JOHN HEDNER, Employee/Appellant, v. PER MAR SEC. and LIBERTY MUT. INS. CO., Employer-Insurer/Respondents, and HUMANA, Intervenor.

A compensation judge found that the employee unreasonably refused a suitable job offer and thus was no longer entitled to temporary total disability (TTD) benefits.  The employee appeals.  We affirm.

The employee was born on April 29, 1946.  He has worked in a variety of different jobs, including shoe sales, foundry work, dairy farming, machine operation, and real estate sales.  In 2016, he began working for the employer as a security guard at a Menards store in Alexandria.  In this job, the employee worked outdoors approximately 80 percent of the time, where he would check trucks in and out of the lumber yard, lift lumber, walk the perimeter of the yard and open gates.  Some of the job’s duties were beyond the employee’s physical abilities and for those tasks, the employee was helped by coworkers.  The employee testified that his job was full-time, and that he worked as many as 60 hours per week.  However, the wage records documented an average weekly wage of under $290.00 per week, suggesting part-time work.

In the evening of September 8, 2018, the employee was patrolling the outside yard.  The area was poorly lit and the employee tripped over a railroad tie, falling with his left arm extended.  The fall resulted in a severe dislocation of his left shoulder.  The employee drove to the hospital, where the shoulder dislocation was reduced with a closed manipulation under conscious sedation.^[1]  Follow-up care for the shoulder was initially conservative as no nerve injury was suspected.  Physical therapy resulted in minimal improvement, and the employee continued to have severe limitation of range of motion and ongoing pain into the shoulder.  He also had complaints of numbness in the left arm and hand.

Because of the numbness complaints, an electromyogram (EMG) was performed on November 7, 2018.  The exam showed evidence of a brachial plexus injury.  Although some improvement was noted, the interpreting doctor suspected the employee would never fully recover from the shoulder injury.  On the same day, the employee underwent an MRI scan of his left shoulder, which showed a massive full-thickness tear of the rotator cuff, a partial thickness tear of the subscapular tendon, dislocation of the long head of the biceps tendon, tearing of the labrum and effusion in the glenohumeral joint.

On January 17, 2019, Dr. Eric Nelson examined the employee and recommended left shoulder surgical repair.  On February 4, 2019, the employee had an initial meeting with his assigned qualified rehabilitation consultant (QRC), Karol Scherer.  She subsequently attended most of the employee’s medical visits as part of ongoing medical management.  She shared a description of the duties of the employee’s security guard job with Dr. Nelson.

On March 4, 2019, Dr. Nelson performed a left shoulder arthroscopic labral debridement, bicep tenotomy, subacromial decompression and rotator cuff repair.  Dr. Nelson recommended that the employee attend several sessions of physical therapy.  The employee experienced minimal improvement in symptoms and function following physical therapy.

On September 19, 2019, Dr. Nelson opined that the employee would likely require six months to reach maximum medical improvement (MMI) and would remain restricted from all work. ^[2]  By October 16, 2019, Dr. Nelson had noted some improvement, although the employee continued to have reduced range of motion of the shoulder joint.  Dr. Nelson reiterated that the employee would not reach MMI until a year post-surgery.  The employee reported continuing numbness in his left hand, which Dr. Nelson attributed to the brachial plexus injury.  A month later, when the employee had completed physical therapy without improvement, Dr. Nelson ordered an MRI arthrogram.  Dr. Nelson suggested a functional capacities evaluation (FCE) might be considered to establish permanent work restrictions.  He continued to keep the employee off work.  On December 30, 2019, the MRI arthrogram was performed and showed full thickness tearing of the rotator cuff, mild AC joint arthrosis and a retracted biceps tendon.

On January 28, 2020, the employee saw Dr. Nelson for follow-up after the MRI arthrogram.  The employee complained of ongoing left shoulder pain and limitation of motion as well as ongoing left hand numbness.  Dr. Nelson felt the numbness would likely take another full year to resolve.^[3]  He did not feel additional surgery would help with the employee’s recurrent rotator cuff tear.  He opined the employee was at MMI and would require permanent work restrictions against overhead lifting with the left arm.^[4]

On February 15, 2020, the employer made the employee a written job offer to resume working as a security guard at the Alexandria Menards store.  Eleven days later, the employee refused the job offer, stating that he could no longer tolerate working in cold weather and that the workplace had “poor working conditions.”  The QRC testified that she explained to the employee that refusal of the job could have negative consequences.^[5]  The employer and insurer discontinued paying TTD benefits as of March 4, 2020, due to the employee’s refusal to accept the job offer.

The employee sought a second surgical opinion regarding his shoulder from Dr. Jason Glynn.  On January 18, 2021, Dr. Glynn diagnosed left shoulder pain with pseudoparalysis due to the recurrent rotator cuff tear.  Dr. Glynn suggested a total shoulder replacement.

On January 21, 2021, after examining the employee at the employer and insurer’s request, Dr. Ross Paskoff issued a report.  He diagnosed a recurrent full thickness tear of the left rotator cuff and a brachial plexopathy of the left shoulder.  He opined that both conditions resulted from the work injury.  Dr. Paskoff believed that the employee should observe work restrictions against lifting more than 5 pounds from floor to chest, against lifting above chest level due to the shoulder injury, and against repetitive lifting or manipulation with his left hand due to the brachial plexus injury.

The employee filed a claim petition seeking various benefits, including TTD from and after the date of their discontinuance.  The sole question at the hearing was whether the employee had unreasonably refused a suitable job offer so as to lose entitlement to TTD.

The employee testified that even before his work injury, he struggled with opening and closing gates at the Menards store, but that other Menards employees would accommodate him by opening and closing the gates for him.  By his testimony, the employee indicated that in refusing the job because it required working outside in the cold and had “poor working conditions,” he meant that his shoulder, elbow and brachial plexus symptoms made him physically incapable of doing the offered job.

The compensation judge issued his Findings and Order on July 29, 2021.  He found that the job was suitable and within the work restrictions issued by the treating surgeon, and that the employee’s refusal of the job offer was unreasonable.  The employee’s claim for TTD benefits was therefore denied.  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).

Minn. Stat. § 176.101, subd. 1(i), provides that TTD benefits shall cease if the employee refuses a job offer that is consistent with a plan of rehabilitation, or if no plan exists, refuses an offer of gainful employment within the employee’s physical restrictions.  It further provides that should an employee's TTD benefits cease under this subdivision, they cannot be recommenced.

The employee argues that the compensation judge erred as a matter of law and that substantial evidence does not support a finding that he unreasonably refused a suitable job offer.  The employee also argues that the compensation judge’s factual findings were not supported by the record.  He argues that the judge erred in failing to fully list and consider the duties of the security guard job, in finding that the employee was physically capable of doing the security guard job, in failing to adequately consider how the employee’s medical condition continued to worsen and caused a recurrent rotator cuff tear, and in failing to consider Dr. Nelson’s work restrictions as provisional where he also suggested an FCE to more fully determine the employee’s physical limitations.  We are not persuaded.

Citing Brening v. Roto Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (1975), the employee argues that whether a refusal of a job offer is reasonable is to be decided primarily based on the employee’s own knowledge of whether he can meet the job’s physical demands.  Thus, the employee contends, the compensation judge made an error of law in failing to decide this case in his favor where he testified that he did not feel he could do the job.  The employee’s reliance on Brening is misplaced.  While it is true that in Brening, the compensation judge accepted the employee’s testimony over the opinions of two doctors who opined that he was capable of doing the job, neither Brening nor any of the subsequent cases from this court on this issue stand for the proposition that an employee's testimony about whether he can or cannot do a job is the conclusive factor.  These cases stand only for the proposition that this factor may form the basis for a judge’s findings on job refusal, not that it must do so.  Brening, 306 Minn. at 563, 237 N.W.2d at 385, 28 W.C.D. at 226; see also Morgan v. Minn. Wild Hockey Club, 73 W.C.D. 197 (W.C.C.A. 2013); Hallila v. Lund Int’l Holding, Inc., slip op. (W.C.C.A. Nov. 25, 2002).

In this case, the employee testified as to the reasons that he did not think he was capable of doing a security guard job.  The treating doctor, on the other hand, opined that the employee could do the job.  The compensation judge accepted the opinion of the treating doctor over that of the employee.  In Brening, the supreme court simply affirmed the compensation judge’s weighing of the evidence as between the employee’s own assessment and that of medical experts.  In the present case, we similarly must affirm the compensation judge’s weighing of conflicting evidence.  The compensation judge did not commit an error of law in failing to accept the employee’s opinion as determinative of this issue.

The employee asserts that the compensation judge’s decision is based upon facts that are contrary to and unsupported by the evidence.  The employer and insurer disagree, noting that the written job offer to the employee was consistent with the rehabilitation plan and within the employee's physical restrictions as set by Dr. Nelson.  The compensation judge accepted the employer and insurer’s position following the hearing.  We conclude that substantial evidence supports the compensation judge’s findings.

The job offer contemplated a return to the same job that the employee had been performing at the time he was injured, and therefore was consistent with the rehabilitation plan.  It was within the employee’s restrictions as set out by Dr. Nelson at that time.  The only restriction then in effect was of no overhead lifting with the employee’s left arm.  Despite the employee’s testimony, nothing in the record indicated that the employee would be unable to perform the specific duties of the position.  The employee testified that he had received accommodations for heavy lifting and overhead work in this job prior to the September 8, 2018, work injury.

When he declined the job, the employee stated only that he did not want to work in the outdoors and that he felt that the employer had poor work conditions.  Neither of these concerns were related to restrictions arising from the work injury.  While the employee later complained of other limitations, these were not reflected in Dr. Nelson’s restrictions or the employee’s stated reasons for refusing the job offer.  There is no medical evidence that the employee would have been unable to do the job at the time that it was offered.

We acknowledge that Dr. Paskoff assigned further restrictions about a year after Dr. Nelson assigned the work restrictions that were in effect at the time of the job offer, and those newer restrictions might have precluded the employee from performing his job at the Menards store.  The compensation judge, however, was not required to deem that to be conclusive evidence that the employee was unable to do the job at the time that it was offered.  These arguments were made to the compensation judge who resolved them in favor of the employer and insurer.

The evidence also indicates that the security guard job offered to the employee required working outside and the using a computer notebook.  In cold weather, the security guard would need to take his gloves off to operate the notebook.  However, no physician restricted the employee from that kind of activity.  While Dr. Nelson had suggested an FCE might be useful, he nevertheless imposed work restrictions, reviewed the job description of the employee, and opined that he was capable of doing the job.  And at no point did Dr. Nelson state that the employee could not work in cold weather.

The evidence in this case could have supported more than one conclusion.  It is not the role of this court to speculate over other findings the compensation judge could have reached, but to determine whether substantial evidence supports the findings the compensation judge actually made.  We conclude that substantial evidence supports the compensation judge’s findings and conclusions.

The evidence supports that the job offer was within the restrictions provided by the employee’s physician, and consistent with the rehabilitation plan.  There was also evidence suggesting that the employer, as it had prior to the work injury, was willing to further accommodate the employee if necessary.  The employee did not try the job, but instead refused it out of hand and sought alternative employment.  Because substantial evidence supports the compensation judge’s finding that the employee unreasonably refused a suitable job offer consistent with his rehabilitation plan and consistent with his work restrictions, we affirm.^[6]