Shannon Gilbertson, the employee, worked as a funeral director for Williams Dingmann, the employer, for over seven years.  As part of her job, she removed bodies from the place of death, embalmed, and dressed them.  She transported flowers and equipment to and from the funeral home.  She performed administrative tasks in the office.  She worked a regular schedule, but also worked “on-call” which often meant that she would be called after regular hours to remove a body from the place of death.  While she was paid for 40 hours, she typically worked a total of 36 to 38 hours a week.  In 2011, as a parent of young children, and with a spouse who traveled for work, the employee found it difficult to work “on call” and manage her family and work schedule.

The employee understood that the employer would accommodate the employee’s schedule to address her difficulties with child care.  The employer discussed the possibility of an accommodation with the employee but did not arrive any specific plan.  When no accommodation was provided by the employer, the employee decided to resign her position, effective December 31, 2011.  The employee submitted her planned resignation in a letter to the employer dated September 26, 2011.  Less than three weeks after she wrote the letter, on October 13, 2011, while moving caskets and dressing and preparing human remains, the employee suffered a large herniated disc encroaching on nerves at the L5-S1 level of her low back.

The employee’s treating doctors took her off work for several months and she received temporary total disability (TTD) benefits.  Both her treating doctor, Dr. Strothman, and the independent medical examiner (IME), Dr. Davis, advised that she undergo surgery.  The insurer assigned a qualified rehabilitation consultant (QRC) to her.  The QRC primarily managed the employee’s medical treatment.^[1]

Through injections and physical therapy, the employee’s significant and severe low back and leg symptoms subsided.  She was released to return to work on April 11, 2012, with moderate restrictions.^[2]    The next day, a rehabilitation plan was completed by the QRC.  Under the “QRC Comments” section of the plan, the QRC wrote: “Ms. Gilbertson would like to return to her same industry and different employer.”  The QRC also indicated on the form that the vocational goal was to “RTW different employer.”

On June 18, 2012, Douglas Dingmann, mortician and funeral director of Williams Dingmann, wrote to the employee offering her a job.  A funeral director position was available due to the departure of another director.  While the employee had previously resigned her position, Mr. Dingmann reasoned that perhaps she would change her mind and take the job.  The specifics of the job were not clearly delineated in the job offer, but Mr. Dingmann believed the modified job would accommodate the employee’s lifting restrictions.^[3]  A lift provided in the embalming room which crossed the entire ceiling of the room could lift up to 1000 pounds.^[4]  The lift could be used to transfer bodies from the cot onto a table, and from the table into a casket.^[5]  It could also be used to lift a leg or heavy body part during the embalming process.  When taking the body from the place of death, as long as the employee as a licensed mortician signed the documents, part-time staff would help the employee transfer the body.^[6]  Staff could also assist the employee with lifting flowers.^[7]  While only licensed morticians could be in the preparation room at the time of embalming according to state law, based on his understanding of that law, Mr. Dingmann reasoned that staff could assist the employee with lifting or transfers before the embalming process took place.^[8]  Being a small business, Mr. Dingmann had no experience with any other workers’ compensation claims.^[9]  Because he “sincerely wanted to hire her,” he believed offering her the departing funeral director’s position would solve the problem of filling the funeral director position.  Mr. Dingmann testified that he did not consider the employee’s family situation at the time of the offer.^[10]  He did not discuss the job offer with the QRC, but the employer’s business manager, Joel Athman, had talked to the insurer’s claims adjuster in the past about offering a light duty position to the employee.^[11]  When the position became available, Mr. Dingmann wrote to the employee:

The employee received the job offer.^[12]  She had not yet retained her attorney.  On June 22, 2012, the employee sent the QRC an email:  “Jennifer, I received a job offer from my former employer (out of the blue).  Will my benefits be effected [sic] when declining this offer? Shannon.”

The QRC, who had not seen a copy of the job offer nor was aware of the specifics, replied a few hours later.^[13]  She wrote, “Great, question.  I don’t think you[r] benefits should be affected, as you indicated to your company that you would be retiring in December, which was stated prior to your injury.  Also - - you are under restrictions and if they can accommodate them, you can go back.  I know that your personal and treatment goal is to be strong and be released of any restrictions, which at that time, your benefits will run out after 90 days per MN Work Comp Guidelines.”

Shortly after receipt of the QRC’s email, the employee emailed Mr. Dingmann who had offered her the job.  She wrote, “Thank you for the offer but I am going to decline the position.  Respectfully, Shannon.”  No further communication occurred between the employee and the employer.  After the employee turned down the job offer, Mr. Dingmann began a search for a new director who was eventually hired in September 2012.^[14]  He testified that if the employee had contacted him and reconsidered, the employer would have considered her for the job again.^[15]  The employee testified that she believed she could not perform the job offered because there were only two licensed morticians who could embalm the body and there was no device to help lift limbs.^[16]

The employer and insurer filed a Notice of Intention to Discontinue Workers’ Compensation Benefits (NOID) with the Office of Administrative Hearings based on the employee’s rejection of the job offer pursuant to Minn. Stat. § 176.101, subd. 1(i).  Compensation Judge James K. Kohl granted the NOID and the employer and insurer discontinued payment of TTD benefits.

In July 2012, the employee filed a Rehabilitation Request seeking a change in QRC to PAR Rehabilitation.  A Decision and Order of October 8, 2012, instead granted a termination of rehabilitation services.  The employee appealed the decision.  On October 29, 2012, the QRC filed a closure form (R-8) despite the pendency of the appeal.

The employee underwent a functional capacities evaluation (FCE) in October 2012 which recommended that if she worked in the funeral business, it would have to be for an employer that would accommodate her lifting abilities and not expect her to perform lifting of heavy bodies and caskets.  The FCE concluded that she could carry up to 60 pounds and 75 pounds in a waist to waist lift.

In March 2013, the employee reached MMI and Dr. Strothman assigned a 9% permanent partial disability rating.

In July 2013, the employee experienced a return of severe low back pain.  She increased the use of pain medication and began using a cane for support.  She also began experiencing bladder and bowel dysfunction.  On August 9, 2013, PAR’s QRC filed a Rehabilitation Request after providing a rehabilitation consult to the employee.  An objective of rehabilitation was medical management in light of the employee’s increased symptoms.

On August 29, 2013, the employee underwent a left discectomy at the L5-S1 level.  Both Dr. Strothman, the surgeon, and Dr. Davis, the IME, concluded that the need for surgery was related to the work accident of October 13, 2011.  The employee lost time from work while recovering from the surgery from August 29, 2013, to September 16, 2013.  Dr. Strothman released the employee to return to work without restrictions on November 15, 2013, but was told that she “will need ongoing continual help lifting heavy objects/bodies.”

From April 11, 2012, when the employee was released to return to work, the employee worked three different jobs.  The first job was 31 Gifts, selling products at people’s homes in a fashion similar to Tupperware or Mary Kay.  The employee worked for 31 Gifts from September 22, 2012, to June 30, 2013.  She earned less than $3,000 over the course of a year in 2013.  The employee also received in-kind compensation ascribed a dollar value of $2,986.92 over that period.  She worked for Kelco Supply Co. beginning in July 2013 in commission sales in the funeral industry.  She began working for the Neptune Society in July 2014.  The employee claimed entitlement to temporary partial disability (TPD) benefits for the difference in income she earned following her work injury.  The employer and insurer argued that had the employee accepted the job offered by Dingmann Williams, she would not be at a wage loss.  They also claimed that the job at 31 Gifts selling products at house parties was sporadic and insubstantial income and not close to the employee’s earning capacity.

The parties tried this matter over the course of three separate days.  After the first hearing on October 15, 2014, the employee filed a Claim Petition along with a Motion to Consolidate the requests for formal hearing.  She claimed temporary total, temporary partial and vocational rehabilitation benefits as well as satisfaction of the intervenor claims.  The matter was set for two additional dates of hearing, May 14, 2015, and May 15, 2015, before Compensation Judge Danny Kelly.  The compensation judge awarded temporary partial disability benefits when the employee was working.  He also awarded rehabilitation benefits through PAR Rehabilitation.  He denied temporary total disability benefits.  The employee appeals the denial of temporary total disability.  The employer and insurer cross-appeal the findings on rehabilitation and temporary partial disability benefits.

In denying the employee’s claim for temporary total disability (TTD) from June 25, 2012, to September 21, 2012, the compensation judge found that the employee never intended to return to work with the employer.^[17]  The employee made a personal decision to limit job opportunities to avoid on-call employment situations.^[18]  The compensation judge further found that the employee refused a job offer of gainful employment that she could do in her physical condition. ^[19]  He found that the employee refused the employer’s job offer without any reliance upon the QRC’s responses concerning the effect of the job refusal on workers’ compensation benefits.^[20]

On appeal, the employee claims that the compensation judge erred in denying TTD benefits following the rejection of the job offer by the employer.  She claims that it was reasonable to refuse the job offer because the job offer was not consistent with the plan of rehabilitation.  As the rehabilitation plan specified that the employee’s goals were to return to work with a different employer, the employee contends that refusing the job offered by her date-of-injury employer was consistent with the plan of rehabilitation under Minn. Stat. § 176.101, subd. 1(i).  The employee also argues that the weight of the evidence does not support the compensation judge’s finding that the employee unreasonably refused the June 18, 2012 job offer.  She argues that her “pattern of living” would be altered had she accepted the job.  Since she initially resigned the job due to family issues, she could not possibly accept the job because she had the same issues and required a regular schedule.

The employer and insurer respond that the job offer was consistent with the rehabilitation plan and the employee had no reasonable basis to reject the job offer.  They argue that the pattern of living cases cited by the employee are not applicable here where the employee was not offered a job outside of the shift and times she worked at the time of her injury.  The employer offered a job within the employee’s restrictions and had accommodations in place.  They argue that the employee’s preference was to avoid on-call work which is a personal preference and renders the employee’s rejection of the job offer not causally related to the work injury.

Continued entitlement to temporary total disability is governed by Minn. Stat. § 176.101, subd. 1(i) which provides:

In this matter, the QRC assigned by the employer and insurer developed a rehabilitation plan which explicitly identified returning to work with a different employer than the date-of-injury employer.  The employer and insurer did not object to the terms of the rehabilitation plan, as it is their right to do.^[21]  The job offer, which expressly requires returning to work with the date-of-injury employer, is plainly inconsistent with the rehabilitation plan.  The employer and insurer argues that discontinuance of temporary total disability benefits is nevertheless appropriate because the job offered is work that could have been performed by the employee with reasonable accommodations that the employer was willing to make on an “as needed” basis.  We disagree.

The language of the statute is unambiguous.  The employee had a rehabilitation plan which set the goal of returning to work for a different employer.  The date-of-injury employer made an offer of work and that offer was refused by the employee.  As the offer of work did not meet the statutory standard of complying with the existing rehabilitation plan, there is no basis for terminating temporary total disability.  Rather than apply the unambiguous statutory provision, the compensation judge analyzed the issue under the alternate standard, refusal of suitable gainful employment.  That standard is only applicable where there is no filed rehabilitation plan.  The denial of temporary total disability benefits is reversed.

The employee asserts that the employer and insurer is estopped from raising the employee’s refusal of the job offer as a defense due to the actions of the QRC.  Additionally, the employee maintains that the job offered by the employer is not suitable as being within the employee’s medical limitations and inconsistent with the employee’s established pattern of living.  As the entitlement to temporary total disability has been determined through the unambiguous language in Minn. Stat. § 176.101, subd. 1(i), we decline to address these issues.

The compensation judge found that the employee established by a preponderance of the evidence that from September 22, 2012, to August 28, 2013, the employee’s actual earnings constituted a fair measure of her earning capacity in her temporarily partially disabled condition and accordingly she is entitled to TPD.^[22]  He also found that the employer and insurer failed to rebut the presumption that the employee’s actual earnings are an actual reflection of the ability to earn or earning capacity.^[23]

On cross-appeal, the employer and insurer argue that the employee is not entitled to TPD while working for 31 Gifts.  They argue that since the employee refused the offered job which paid the same as her date of injury employment, she is not entitled to TPD benefits.  31 Gifts paid significantly less than that which she earned at the time of her injury.  The employer and insurer maintain that earning capacity was established with the job offer.  The employer and insurer further argue that the job at 31 Gifts provided sporadic and insubstantial income which was well below the employee’s actual earning capacity.  Therefore, they should not be required to pay ongoing TPD benefits.

It has long been the rule that 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. § 176.010, 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).  This presumption can be rebutted with evidence affirmatively indicating that the employee’s ability to earn is 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.  Spoelstra v. Wal Mart Stores, 74 W.C.D. 65 (W.C.C.A. 2014).

The Workers’ Compensation Act provides a mechanism to stop paying temporary total disability benefits where the employee rejects employment.  The statute does not require discontinuance of subsequent TPD benefits where an employee rejects employment.  Wheelock v. Trilite Stone, No. WC04-312 (W.C.C.A. Aug. 1, 2005) (citing Hugill v. Benton County, 64 W.C.D. 220 (W.C.C.A. 2004).  The employer argues that wages of $3,000 for the year 2013 is insubstantial and that those sums were earned sporadically.  The employee’s actual compensation was approximately $6,000 when in-kind payments were included.  Absent evidence to the contrary establishing that the employee’s earning capacity was higher during the time she worked at 31 Gifts, the compensation judge did not err in finding that the employee was entitled to TPD benefits.  Further, the employer’s job offer was withdrawn, effective June 25, 2012, and there is no evidence that any suitable job with greater earning capacity was available to the employee in 2013.  We affirm.

The compensation judge found that the employee established, by a preponderance of the evidence, that the rehabilitation services provided by PAR from August 1, 2013, to November 16, 2013, were reasonable and necessary and in accordance with Minn. Stat. § 176.102.^[24]

On cross-appeal, the employer and insurer contend that PAR cannot be awarded reimbursement for rehabilitation services provided due to the earlier closure of such services and the lack of a prior request for reopening of those services.  The rule cited by the employer and insurer, Minn. Rule 5220.0950, subp. 1.A., does not explicitly require that disputes over rehabilitation must be addressed in advance.  Rather the rule states that a party “may request assistance to resolve the disputed issues by filing a Rehabilitation Request . . . .”  Where a QRC chooses to provide services prior to obtaining approval, the QRC runs the risk of receiving no compensation.  There is no bar to compensation on the basis of failing to obtain prior approval.  Parker v. Univ. of Minn., slip op. (W.C.C.A. Sept. 16, 2003); Najarro v. Minn. Minerals & Aggregates, Inc., No. WC09-193 (W.C.C.A. Dec. 21, 2009); Breeze v. FedEx Freight, No. WC14-5687 (W.C.C.A. Aug. 26, 2014).

The employee testified that in July 2012, her low back pains significantly increased and she needed someone to help her with the next step.^[25]  PAR helped her.^[26]  Medical management is an important element in vocational rehabilitation.  Minn. R. 5220.0100, subp. 20.  It enables the employee to obtain medical treatment and restrictions following a work injury so the employee is physically ready to return to work.  Minn. Stat. § 176.102, subd. 4.

The employee was found by the compensation judge to be a “qualified employee” within the meaning of Minn. R. 5220.0100, subp. 22, for rehabilitation services.  Refusal of a job offer is not a basis for denial of rehabilitation services.  Wheelock, No. WC04-312 (W.C.C.A. Aug. 1, 2005) (citing Hugill, 64 W.C.D. 220).^[27]  An R-8 had been filed in this matter so the employee was under no obligation to seek approval of a change in QRC.  Having chosen to provide rehabilitation services prior to approval, PAR was entitled to payment in the event that the employee was found to be qualified and the services found to be necessary and reasonable.  The compensation judge is affirmed on this issue.

Based on the foregoing, we affirm in part and reverse in part the compensation judge’s findings and order served and filed on August 27, 2015.