TEMPORARY TOTAL DISABILITY – RETIREMENT; TEMPORARY TOTAL DISABILITY – WITHDRAWAL FROM LABOR MARKET. The compensation judge’s determination that the employee did not retire or withdraw from the labor market through his application for, and receipt of, SSDI benefits is supported by substantial evidence in the record.
TEMPORARY TOTAL DISABILITY; JOB OFFER – REFUSAL. The compensation judge’s determination that the employee did not unreasonably refuse an offer of employment due to a significant disparity between the offered pay and the employee’s date of injury wage is supported by substantial evidence in the record.
JOB SEARCH - SUBSTANTIAL EVIDENCE. The compensation judge’s determination that the employee conducted an adequate job search is supported by substantial evidence in the record where the employee’s age, physical limitations, and specialized skills rendered few appropriate openings and the employee applied for the openings identified by the employer and insurer’s vocational expert.
EVIDENCE – ADMISSION; EVIDENCE – VOCATIONAL EXPERT. The compensation judge did not abuse his discretion in admitting vocational expert reports over a hearsay objection where no effort was made to depose the witness before trial and no request was made to hold the record open to conduct such an examination.
Compensation Judge: James F. Cannon
Attorneys: Brandon L. McLaughlin, Lindburg Law, P.C., Sauk Rapids, Minnesota, for the Respondent. Bretta I. Hines, and Larry J. Peterson, Peterson, Logren & Kilbury, P.A., Roseville, Minnesota, for the Appellants.
Affirmed.
SEAN M. QUINN, Judge
The employer and insurer appeal from a decision of a compensation judge denying their petition to discontinue temporary total disability (TTD) benefits. We affirm.
On May 7, 2015, the employee, Michael Otto, suffered an admitted work injury to his neck and left shoulder while working for the employer, Heartland Motor Company. He underwent a C5-7 fusion on March 12, 2018. Following his recovery from the surgery, the employee was given permanent work restrictions including limitations on lifting and overhead activity that prevented him from returning to his pre-injury employment as an auto mechanic. Although causing no additional work restrictions, the employee also suffered from post-fusion dysphagia, a feeling of a lump in his throat and a gagging sensation. When the dysphagia symptoms flared, the employee would become nauseous and vomit. The symptoms also gave him dyspnea, a shortness of breath. The dysphagia and dyspnea conditions also led to anxiety.
The employee applied for social security disability insurance (SSDI) benefits before he was released to return to work. His claim for SSDI benefits was granted with benefits beginning in November 2018. The employee was also receiving TTD benefits from the employer and insurer.
After taking into consideration the employee’s work restrictions, consulting with the employee and his QRC, Troy Zenzen, the employer offered the employee a job as a diagnostic technician. According to the service manager, the employee was a very experienced mechanic who, prior to the injury, could do just about any task given to him. He had been one of the highest paid mechanics in the shop. He had worked at a very high-volume, high-efficiency level, with approximately 30 years of experience with the employer. The employer tailored the job requirements to meet the employee’s restrictions in an effort to keep him with the company.
The technician job offer included benefits identical to what the employee received while working as a mechanic. However, the employee earned a weekly wage of $1,601.40 as a mechanic at the time of his injury while the technician job paid only $600.00 per week.
Both the QRC and the employer and insurer’s vocational expert, Debra Bourgeois, agreed that the job offer was within the employee’s skills and restrictions. The QRC stated that due to the large wage disparity, the job offer was not suitable and thus was inconsistent with the rehabilitation plan. Ms. Bourgeois, however, was of the opinion that the job offer was for suitable employment and was consistent with the rehabilitation plan. She based her opinion on the job market, the employee’s limitations, his ability to do the job, and the willingness of the employer to “work with the employee” on various accommodations. At the hearing, she also stated that it was easier for a date-of-injury employer to accommodate the injured worker than a different employer, the job was a sure thing, and if the employee would take the job, he would then have time, while also receiving temporary partial disability (TPD) benefits, to look for other work.
Although he believed he could do the job, the employee rejected the job offer from the employer due to the $1,000.00 decrease in weekly wage. He testified that he did not reject the job because of the SSDI award.
After the employee rejected the job offer, the employee made no further contact with the employer to discuss employment. Likewise, the employer made no additional contact with the employee.
As part of her vocational evaluation, Ms. Bourgeois identified two jobs with different employers in the labor market that were within the employee’s restrictions and skill set. The employee applied for those two jobs but did not get hired. At trial, he testified that he informed the potential employers of his gagging difficulty, despite having no restrictions due to the condition. The employee thought that any potential employer needed to know that the symptoms could flare on the job and affect interactions with customers.
The QRC completed rehabilitation plan amendments in November 2018 and again in February 2019, recommending job placement and job development. The employer and insurer refused to authorize these recommendations. The employee searched for work on the internet and by going to a job search facility, but he kept no records of his job search. He testified that he had no intent to retire or withdraw from the labor market. He was hoping he would be able to regain his feeling of self-worth by finding a job closer to his pre-injury wage and was willing to take any job paying close to that wage. The employee testified that he was aware that he would receive TPD benefits if he took a job paying less than his pre-injury wage, and that he could be eligible for up to 225 weeks of those benefits.
On January 22, 2019, Todd Paulson, M.S., conducted an independent vocational evaluation of the employee at the request of the employee’s counsel. According to his report, Mr. Paulson assessed the position offered to the employee as not economically suitable. He also considered the position as not indicative of the general availability of employment as the job was tailored to the employee’s restrictions, which limited him to sedentary or very light work. On March 8, 2019, Mr. Paulson supplemented his earlier report, responding to the opinion of Ms. Bourgeois. Mr. Paulson suggested that retraining could provide the employee with an opportunity to obtain a position nearer to his pre-injury wage. Also, on March 8, 2019, the QRC issued a narrative report opining that the wage difference between the employee’s pre-injury job and that of the offered job rendered the job offer not economically suitable.
After the employee refused the job offer, the employer and insurer filed a petition to discontinue TTD benefits. At the hearing, the employee and several co-workers testified. Neither the QRC nor Mr. Paulson testified, but their reports were offered into evidence. The employer and insurer objected to the QRC’s March 8, 2019, report due to the inability to cross-examine him. Later in the hearing, counsel for the employer and insurer suggested an objection had been made to Mr. Paulson’s March 8, 2019, supplemental report. Ms. Bourgeois testified at the hearing in response to the opinions of both the QRC and Mr. Paulson. The compensation judge kept the hearing record open for one week for briefing.
Following the close of the record, the compensation judge issued his Findings and Order, denying the employer and insurer’s petition. The compensation judge admitted the March 8, 2019, supplemental report of Mr. Paulson, concluding that the employer and insurer had not suffered prejudice in the manner it was provided.[1] The compensation judge found that the employee did not withdraw from the labor market, did not retire, and that he conducted a diligent job search. He also found that the job offer was not consistent with the rehabilitation plan because of the significant wage difference, stating “the goal of the rehabilitation plan is not to return the employee to any employment possible, but to suitable gainful employment. Therefore, the job offer by the employer was not consistent with the rehabilitation plan because it would not return the employee as close as possible to his preinjury economic status, and as a result, would not return the employee to suitable gainful employment.” (Finding 22) (emphasis in original).
The employer and insurer appeal.
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(3). 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 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).
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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The employer and insurer argue there was not substantial evidence to support the compensation judge’s decision to deny their petition to discontinue TTD benefits under Minn. Stat. § 176.101. Additionally, the employer and insurer argue the compensation judge abused his discretion by admitting reports of the QRC and of the employee’s vocational expert given that these two experts did not testify. We are not persuaded by the employer and insurer’s arguments.
The employer and insurer assert TTD benefits ought to be discontinued under Minn. Stat. § 176.101, subd. 1(f), because the employee withdrew from the labor market. They point to the employee’s application for SSDI benefits after meeting with the employer regarding the potential job offer, as well as his application for only two jobs and his telling those potential employers about his difficulty swallowing and gagging.
Whether TTD benefits may be discontinued based on a withdrawal from the labor market is primarily a factual determination. See Schweder v. Covalence Specialty Materials Corp., 71 W.C.D. 293 (W.C.C.A. 2011). The evidence, as found by the compensation judge, shows that given the labor market, and the employee’s work restrictions, skills, and age, there were few jobs available. The employee applied for the only two jobs that were identified by the employer and insurer’s vocational expert. There is no evidence that he was not hired because of comments to these prospective employers regarding his gagging condition. Although he applied for SSDI benefits, this application does not necessarily indicate a withdrawal from the labor market. Indeed, SSDI benefits are payable to individuals who are not capable of “any substantial gainful employment” for a period of 12 months or longer. 20 C.F.R § 404.1505(a). There is nothing in the law that equates the inability to work for 12 months or longer to a withdrawal from the labor market. Substantial evidence supports the compensation judge’s findings and conclusion that the employee did not withdraw from the labor market.
The employer and insurer similarly argue that the employee retired based upon his application and receipt of SSDI benefits, and that his TTD benefits ought to be discontinued under Minn. Stat. § 176.101, subd. 8. This is a determination to be made by a compensation judge based upon substantial evidence. Hurd v. N. Indus. Insulation, 70 W.C.D. 365 (W.C.C.A. 2009). A statement by the employee that he had no intent to retire is a significant factor in making this determination. Id. at 376. The compensation judge accepted the employee’s credible testimony that he had no intention of retiring by applying for SSDI benefits. Substantial evidence supports the compensation judge’s findings and conclusion that the employee did not retire.
The employer and insurer argue that the employee failed to conduct a diligent job search and his TTD benefits ought to be discontinued under Minn. Stat. § 176.101, subd. 1(g). They argue the employee presented no job logs, applied for only two jobs, and testified that he “looked around” on the internet for jobs.
Whether to discontinue TTD benefits for lack of a diligent job search is a determination based on several factors and is decided based on substantial evidence. See Lohman v. Pillsbury Co., 40 W.C.D. 45, 50 (W.C.C.A. 1987). The employer and insurer’s expert identified only two jobs in the labor market, and the employee applied for both jobs. There is no evidence that the employee could have or should have applied for other job opportunities.
Moreover, the QRC recommended job placement services in November 2018 and February 2019, and in both circumstances, the employer and insurer refused to authorize such services. Further, there is no evidence the employee failed to cooperate with his QRC or the rehabilitation plan. Where the employee cooperated with his rehabilitation plan and where additional vocational services were not approved by the employer and insurer, the arguments raised regarding diligence of the job search may be less persuasive. See, e.g., Binning v. Donahue and Assocs., slip op. (W.C.C.A. Aug. 10, 1992). Substantial evidence supports the compensation judge’s findings and conclusion.
Finally, the employer and insurer argue the employee refused a job offer that was consistent with the rehabilitation plan and that his TTD benefits ought to be discontinued under Minn. Stat. § 176.101, subd. 1(i). The goal of a rehabilitation plan is to return the injured employee to “suitable gainful employment.” Minn. R. 5220.0100, subp. 34 (defining the term as that “which offers an opportunity to restore the injured employee as soon as possible and as nearly as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without disability”). Whether an employee refused a job within a rehabilitation plan is also a determination to be made based upon substantial evidence. See Haldeman v. Next Innovations, Ltd., WC06-189 (W.C.C.A. Oct. 12, 2006).
There are few, if any, factual disputes regarding the job offer. At the time of his injury, the employee had a wage of about $1,600.00 per week. The job offer was for a wage of $600.00 per week. The job was otherwise within the employee’s restrictions and was within his skill level. Moreover, the technician job was tailored to suit the employee and the employer seemed sincerely interested in employing him. The employee’s knowledge and skills were considered valuable and the employer was hopeful that those skills could be passed to other mechanics in the shop. The employer and insurer intended to pay TPD benefits based upon the wage loss until those benefits expired.
The compensation judge found that the job was not economically suitable and thus not consistent with the rehabilitation plan because it would not return the employee as close as possible to his pre-injury economic status. While the offered wage and TPD benefits may have sustained the employee at a similar economic status for a period of time, the employee would ultimately experience a significant loss of earnings.
The compensation judge’s finding that the $1,000.00 difference in wage rendered the offered job not economically suitable, particularly when combined with the labor market and the employee’s age, restrictions, current skills, and limited TPD eligibility, is supported by substantial evidence.
The employer and insurer argue that the compensation judge abused his discretion by admitting the reports of the QRC and the employee’s vocational expert. Neither the QRC nor the employee’s vocational expert testified at trial. Reports from those two individuals were offered and admitted into evidence. The employer and insurer argue that they had no opportunity to cross-examine these witnesses, and unlike medical expert reports, which by rule are admitted despite the lack of cross-examination,[2] vocational experts do not enjoy the same presumption. See Minn. R. 1420.2900, subp. 4 (all parties have a right to cross-examine witnesses). We are not persuaded by the employer and insurer’s arguments.
At the hearing, the only evidentiary objection made was to the QRC’s March 8, 2019, report. The record shows that counsel suggested he had objected to the March 8, 2019, report of Mr. Paulson at the outset of the hearing. On appeal, the employer and insurer argue both reports were inadmissible as hearsay.
The admission of evidence is within the sound discretion of the compensation judge. Minn. Stat. § 176.411, subd. 1; Minn. R. 1420.2900, subp. 6; Keiser v. Dick Lind Heating Co., slip op. (W.C.C.A. Nov. 22, 1996). At no point did counsel for the employer and insurer request an opportunity to cross-examine either or both experts. See Lucas v. Lucas Mgmt., slip op. (W.C.C.A. Apr. 24, 1995). Under these circumstances, any potential error was waived by failing to request an opportunity to depose the QRC or Mr. Paulson regarding their reports. Further, the employer and insurer’s vocational expert testified and responded to the opinions contained in the disputed reports at the hearing. The compensation judge did not abuse his discretion in admitting the disputed reports.
Regardless, in reaching his findings, the compensation judge relied on few, if any, of the opinions contained in either of the vocational reports. Those reports aside, there was other evidence presented regarding the employee’s wage at the time of his injury, his SSDI benefits, two job applications, and job search, as well as the wage of the new job, the circumstances of the job offer, and the labor market. Thus, even if the compensation judge erred in admitting either March 8, 2019, report into evidence, the employer and insurer were not prejudiced because other evidence in the record supports the decision.