MARCH 28, 2018

No. WC17-6108

EVIDENCE – CREDIBILITY. The assessment of credibility is the unique function of the compensation judge, and any claim that the employee’s past conduct renders the employee’s testimony not credible is to be resolved by the compensation judge.

JOB OFFER – REFUSAL. An employee’s refusal of a job offer does not support denial of temporary total disability benefits where the performance of necessary job duties are outside of the employee’s medical restrictions.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. Gary M. Hall, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: Sandra J. Grove

Attorneys: Gerald W. Bosch, Bosch Law Firm, Ltd., Arden Hills, Minnesota, for the Respondent. Travis J. Adams, Peterson, Logren & Kilbury, P.A., Saint Paul, Minnesota, for the Appellants.




The employer and insurer appellants dispute the compensation judge’s determination that the employee was entitled to temporary total disability benefits due to the employee’s inability to maintain substantial gainful employment. Because substantial evidence in the record supports the compensation judge’s findings, we affirm.


The employee, Daniel Loos, works as a salesperson for the employer, a car dealership that primarily sells pre-owned vehicles. In the normal course of business, customers walking onto the employer’s premises are met by a salesperson, either out on the lot or in the showroom. Each salesperson is responsible for their own customer contacts and assists those customers through the entire automobile purchase process. In addition to walk-ins, salespersons are assigned to customers who telephone or contact the employer via the internet. The telephone and internet contacts typically do not amount to more than one per day. The sales process typically requires walking the customer out to vehicles on the lot and accompanying the customer on test drives. The employee typically sold about twelve cars per month and was among the employer’s most successful sellers.

On January 28, 2016, the employee fell on the lot of the employer. The employee received ongoing conservative medical care for a full-thickness tear of the anterior inferior tibiofibular ligament (AITFL) in his left ankle. On May 13, 2016, the employee underwent left ankle arthroscopy. In June 2016, the employee returned to work with restrictions and gradually resumed full-time work in July 2016. The employee was also able to resume recreational activities, including golf, bowling, and fishing. On December 13, 2016, the employee was found to be at maximum medical improvement (MMI) for the January 28, 2016, work injury. The employee continued to experience some ongoing left ankle pain at that time. The employee’s left ankle was rated at 5% permanent partial disability.

On February 1, 2017, the employee fell again while on the sales lot and reinjured his left ankle. The employee was diagnosed with a high ankle sprain and contusion of the anterior tibia in the area of a chronic fracture. The employee was placed under medical restrictions that included wearing a boot when walking, limiting the left foot to weight bearing as tolerated, and if needed, use of a scooter if the employee could not bear weight on his left foot due to pain. Due to the ongoing pain symptoms, the employee was off of work from the date of injury until March 9, 2017, when the employee was released to sedentary work and restricted to moving with crutches or a knee scooter.

On March 13, 2017, the employer suggested that the employee return to his work as a salesperson. No written job description was offered. Due to the employee’s restrictions, he would be limited to working from a desk in the dealership. The employee understood that he would be paid $9.25 per hour, but any commission earned on sales would have the hourly pay deducted. The employee would be limited to receiving telephone and internet leads (typically one per day) as well as any contacting customer who walked into the office if there was no other salesperson working with that customer and the employee was available. The employee was concerned about his ability to sell cars when he could not meet walk-in customers prior to their entering the building. The employee estimated that such encounters constituted between 80% and 90% of his successful sales. The employee would also be precluded from both accompanying customers onto the lot and from going on test drives due to his medical restrictions.

Due to his concerns regarding the conditions of the offered employment, the employee inquired with a staffer at the Minnesota Department of Labor and Industry (DLI) regarding the job offer and was told that the job offer was not viable. The QRC working with the employee contacted DLI and was told that there was a question as to whether the job offer was “meaningful work.”[1] The employee declined the offered work.

On April 17 and 18, 2017, the employee was under surveillance. The employee was observed mowing his lawn for about twelve minutes, while out of his CAM boot. The video showed the employee putting weight on his left foot and not displaying any obvious signs of discomfort. On April 25, 2017, the employee was observed arriving at a medical appointment. To ambulate, the employee used crutches and placed no weight on his left foot. The employee was wearing the CAM boot.

At the April 25, 2017, medical follow-up, the employee reported no improvement in his left ankle and exhibited swelling. A CT scan was conducted that showed widening of the left tib-fib joint. A repeat arthroscopy with fixation of the syndesmosis was proposed. That procedure was undertaken on June 6, 2017. During the procedure, the left syndesmosis was observed to be unstable. Following the fixation procedure, the employee was directed to be non-weight bearing on his left foot for 8 to 10 weeks. On June 20, 2017, the employee was released to work, but only with no weight bearing on his left foot for 6 to 8 weeks. The employee was explicitly restricted against getting in and out of vehicles. By July 6, 2017, the employee was restricted to 4 hours per day, 4 days per week.

On July 6, 2017, the employee returned to work for the employer, under the restrictions that had been set out in the March 2017 offer of employment. The employee averaged about two leads per week. The employee sold no cars through August 10, 2017. The employee earned wages of $741.61 over the six weeks of this return-to-work period.

On August 10, 2017, the employee’s restrictions were eased. The employee was released to bearing weight as tolerated, with the use of boot or brace as needed. The following week the employee’s permitted hours were increased to 6 per day, 4 days per week. The subsequent week (after the hearing in this matter), the employee was released with no restrictions. The employee sold one car between August 10, 2017, and the date of the hearing (August 24, 2017). The employee was able to subsequently resume fishing and golfing while using a cart.

On April 28, 2017, the employer and insurer filed a notice of intent to discontinue (NOID) seeking to discontinue temporary total disability benefits. On May 22, 2017, the employee filed a medical request for further surgery on his left ankle and the employer and insurer filed a request to terminate rehabilitation services. On June 1, 2017, an order was issued approving the discontinuance. On June 22, 2017, the employee filed an objection to discontinuance, seeking a formal hearing on the order. On August 3, 2017, the QRC filed a rehabilitation request, seeking payment for services rendered. These disputes were combined for hearing before a compensation judge on August 24, 2017. The employee, the QRC, the sales manager for the employer, and the employer’s comptroller (who is also general counsel) were the only witnesses.

The employee’s treating physician, Sarah A. Anderson, M.D., provided a narrative report supporting the employee’s position. Dr. Anderson viewed the surveillance video of the employee mowing his lawn. Dr. Anderson noted the activity was outside of the employee’s restrictions, but did not consider that evidence sufficient to change her opinions.

The compensation judge found that the employee sustained a work injury that resulted in restrictions and wage loss, and that refusal of the March 13, 2017, work offer did not disqualify the employee from temporary total disability benefits. The employee was found to be a qualified employee and the QRC billings were awarded. The judge found that no rehabilitation plan[2] had been filed at the time of the job offer and analyzed the offer under the substantial gainful employment standard. The judge found that the essence of the job was sales and that the employee could not perform that work without the ability to walk “around to greet customers and show them cars on the lot ….”[3] The judge assessed the job offer as “neither consistent with a good faith effort to transition the employee back into the workplace nor meaningful or gainful employment.”[4] The employee was awarded benefits. The employer and insurer appealed the decision.


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.”[5] 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.”[6] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[7] 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 evidence or not reasonably supported by the evidence as a whole.”[8]

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.[9]


The employer and insurer appeal the compensation judge’s finding that the employee was subject to restrictions over the periods for which temporary total disability benefits were claimed and that the compensation judge erred in finding that the job offered in March 2017 was not gainful employment. As the compensation judge applied the correct legal standard and substantial evidence supports the findings regarding both the offered employment and the employee’s limitations, we affirm.

Witness Credibility

The employer and insurer relied heavily on the employee’s 2007 criminal conviction to contend that the employee’s testimony should not be believed. The judge carefully assessed the employee’s testimony, expressly weighing the employee’s contentions in light of factual information available from the record. The judge found that the employee was credible in his testimony that he needed to ice his ankle following mowing without using the CAM boot and that he was unable to work outside of the medical restrictions in place. The existence of a criminal conviction does not, as a matter of law, require a determination that the employee was not credible.

The assessment of witness credibility is the responsibility of the compensation judge.[10] The compensation judge can accept all or any part of a witness’s testimony.[11] So long as the inferences drawn from the factual determinations are reasonable, this court cannot choose different inferences from those of the compensation judge.[12]

In essence, employer and insurer contend that the employee was not truthful in describing the pain that resulted in his medical restrictions in place at the time of the March 2017 job offer. The compensation judge accepted the employee’s testimony regarding his pain symptoms. This testimony is strongly supported by the employee’s medical record where the instability of the syndesmosis was directly observed. As the cause of the employee’s left leg and ankle pain was established as medical fact, the inference that the employee was unable to regularly perform activities outside of his medical restrictions is reasonable. While surveillance observed the employee engaged in limited activities outside of those restrictions, the employee testified as to the increase in pain that resulted, and his persistent, ongoing ankle pain. As that testimony is corroborated by the existence of a high ankle sprain that required surgical repair, the compensation judge’s determination as to the employee’s physical limitations is supported by substantial evidence.

Gainful Employment

The employer and insurer assert that the March 2017 offer of employment constitutes gainful employment that the employee could perform within his restrictions. From this, the employer and insurer contend that the employee is disqualified from receipt of temporary total disability benefits from March 13, 2017, to June 6, 2017. As there was no R-2 in place, the standard for discontinuance is whether “the employee refuses an offer of gainful employment that the employee can do in the employee’s physical condition.”[13] The employee contends, and the compensation judge held, that the job offered did not constitute gainful employment under the statute.

Whether a particular job offer constitutes gainful employment is a question of fact to be resolved by the compensation judge.[14] In this matter, the employee was offered the opportunity to resume selling cars.[15] In recognition of his physical limitations in obtaining access to customers, the employer modified the normal commission compensation to substitute an hourly wage, apparently deducted from any commissions earned.[16] Working within his medical restrictions, the employee was precluded from showing cars on the dealership lot and accompanying customers on test drives. Under these circumstances, the employee’s ability to sell cars is significantly impaired. Upon his return to work, the employee was only successful at selling after his post-surgery medical restrictions had been eased to allow him to return to the lot. The compensation judge could reasonably infer from this fact that the ability to walk on the lot with customers was necessary to perform the work. As the bulk of the employee’s earning capacity arises from commission compensation, the inability to engage in traditional sales activity and thereby complete sales is substantial evidence supporting the compensation judge’s determination that the employer’s offer was not gainful employment under Minn. Stat. § 176.101, subd. 1(i).

Meaningful Employment

In addition to the foregoing issues, the employer and insurer maintain that the compensation judge erred in applying the wrong legal standard by referring to “meaningful” employment. The compensation judge analyzed the issue under the gainful employment standard. The only references to meaningful employment occur in the context of the QRC discussion with DLI and in the last sentence of the compensation judge’s memorandum. This court has referred to the term in a context identical to the word “gainful.”[17] There was no erroneous legal standard applied in this matter. The employee was offered a job selling cars when his physical condition precluded him from engaging in the traditional activities necessary for selling cars. The compensation judge found that this was not an offer of gainful employment within the employee’s restrictions. That determination is supported by substantial evidence in the record. For these reasons, the compensation judge’s decision is affirmed.

[1] Ex. 7.

[2] Known by its DLI form designation as an R-2.

[3] Findings and Order, at 10.

[4] Id.

[5] Minn. Stat. § 176.421, subd. 1(3).

[6] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[7] Id. at 60, 37 W.C.D. at 240.

[8] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[9] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

[10] Johnson by Johnson v. Eliason d/b/a Blitz Auto Sales, 76 W.C.D. 53 (W.C.C.A. 2016) (citing Brennan v. Joseph G. Brennan, 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988)).

[11] See City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980).

[12] Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

[13] Minn. Stat. § 176.101, subd. 1(i); see Gilbertson v. Williams Dingmann, LLC, 77 W.C.D. 297, 307 (W.C.C.A. 2017), summarily aff’d, 894 N.W.2d 148, 77 W.C.D. 313 (Minn. 2017).

[14] Peterson v. Ariel, Inc., No. WC11-5298 (W.C.C.A. Dec. 8, 2011) (citing Hildebrandt v. City of St. Louis Park, No. WC04-162 (W.C.C.A. Sept. 13, 2004)).

[15] The employer and insurer argue that the employee could have performed other duties of value to the employer. No such duties were identified in the March 2017 offer of employment or required of the employee when he returned to work under restrictions beginning on July 6, 2017.

[16] Absent the commission compensation modification, the job offered was plainly not gainful employment. The employee would have been provided the opportunity to sit in an office with limited access to customers and very limited ability to do the things required to make a sale, with little likelihood of any income.

[17] See, e.g., O’Neil v. J Craft, Inc., 72 W.C.D. 681 (W.C.C.A. 2012); Conn v. Aramark Servs., 70 W.C.D. 732 (W.C.C.A. 2010); Kristofferson by Kristofferson v. Arctic Cat, Inc., 70 W.C.D. 139 (W.C.C.A. 2010).