JANICE SPOELSTRA, Employee, v. WAL MART STORES, SELF-INSURED/CLAIMS MGMT., INC., Employer/Appellant.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 27, 2014
No. WC13-5611
HEADNOTES
JOB OFFER; STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(i). Where the employee was not receiving temporary total disability compensation when a job offer was made to her, Minn. Stat. §176.101, subd. 1(i), does not serve as a basis for a denial of future benefits.
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Where a job offered by the employer was no longer available and, in the absence of any rebuttal evidence showing other or further work actually available to the employee in her disabled condition, the employee was entitled to benefits based on her actual wages from her post-termination employment.
Affirmed.
Determined by: Stofferahn, J., Cervantes, J., and Milun, C.J.
Compensation Judge: Adam S. Wolkoff
Attorneys: Mark J. Thalberg, Schneider & Madsen, Willmar, MN, for the Respondent. Gabriel D. Johnson, Thibodeau, Johnson & Feriancek, Duluth, MN, for the Appellant.
OPINION
DAVID A. STOFFERAHN, Judge
The employer appeals from the compensation judge’s finding that the employee did not unreasonably refuse the employer’s offer of a post-injury job as a pharmacy technician. We affirm.
BACKGROUND
The employee, Janice Spoelstra, began working for the employer, Wal Mart, in 2002 at the employer’s store in Worthington, Minnesota. She was hired as a full time deli associate and by 2003 had advanced to a position as department manager of the deli. She held this position for about four years, after which she worked as a department manager in the employer’s housewares, domestics, and hardware departments. When she started at Wal Mart, the employee worked varied shifts. After she became a department manager she began working primarily 7:00 a.m. to 4:00 p.m. weekdays, with one evening and one weekend day. By about 2006 she was placed consistently on a 7:00 a.m. to 4:00 p.m. weekday schedule.
On September 6, 2010, the employee sustained an admitted work injury to the right wrist while lifting five-gallon paint pails. She was eventually diagnosed with distal radial ulnar joint instability of the right wrist.
Following the injury, the employee was initially able to continue working in the hardware department. In March 2011, she was placed on more stringent work restrictions which precluded continuing in that job. The employer gave her light duty work as a greeter.
The employee had right distal radioulnar joint reconstruction surgery on December 5, 2011. Following her surgery, the employee was evaluated for vocational rehabilitation services by Cheri Miller, a Qualified Rehabilitation Counselor (QRC). Ms. Miller found the employee to be a qualified employee for rehabilitation services, and a rehabilitation plan was authorized which called for a return to work with the same employer.
Following the employee’s release to work after her surgery, the employer provided her with temporary light duty work as a fitting room attendant starting March 5, 2012. Because the employer’s policy was that assignments to temporary light-duty positions were limited to about 90 days, the employee was reassigned to a light-duty position as a greeter on June 12, 2012. In these temporary jobs, the employee was primarily assigned to schedules which involved working evenings and weekends. The employee voiced objections to her QRC about this change in her hours, but agreed to work these hours in her temporary assignments.
In August 2012, the employee underwent a functional capacities evaluation which set her permanent work restrictions. She was given restrictions of no lifting over 10 pounds frequently, 20 pounds occasionally, and no lifting from the floor. The employee’s restrictions precluded a return to her former job as a manager in the employer’s hardware department.
On or about September 5, 2012, the employer’s asset protection manager met with the employee to discuss the possibility of returning her to work in the tire/lube/express department. However, this position was subsequently determined to be beyond the employee’s restrictions and the offer was withdrawn.
Following the discussions about this job offer, the employee and her QRC became concerned that the employer might not make an offer that would return her to work within her restrictions, and the employee started a job search for other positions.
On September 12, 2012, the employer prepared a form entitled “Temporary Alternative Duty Assignment,” but with the word “Temporary” crossed out and the word “Permanent” printed above it by hand. The form stated that a permanent position was available for the employee as a pharmacy technician, to start on September 22, 2012. The work schedule was specified only as from 8:00 a.m. to 10:00 p.m. The printed form had language indicating that the position was “at your present rate of pay,” but this language was crossed out. A job description of the duties of a pharmacy technician was attached. The duties primarily included serving pharmacy customers, entering data in a computer, operating a cash register, filling prescriptions, stocking inventory, maintaining the pharmacy area displays and shelving, and monitoring access to secured areas. The job description stated that the entry requirement for working in the position was to meet any “state requirements to work as a Pharmacy Technician, such as minimum age, qualification, registration, certification, and/or licensure when required by the State Board of Pharmacy.”
On the same date, the employer met with the employee and her QRC to discuss this job offer. With regard to scheduling, the employer stated that the work would be performed on “varying shifts” between 8:00 a.m. and 10:00 p.m., the hours that the in-store pharmacy was open, depending on other employees’ schedules. The employee was also told that she would be expected to work at least one weekend shift per month. The employer did not indicate what pay rate would be provided to the employee in this position. The employer did not provide any specific information about the nature of the “state requirements” the employee would need to meet as an entry requirement, or what the employee would need to do to meet them. The employer did indicate that training “would be available,” but did not describe what the training would involve or how long it would take. The employee’s QRC asked that the employee be given a week to consider the job, and a follow-up meeting was scheduled for September 19, 2012.
At the September 19, 2012, meeting, the employee was told that the pay rate would be forty cents less than her present salary in her temporary greeter position. However, it was higher than the wage she earned on the date of injury. The employee’s QRC asked that the employer put the job offer in writing, but the employer declined to do so. The employee was troubled about the lack of specific information on the shifts to be worked. She also expressed dissatisfaction over having to change her work hours from the regular daytime weekday hours she had in her job at the time of injury. Based on her experience with the post-injury jobs she was given after her surgery, she was particularly concerned that she would eventually end up being required to “work all the weekends.” The employer would not provide any reassurance about scheduling other than to reiterate that the work would be scheduled during the hours the pharmacy was open.
The employee declined this job offer, and the employer treated the refusal as a voluntary termination of her employment with Wal Mart. An exit interview form was prepared listing the employee’s last day of work as September 19, 2012, and the employee was asked to clean out her locker. The employee was also told that the employer would not be paying her any further workers’ compensation benefits.
On September 24, 2012, the employee was hired as a part-time light housekeeper and guest services worker at the Historic Dayton House, a bed and breakfast inn in Worthington, Minnesota. The job was part time, working 15 to 20 hours a week at $10.00 per hour. The employee’s duties were within her restrictions and included setting tables, putting out table decorations, and cleaning guest suites. The employee also continued to look for additional or alternative employment through the date of hearing. Formal vocational rehabilitation services were suspended following the filing of a rehabilitation request by the employer on October 31, 2012. After this date, the QRC provided only limited services to assist the employee, including reviewing job logs and holding telephone conferences with the employee to offer her advice and encouragement in her job search.
The employee filed a claim petition on October 8, 2012, seeking temporary total disability benefits from September 19, 2012, to September 25, 2012, and temporary partial disability benefits from September 25, 2012, to the date of hearing. The claim petition also sought vocational rehabilitation services. A hearing was held before a compensation judge of the Office of Administrative Hearings on June 28, 2013. The compensation judge awarded temporary benefits and vocational rehabilitation as requested in the claim petition. The employer appeals.
DECISION
1. Refusal of Job Offer / Temporary Total Disability
At the hearing, the employer took the position that the employee had unreasonably refused the pharmacy tech job, and that her temporary total disability claim was barred by operation of Minn. Stat. § 176.101, subd. 1(i). That statute provides as follows:
Temporary total disability 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.
The compensation judge found that the employee’s refusal of the employer’s job offer was not unreasonable. The judge found the refusal reasonable on two grounds. First, the hours of the job would have required the employee to alter a reasonable and responsible pattern of living, and second, that the job offer was vague and incomplete regarding the job’s work hours and any necessary training. Although the job offer included filling prescriptions and required certain qualifications, the employer’s loss prevention manager testified that the store pharmacist was not involved in the meetings with the employee.
On appeal, the parties’ briefs discuss in detail several prior cases bearing on factors of the kind considered by the compensation judge, in which this court affirmed findings either that an employee’s rejection of a job offer was unreasonable, or that it was reasonable. The employer argues that the specific facts in the present case are most like those in cases in which we affirmed a finding that refusal was unreasonable, while the employee argues for the opposite position. We note, however, that cases in which this court affirmed a compensation judge’s finding as supported by substantial evidence are of limited precedential value. See, e.g., Regan v. VOA Nat’l Housing, 61 W.C.D. 142 (2000); McDonel v. Andersen Windows, slip op. (W.C.C.A. Mar. 21, 2003). These cases do, however, illustrate the extent to which the issue of an employee’s rejection of a particular job offer is dependent on the judge’s weighing of the specific facts and circumstances of the offer and the employee’s situation. However, although the record contains substantial evidence to support the compensation judge’s finding that the employee’s rejection of the job offer was reasonable, we affirm on other grounds.
Minn. Stat. § 176.101, subd. 1(i), specifically provides that temporary total benefits shall cease if the employee rejects a suitable job offer. Accordingly, the statute applies only to situations where an employee is actually being paid temporary total disability compensation at the time the “cessation event” occurs. Clearly, if temporary total disability is not being paid, it cannot “cease.” Falls v. Coca Cola Enters., Inc., 726 N.W.2d 96, 67 W.C.D. 22 (Minn. 2008). In the present case, the employee was not receiving temporary total disability compensation at the time she refused the pharmacy technician job offer, but was instead working full time for the employer in a light duty position. Minn. Stat. § 176.101, subd. 1(i), is not applicable in this situation.
2. Loss of Earning Capacity / Temporary Partial Disability
The compensation judge found that the employee had cooperated with rehabilitation and engaged in a diligent search for employment following the termination of her employment with Wal Mart. The judge also found that the employee was under permanent work restrictions and that her part-time job at the Historic Dayton House was presumptively representative of her earning capacity for the periods for which wage loss benefits were claimed. Accordingly, the judge awarded temporary total disability compensation for the period following the employee’s termination to the first day she worked at the Historic Dayton House and temporary partial disability compensation thereafter based on her reduced earnings in that job as compared to the employee’s earnings on the date of injury.
An injured employee is entitled to temporary partial disability benefits when “the employee is employed, earning less than the employee’s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee’s partially disabled condition is due to the injury.” Minn. Stat. § 176.101, subd. 2(b). Case law refers to a requirement of “an actual loss of earning capacity that is causally related to the injury.” Dorn v. A. J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).
As a general rule, actual earnings are presumed to be an accurate reflection of an employee’s earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Yvonne v. Super One Foods, 70 W.C.D. 654 (W.C.C.A. 2010). The presumption may be rebutted either with evidence affirmatively indicating that the employee’s ability to earn is something different from her post-injury wage or with other evidence affirmatively establishing that the reduction in the employee’s earnings is unrelated to the employee’s disability. See, e.g., Borchert v. Am. Spirits Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998). Whether reduced earnings are attributable to the work injury or to some other factor is a question of fact for the compensation judge.
The employer argues that the higher wages that the employee received in various positions with the employer following her injury, and that she would have received in the pharmacy technician job, were a more accurate measure of her post-injury earning capacity than were her actual earnings working for the Historic Dayton House. The employer also construed the refusal of the pharmacy technician job offer as a voluntary resignation by the employee. Accordingly, the employer contends that any wage loss the employee sustained while working for the Historic Dayton House was merely the result of a personal decision by the employee. On these facts, they contend, the compensation judge should have found that the employer had rebutted the presumption that actual earnings were representative of the employee’s earning capacity.
We note, first, that the post-injury jobs the employee worked for the employer were limited in duration to no more than 90 days. While the pharmacy technician job was offered as a permanent position, the offer was, by its own terms, kept open only until September 19, 2012, and was not re-offered. Further, as the compensation judge noted in his memorandum, there was no evidence offered of any other job actually available to the employee after September 19, 2012, that would have afforded a higher earning capacity than the job at the Historic Dayton House. An employee’s wage in a post-injury job has little evidentiary value for purposes of determining earning capacity if the job is no longer available. Nitz v. Abbott Nw. Hosp., 64 W.C.D. 191 (W.C.C.A. 2004).
Neither a voluntary quit nor an involuntary discharge constitutes a complete bar to workers’ compensation benefits. Rather, a termination for reasons unrelated to the work injury merely suspends the employee’s entitlement to workers’ compensation benefits until the employee re-establishes an entitlement to benefits by showing a causal relationship between the work-related disability and a loss of earning capacity. This is normally established by showing ongoing work restrictions and demonstrating that, despite cooperation with rehabilitation or a diligent job search, the employee has been able to find work only at a wage loss. It has long been the rule in Minnesota workers’ compensation law that “[v]oluntary termination . . . [does] not preclude a claim for benefits upon proof of wage loss attributable to the disability,” Fielding v. Geo. A. Hormel & Co., 439 N.W.2d 12, 15, 41 W.C.D. 942, 945 (Minn. 1989).
The compensation judge could reasonably find that the employer had not rebutted the presumption that the employee’s actual wages were representative of her loss of earning capacity. The award of temporary partial disability compensation was supported by substantial evidence and we affirm.