions against lifting over twenty-five pounds, against lifting above shoulder level, and against doing any jackhammer work to be appropriate based on the employee=s August 11, 2006, MRI scan.  He concluded that the employee Adid sustain a Gillette injury to his right shoulder in or around early July 2006 @ and that, Aif he did have a diving episode while playing softball after his injury . . . , this would cause further aggravation of his right shoulder condition.@  Dr. Yellin also concluded in part that the employee had not yet reached maximum medical improvement with regard to his right shoulder work injury and that the arthroscopic surgery that had been recommended to repair it was reasonable and necessary to cure and relieve the symptoms of that injury.  He indicated further that he would apportion responsibility for the employee=s right shoulder condition 50% to pre-existing problems and 50% equally divided between his date-of-injury work activities and any softball activities that occurred after that date.

 

On January 25, 2007, Dr. Stroemer performed the recommended arthroscopic subacromial decompression and AC joint resection, together with labral debridement.  Subsequent to that surgery, the employee was restricted from working until May 1, 2007, on which date he was discharged from physical therapy and Dr. Stroemer released him to return to light duty work with restrictions against doing any overhead work and against lifting over ten pounds.  In a letter to the employee=s attorney on that same date, Dr. Stroemer indicated that he had

 

discussed with [the employee] that these kind of shoulder problems can tend to be chronic and even though he is progressing nicely at this point it may be beneficial to him to pursue work that is somewhat less strenuous on the shoulders to assure himself further pain free working condition.

 

On May 8, 2007, Dr. Stroemer relaxed the employee=s lifting restriction to twenty-five pounds.  Later that month, in a report to the employee=s attorney on May 29, 2007, the doctor opined in part (1) that the employee=s work for the employer did substantially contribute to the development of his right shoulder inflammation and impingement syndrome, (2) that his treatment for that condition had been reasonable and necessary, (3) that the injury had resulted in permanent partial disability to 3% of the body as a whole, and (4) that, while he still did have some temporary restrictions, within six months the employee would reach maximum medical improvement and be free to work without any restrictions.  By June 12, 2007, Dr. Stroemer had relaxed the employee=s lifting restriction to fifty pounds and had released him of his overhead work restriction, adding, however, a restriction against jackhammer work, and on July 24, 2007, he released the employee to return to work restricted only from doing any jackhammering or hammer drilling.  Upon this release to working within these restrictions, the employer evidently returned the employee to a modified position in his pre-injury job status and at his pre-injury pay.

 

The matter came on for hearing on August 15, 2007.  By the time of hearing, the employer had apparently conceded liability for the employee=s July 5, 2006, work injury, presumably based in part on the opinion of its independent medical examiner Dr. Yellin, leaving the sole issue at hearing, as stated by the compensation judge in his eventual findings and order,

 

[w]hether the employee was required to conduct a diligent job search with other prospective employers, for work within his work restrictions due to the work-related right shoulder injury of July 5, 2006, during the period from August 15, 2006, the date the employee was released to return to work within work restrictions, to January 25, 2007, the date of the employee=s surgery, in order to be entitled to temporary total disability benefits during this period.

 

The employee testified at hearing in part that, over the course of the five months following August 15, 2006, he continued to provide the employer with notices of his light duty work restrictions and that the employer neither asked him to stop providing such notices nor offered him any light duty work.  He testified also, over the objection of the employer, that during that same period he searched for jobs in the newspaper on a weekly basis.  The employer=s objection was based on a contention that the employee=s testimony was contrary to his own earlier deposition testimony in November of 2006, to the effect that the employee, who had kept no job search records, had not looked for any work during that same period.  The objection was overruled.  The employee testified further that he was a member of the AFSCME union and, as such, received various very substantial union benefits, including the right to bid other jobs, and that, during that same five-month period, he attempted to bid himself into three light duty jobs with the employer but was unsuccessful.  The employee acknowledged on cross-examination that no one at the employer during the benefits period at issue ever told him that he would or would not be able to return to work for the employer at any point in the future, and no one in his union ever guaranteed him that any type of light duty work would ever be available to him with the employer in the future.

 

By findings and order filed November 8, 2007, the compensation judge concluded that the employee was required by mandatory language of Minnesota Statutes section 176.101, subdivision 1(g), to conduct a diligent job search during the period at issue and that he did not do so.  On that basis the judge denied the employee=s claim for temporary total disability benefits during the period at issue.  The employee appeals.

 

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

 

The compensation judge emphasized early in his memorandum that, A[u]nder Minn. Stat. ' 176.101, subd. 1(g), . . . total disability benefits shall cease when the total disability ends and the employee fails to diligently search for appropriate work within the employee=s physical restrictions@ (underscoring in the judge=s original).  Citing this court=s decisions in Glasow v. Gresser Concrete Masonary and Chilton v. Brown Minneapolis Tank, the judge goes on immediately to acknowledge, however, that

 

case law following the enactment of this statute has held that where there appears to be a reasonable possibility that an employee might return to work with his prior employer, it may not be reasonable to require an immediate search for work elsewhere, in order to be eligible for temporary total disability benefits.

 

See Glasow v. Gresser Concrete Masonary, slip op. (W.C.C.A. April 18, 1995); Chilton v. Brown Minneapolis Tank, slip op. (W.C.C.A. July 8, 1996).  The judge then goes on in his memorandum to distinguish the case here at issue from the exceptions established in Glasow and Chilton, concluding that, during the benefits period at issue, the employee did not conduct a search for employment that was diligent enough to satisfy the requirements of the statute because, contrary to the Abrief@ and Ashort@ one- and two-month periods at issue in Glasow and Chilton, respectively, the employee in this case did not search diligently for work for over five months.

 

The employee contends that, while he may not have searched for work very diligently with any prospective employers other than his date-of-injury employer, his ongoing inquiry into light duty work with his date-of-injury employer was both diligent and reasonable under the circumstances and throughout the period at issue.  He argues essentially as follows: that he was not provided with vocational assistance during the period at issue; that he had every intention and expectation of returning to work eventually with the employer; that he continued throughout the period at issue to provide the employer with his restrictions slips and was exploring a modified return to work both with his immediate supervisor and with his employer-affiliated union; that he was a long-time member of that union, with many valuable and vested benefits, including pension, PERA, health insurance, and union job security; that, during the period of his claim, he attempted to bid into at least three lighter duty job classifications at the employer, including ones requiring transfer within the employer; that at no time did his supervisor advise him that no modified or otherwise appropriate job would ever be forthcoming for him at the employer; that during the period at issue he was engaged in physical therapy and awaiting approval of recommended surgery, both of which were designed and expected to restore him to a near pre-injury working capacity; that following his surgery he was determined by his then-assigned vocational counselor to be not eligible for vocational rehabilitation assistance based upon a presumption that he would return to his pre-injury job; that indeed his therapy and surgery did return him to the ability to perform a modified version of his pre-injury job at his pre-injury wage, with full union benefits.  Concluding that the compensation judge applied a statutory provision inapplicable to the employee=s situation and that that inapplicable provision appears to have weighed materially on the judge=s decision, we remand the matter to the compensation judge for reconsideration.

 

In denying the employee=s claim, the compensation judge applied subdivision 1(g) of Minnesota Statutes section 176.101, which provides in toto as follows:

 

Temporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee=s physical restrictions.  Temporary total disability compensation may be recommenced following cessation under this paragraph only if the employee begins diligently searching for appropriate work within the employee=s physical restrictions prior to 90 days after maximum medical improvement and prior to payment of 104 weeks of temporary total disability compensation.  Once recommenced, temporary total disability compensation ceases when any of the cessation events in paragraphs (e) to (l) occurs.

 

Minn. Stat. ' 176.101, subd. 1(g) (underscoring added).  This is a provision applicable to the cessation and recommencement of benefits.  Here, the self-insured employer had denied primary liability for the employee=s injury and had not commenced payment of temporary total disability compensation.  The provision cited and emphasized by the judge is not applicable to this case.  Although the judge did analyze the case also under case law addressing a judge=s factual determination as to the reasonableness of an employee=s expectation of returning to work with the pre-injury employer, we cannot tell to what extent the judge may have felt compelled to reach the conclusion he did under the mandatory language of the inapplicable statute.

 

We therefore remand the matter for the judge=s reconsideration.  Upon remand, the judge should bear in mind that the mere length of the period of benefits at issue, which was emphasized by the judge, is, while relevant, only one factor among many to be considered.  See Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733-34, 40 W.C.D. 948, 954-56 (Aa diligent job search . . . is a search that is reasonable under all the facts and circumstances@); see also, e.g., Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989) (the number of job contacts is but one factor to be considered in evaluating an employee=s job search efforts) (citation omitted); Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (the reasonable diligence of a job search is to be viewed within the scope of assistance provided by the employer and insurer); Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 840, 39 W.C.D. 758, 759-60 (A[t]he test of reasonableness [of job search diligence] does not require the claimant . . . to sacrifice his long-range ambitions and seize any short-range line of work that is open to him@) (citations omitted).  The judge may rehear arguments of the parties or take additional testimony as he deems appropriate.