SHANAN S. CURTIS, Employee/Appellant, v. INDEP. SCH. DIST. NO. 721 NEW PRAGUE AREA SCH. and SFM MUT. INS. CO., Employer-Insurer/Respondents, and MANKATO SURGERY CTR., MINN. DEP’T OF LAB. & INDUS. VOCATIONAL REHAB. UNIT, and MEDICA HEALTH PLANS, Intervenors.

The employee appeals the compensation judge’s findings that the employee’s work injuries resolved and that she had unreasonably refused an offer of employment barring her right to claim future temporary total disability (TTD) benefits.  We affirm the compensation judge’s finding that the employee’s work injuries resolved and the denial of her claim for TTD benefits.  We modify the compensation judge’s finding that the employee’s refusal of a suitable job barred entitlement to TTD benefits pursuant to Minn. Stat. § 176.101, subd. 1(i).

Shanan Curtis, the employee, was employed as a teaching paraprofessional by the New Prague Area Schools, the employer, beginning in 2013.  As a paraprofessional, the employee worked primarily in the preschool program.  On September 6, 2017, while performing her job duties, the employee injured her right elbow when a loose railing fell on her.  She sought treatment at the New Prague Hospital where she complained of pain and lost range of motion of the elbow.  She saw orthopedic surgeon Adam Bakker, M.D., who ordered an MRI of the right elbow which showed a contusion of the proximal ulna and a flexor pronator tear.  Dr. Bakker recommended a right ulnar nerve decompression and subcutaneous anterior transposition which was performed on January 11, 2018.  The employer and its insurer admitted liability for the work injury and paid workers’ compensation benefits.

Following the surgery, the employee returned to work at reduced wages and was released to return to work with no restrictions on March 25, 2018.  On April 27, 2018, the employee reported to Dr. Bakker that while working, she was punched by a student in the right shoulder causing pain.  Dr. Bakker diagnosed her with subacromial bursitis and assigned work restrictions.  By August 6, 2018, the employee demonstrated normal strength and normal range of motion for both her elbow and shoulder.  Dr. Bakker recommended completion of a work hardening program, assigned restrictions which he felt were likely permanent, and suggested that maximum medical improvement (MMI) would follow.

The next day, on August 7, 2018, the employee slipped on water at work, caught herself with her right arm, and aggravated her right shoulder pain.  She returned to Dr. Bakker who examined her and ordered an MRI scan.  Her shoulder examination showed a reduced range of motion, and the MRI findings did not show significant rotator cuff tear.  Dr. Bakker diagnosed her with right rotator cuff strain and right shoulder subacromial bursitis.  He released her to return to work with restrictions for the right upper extremity of five pounds lifting and no overhead lifting.

With these restrictions, the employer offered a job to the employee on September 9, 2018.  The job required the employee to monitor the parking lot, halls, and locker room at the high school.  Having primarily performed job duties with younger children, the employee had no previous experience at the high school.  The employee expressed concerns about working outside in the parking lot in the cold months, falling, and physical interaction with high school students.  Beginning on September 25, 2018, the employee also began work hardening.  The employee did not believe she could perform her pre-injury job working with preschool students.  She had high levels of anxiety and mild to moderate depression.  Testing revealed that the employee’s perceived disability score of 82 placed her as either bed bound or significantly exaggerating her symptoms.

The employee accepted the job offer and began work on October 8, 2018.  Dr. Bakker confirmed that the employee could perform the high school monitor job.  The employee worked four days and told her QRC that she would no longer work at the high school for personal safety concerns.  She claimed that she developed emotional distress and believed she was in a hostile work environment.  The employee met with the QRC, representatives from the employer, and the employee’s union representative to discuss work options.  She was told that the job was to observe and report, but the employee insisted she would not work in the position.  The high school principal testified that fights at the high school were rare and that the environment was not violent.  The employee sought care for emotional stress which she claimed was due to the high school job change, but she declined recommended treatment of counseling and medication.

There were several medical experts who offered opinions on the nature and extent of the employee’s injuries.  The employer and insurer sought an expert medical opinion with Mark Wilczynski, M.D., regarding the employee’s September 6, 2017, elbow injury.  On June 25, 2018, Dr. Wilczynski examined the employee, took a medical history, reviewed multiple medical records, and drafted a narrative report.  He diagnosed the employee’s condition as right medial elbow contusion and right ulnar instability.  He concluded that she had reached MMI and that she required no further treatment or restrictions.  He examined the employee again a few months after the August 2018 work injury and concluded again that the employee had reached MMI, required no further treatment, and no restrictions.  He opined that the employee’s subjective complaints of pain were unsupported by objective clinical findings.  The MMI report for both claimed injuries was served on December 11, 2018.

The employer and insurer retained Ross Paskoff, M.D., to address the employee’s claimed right shoulder injury and treatment following the work injury of August 7, 2018.  Dr. Paskoff examined the employee, took a medical history, reviewed multiple medical records, and drafted a narrative report.  On examination, he noticed a reduction in the employee’s right shoulder range of motion.  He opined that the employee suffered a rotator cuff strain because of the August 7, 2018, injury, but that it was temporary in nature having fully resolved by November 27, 2018, without the need for restrictions, medical treatment, or ratable permanent partial disability (PPD).

The employee saw Paul Matson, M.D., in the spring of 2019.  He recommended another MRI which showed moderate supraspinatus tendinosis and a suspected SLAP lesion.  In August 2019, Dr. Matson performed right shoulder surgery in the nature of a subacromial decompression, rotator cuff repair, and biceps tenodesis.  Afterward, the employee underwent physical therapy with no significant improvement in her symptoms.  In June 2020, Dr. Matson examined the employee’s shoulders which showed full range of motion and full strength.  He rated PPD as one percent for biceps tenodesis.  In November 2020, Dr. Matson noted that the employee’s examination was essentially normal, but she continued to complain of pain.

At the request of her attorney, the employee saw an occupational medicine physician, Emily Bannister, M.D., for an expert medical opinion on the nature of the employee’s injuries.  Dr. Bannister examined the employee, took a medical history, reviewed multiple medical records, and drafted a narrative report.  She opined that the employee had a rotator cuff tear aggravated by falling onto an outstretched arm on August 7, 2018.^[1]  She also opined that the employee needed ongoing restrictions and rated PPD.

Treating physicians Dr. Matson and Dr. Bakker also wrote narrative reports, concluding that the employee suffered permanent injuries to the right elbow and shoulder on September 6, 2017, and/or August 7, 2018, with ratable PPD and assigned permanent restrictions.  The employee also underwent a functional capacities evaluation (FCE) in December 2018, which indicated that she could not return to her previous job and that she would require restrictions.

The employee filed a claim petition alleging wage loss, medical, and PPD benefits.  Having disputed the nature and extent of the work injuries, the employer and insurer had last paid wage loss benefits on May 28, 2018.

The matter was heard before a compensation judge on January 5, 2022, for a determination of the nature and extent of the employee’s work injuries, whether the employee was entitled to PPD and medical benefits, whether the employer’s job offer was consistent with a plan of rehabilitation, and whether the employee unreasonably refused the job offer.  If it was found that the job offer was reasonably refused, the employee claimed entitlement to intermittent wage loss benefits.

After hearing the testimony of the employee and three witnesses from the employer, the compensation judge found that the employee’s testimony was not entirely credible.  She found that the employee could work without restrictions as of June 25, 2018, and that the evidence failed to show that the employee suffered a right shoulder injury as a result of the September 6, 2017, incident.  She also found that the nature of the August 7, 2018, injury was a rotator cuff strain which fully resolved by November 27, 2018.  She further found that the employee had unreasonably refused an offer of employment which barred her entitlement to temporary total disability (TTD) benefits after October 12, 2018.  She ordered the employer and insurer to pay temporary partial disability benefits from May 29 to June 25, 2018, and denied the remaining claims.  The employee appeals.

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).

On appeal, the employee argues that the compensation judge erred in determining that the 2017 elbow work injury resolved and that the employee did not require ongoing restrictions.  She argues that the judge also erred in determining that the 2018 shoulder injury was temporary and had resolved and should have instead analyzed the injury under the permanent aggravation standard.  The employee asserts that the judge should have, but did not specifically address, whether the employee was entitled to a three percent permanency rating for the right elbow.  Finally, the employee appeals the judge’s finding that she rejected a suitable job offer and argues that she cannot be barred from receiving TTD benefits under Minn. Stat. § 176.101, subd. 1(i), because she was not receiving TTD benefits at the time of the alleged refusal.

The compensation judge found that the employee’s right elbow and right shoulder conditions had resolved.  She relied on medical records and medical opinions that the employee’s findings on examination were essentially normal.  She noted that the employee’s treating physician, Dr. Bakker, found on August 6, 2018, that the right elbow examination was within normal limits, reasonably inferring that the employee’s elbow injury had resolved.  She found that Dr. Matson noted on examination that the employee had full range of motion and full strength of her right shoulder.  Moreover, she adopted the opinions Dr. Wilczynski and Dr. Paskoff, who opined that the employee’s right elbow and shoulder had resolved with no ratable permanency, no restrictions, and no need for future medical treatment.

It is well established that a compensation judge’s choice among conflicting expert opinions must be upheld unless the opinion lacked adequate factual foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  As the trier of fact, the compensation judge adopted the opinions of Drs. Wilczynski and Paskoff and there was no objection or argument by the employee that their opinions lacked adequate foundation.  Instead, the employee argues that the judge erred by not specifically considering the recommendations for restrictions, surgery, and PPD ratings set forth by Drs. Bakker and Matson in her findings.  We disagree.

The compensation judge made detailed and specific findings that Dr. Bakker and Dr. Matson opined that the employee had a permanent injury and restrictions.  The compensation judge adopted the opinions of Dr. Wilczynski and Dr. Paskoff whom she found more persuasive.  Both doctors determined that the employee did not have a ratable permanency attributable to the injuries because they were temporary in nature and had resolved.  Because substantial evidence supports the compensation judge’s reliance on the medical experts who concluded that the right elbow and shoulder conditions resolved, we affirm.

The employee also argues that the judge erred in finding that the employee rejected a suitable job offer from her employer.  The employee contends that she did not refuse the offer, but instead tried the monitor job at the high school and considered it unsuitable for her.  We are not persuaded.  In finding that the employee had rejected a suitable job, the compensation judge reasoned that the high school monitor job was undisputedly within the employee’s physical restrictions.  The judge found that the employee expressed several concerns regarding the job, including being outside in cold weather where she may slip and fall and possible physical interaction with high school students.  However, the judge reasonably concluded that none of these concerns were enumerated in physical restrictions given by her doctors.  Dr. Bakker made some minor suggestions but otherwise approved the high school monitor job.  After meeting with the QRC, the high school principal, and the human resources director to address the employee’s concerns, the employee rejected the position.  Substantial evidence supports the compensation judge’s finding that the employee rejected a suitable job offer, and we affirm.

Finally, the employee argues that the judge erred in severing the employee’s entitlement to TTD benefits when she unreasonably refused an offer of employment consistent with the rehabilitation plan.  The compensation judge found that the employee’s refusal barred her entitlement to TTD benefits after October 12, 2018.  Pursuant to Minn. Stat. § 176.101, subd. 1(i), TTD shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation and once TTD ceases for this reason, it may not be recommenced.

It has long been held that Minn. Stat. § 176.101, subd. 1(i), is a cessation provision and bars entitlement to TTD only if the employee is receiving TTD benefits at the time the employee refuses the job offer.  See Falls v. Coca Cola Enters., Inc., 726 N.W.2d 96, 67 W.C.D. 22 (Minn. 2007) (statutory cessation condition does not apply to work offers made before the commencement of TTD benefits); Spoelstra v. Wal-Mart Stores, 74 W.C.D. 65 (W.C.C.A. 2014) (cessation provision only applies when an employee is being paid TTD benefits at the time the cessation event occurs); Dell v. Parker Hannifin, slip op. (W.C.C.A. July 12, 2004) (cessation provision not applicable because the employee was not receiving TTD benefits at the time of the job offer).  Here, the employee was not receiving TTD benefits when the offer was rejected and therefore this provision alone does not bar the employee’s entitlement to TTD benefits.  We therefore modify Finding 60 to read: “The employee unreasonably refused a suitable job offer which was consistent with the rehabilitation plan.”

 While Minn. Stat. § 176.101, subd. 1(i), does not apply to bar the employee from ever being eligible for TTD benefits in this case, an unreasonable refusal of a suitable job offer by the employer may be a basis for denying a claim for TTD benefits.  See Contreras v. Jennie-O Turkey Store, Inc., No. WC15-5822 (W.C.C.A. Nov. 24, 2015) (citing Shogren v. Bethesda Lutheran Med. Ctr., 359 N.W.2d 595, 37 W.C.D. 302 (Minn. 1984) and Losing v. Willmar Poultry Co., 43 W.C.D. 617 (W.C.C.A. 1990)).  In addition, other findings support the judge’s denial of TTD benefits.  The employee could work without restrictions due to the September 6, 2017, work injury as of June 25, 2018.  (Finding 57.)  The employee could work without restrictions due to the August 7, 2018, injury by November 27, 2018.  (Finding 59.)  An employee who has been released to return to work without restrictions is not entitled to TTD benefits.  Kautz v. Setterlin  Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  That the employee also rejected a suitable job offer adds weight to the judge’s order denying benefits.  We affirm the compensation judge’s denial of TTD benefits.