JOB SEARCH; TEMPORARY TOTAL DISABILITY – WORK RESTRICTIONS. Where the compensation judge excused the employee’s lack of job search but made no determination as to whether and when she was under work restrictions, and no determination as to whether she reasonably expected to return to work with the date of injury employer, the award of temporary total disability benefits must be vacated and the matter remanded for factual findings.
Compensation Judge: Nicholas W. Chang
Attorneys: Michael L. Garbow, Garbow Law Office, Duluth, Minnesota, for the Respondent. Jason L. Schmickle, Aafedt. Forde, Gray, Monson & Hager, P.A., Minneapolis, Minnesota, for the Appellants.
Affirmed in part, vacated in part, and remanded for further findings.
SEAN M. QUINN, Judge
The employer and insurer appeal from the compensation judge’s findings that the employee suffered an ongoing compensable work injury and that she is entitled to temporary total disability (TTD) benefits. We affirm in part, vacate in part, and remand the matter to the compensation judge.
The employee, Risa Jenko, worked as a dump truck operator for the employer, Cleveland Cliffs, an iron mining facility on the Iron Range of Minnesota. The employee’s job was to drive a 240-ton dump truck to a digging area of the mine where her truck was loaded by other employees using large machines. She would then haul the load to another area of the plant where the load was dumped from her truck.
On January 31, 2023, several of the loads in the employee’s truck got stuck and a large machine was used to loosen and empty those loads on three or four occasions. Despite being safely belted in her seat, the employee was jostled inside the cab of her truck while the loads were loosened. She was also jostled while driving on the uneven dirt roads in the mine pit, especially in winter weather.
The employee told her supervisor at the end of her shift that she was sore. She then went home to sleep. When she woke later the same day, she was stiff and sore in her neck and left shoulder. The employee went to urgent care at Fairview Hibbing Hospital with complaints of pain in her left arm, shoulder, and neck. She had tenderness at the neck and shoulder, but full range of motion. She was diagnosed with muscular strains and was told that she could return to work on February 2, 2023.
The employee did not return to work and was seen in the emergency room at Fairview Hibbing Hospital on February 3, 2023, with complaints of left shoulder pain and numbness into her left arm. Tenderness about the shoulder joint and reduced range of motion was noted on examination and an x-ray revealed a partial separation of the left shoulder joint. She was instructed to follow up with orthopedics before returning to work, and was also told she could return to work on February 15, 2023.
On February 6, 2023, the employee was evaluated by Dr. Stefan Kaiser at Essential Health Occupational Medicine, who diagnosed a sprain of the left acromioclavicular ligament and administered an injection into the shoulder joint. The employee was given a sling and was prescribed pain medication. She was released to return to work with restrictions of light-duty work with no use of her left arm, crawling, climbing, or operating heavy equipment, and that she was to wear a sling for her arm. Dr. Kaiser noted that the restrictions were temporary until a follow up evaluation.
Rather than follow up with Dr. Kaiser, the employee met with her primary provider, Dr. Marianne Kunsch, on February 9, 2023, who noted the left shoulder separation on x-ray. The next day, the employee was seen by Dr. Patrick Hall, an orthopedic surgeon at Orthopedic Associates. The employee exhibited minimal tenderness over the AC joint, but was tender to palpation over the anterior and anterolateral aspect of the shoulder and acromion. Dr. Hall noted slightly limited of range of motion, but good strength throughout. He diagnosed the employee with left shoulder pain, recommended physical therapy to improve range of motion, and ordered an MRI scan to assess possible structural damage. He opined that the employee had been unable to work since January 31, 2023, and would remain off work until after the MRI scan.
On March 1, 2023, the employee underwent an MRI scan of her left shoulder which revealed mild to moderate supraspinatus tendinosis with no evidence of any tears of the rotator cuff. Dr. Hall called the employee to discuss the MRI results. He assessed her condition as non-operative and again recommended physical therapy or a subacromial injection. The employee reported being off work and using a sling. Dr. Hall did not assess work ability.
On March 21, 2023, the employer advised the employee that her application for Sickness and Accident benefits had been approved retroactively to February 1, 2023. Her estimated return-to-work date was April 7, 2023. The letter continued:
If you need to extend your time away from work, you will need to submit an Extension Form for completion by your treating physician’s office. A blank copy of this form is included with this letter for your convenience.
(Claim Petition.)
On April 5, 2023, the employee met Dr. Kunsch by video. The employee discussed her left shoulder pain and wanting to try acupuncture, for which Dr. Kunsch agreed to make a referral. This treatment began on May 25, 2023, and continued for a total of nine visits through January 2024.[1]
The employee began physical therapy for her left shoulder on April 18, 2023. The therapist noted the employee’s report of pain and observed reduced range of motion. The therapist wrote that the employee was “unable to sleep” and “unable to work.” (Employer Ex. 6.) Similar notations were made by the therapist through May 19, 2023, when therapy ceased.
On May 9, 2023, Dr. Michael Torchia, an orthopedic surgeon, examined the employee regarding her left shoulder pain. The employee denied neck pain or any radicular pain into her arms from her neck, and she exhibited full range of motion. As to the left shoulder, the employee had pain upon palpation and slightly limited range of motion. X-rays revealed no objective findings. Dr. Torchia also reviewed the prior MRI scan and found nothing remarkable. He assessed the employee’s pain as myofascial that was responding well to physical therapy, and suggested a future steroid injection. Dr. Torchia stated that the employee would be unable to return to work until a follow-up in two months.
The employee returned to Dr. Torchia on July 11, 2023, for her left shoulder pain. Dr. Torchia believed the employee’s pain was likely from a very inflamed subacromial bursa and recommended she continue with acupuncture. He completed a report of work ability stating that she cannot return to work, and that he would see her again in two months. The employee again saw Dr. Torchia on September 12, 2023. She reported some pain relief with the acupuncture she had received and declined cortisone injections. He noted that the employee as not a surgical candidate and that he had no additional therapeutic care to offer.
On November 3, 2023, Dr. Kunsch examined the employee for complaints of neck and shoulder pain. The employee reported that physical therapy helped somewhat, that acupuncture provided some relief, but that she continued to have pain and tingling into her left arm. Dr. Kunsch recommended an MRI of the neck given the possibility of radiculopathy and advised against working pending results of the scan. The November 20, 2023, MRI scan showed moderate facet hypertrophy at C7-T1 and minimal disc bulging mostly at C4-5.
The employee returned to Dr. Kunsch on January 9, 2024. She reported that despite physical therapy, acupuncture, various prescriptions and over-the-counter medications, and lifestyle modifications, her left shoulder pain was not improving. Dr. Kunsch suggested facet injections given the potential of cervical radiculopathy, and recommended the employee remain off work until a post-injection follow up. The employee did not undergo the recommended injections. At hearing, the employee testified that from the January 2023 injury to the January 2024 visit with Dr. Kunsch, her pain never improved and only worsened as time progressed.
Despite worsening pain symptoms, the employee did not seek medical treatment for more than a year. On April 8, 2025, the employee saw Dr. Torchia with complaints of persistent pain and radicular symptoms into the fingers of her left hand. Dr. Torchia noted the involved fingers were consistent with the C7-T1 dermatomal pattern. At the request of Dr. Torchia, the employee saw Dr. Kaiser on April 15, 2025. She requested that Dr. Kaiser complete paperwork for an upcoming hearing. He declined to offer anything more than what his most recent February 2023 note indicated.
On April 22, 2025, the employee returned to Dr. Kunsch for treatment of her left shoulder and neck pain. The employee reported persistent pain in her neck and shoulder since the work injury. She also stated she had not received care in the past year due to financial constraints. Dr. Kunsch noted tenderness to palpation of the left cervical muscles, with similar tenderness about the left shoulder. Dr. Kunsch noted the employee’s examination was difficult as she was “guarding from pain.” (Employee Ex. 2.) Dr. Kunsch recommended MRI scans of the neck and shoulder to rule out any tearing.
The employee had been examined by Dr. Loren Vorlicky at the request of the employer and insurer. In his May 7, 2024, report, Dr. Vorlicky concluded that the employee had sustained a mild strain or contusion of her left shoulder and a possible strain of her neck with mild degenerative disc disease, both from the work injury. He opined that these conditions were temporary and would have resolved within six to eight weeks. He also opined that the employee needed no work restrictions regardless of cause as she exhibited minimal objective findings to explain her subjective complaints of pain.
On April 1, 2025, Dr. Kunsch completed a questionnaire from the employee’s attorney. Dr. Kunsch’s answers indicated that it was her opinion that the employee’s jostling in the dump truck on January 31, 2023, substantially aggravated her disc bulge at C4-5 and foraminal narrowing at C7-T1. Dr. Kunsch also indicated that the jostling on January 31, 2023, “aggravated, accelerated or combined with a pre-existing condition” caused the employee’s neck and shoulder pain symptoms. In a narrative format, Dr. Kunsch opined that driving a dump truck could exacerbate or further injure the employee due to her neck condition as seen on MRI. She further explained, “I have not seen [the employee] since 1/9/2024 and she has not had follow up imaging to my knowledge to assess for interval progression or improvement of her spinal findings since then. Therefore, I am unable to say whether or not she would be safe to resume operating a dump truck.” (Employee Ex. 1.)
While she did not return to work after the January 31, 2023, injury, the employee remained employed by the employer. According to the employee, her Sickness and Accident benefits ceased approximately one year after the injury. After having been notified by the employer that her medical benefits would end, she applied and was approved for medical assistance. Prior to the injury, she had begun an online program to obtain a master’s degree in social work. She completed the program and earned a degree in late 2024. The employee acknowledged that she had not searched for any type of work following the injury.
The employee filed a claim petition seeking medical benefits for her neck and left shoulder conditions and TTD benefits from February 1, 2023, and ongoing. The employer and insurer denied primary liability, asserting that any work injury was temporary and had resolved. The employer and insurer also disputed entitlement to TTD benefits as the employee had not searched for work.
The matter came on for a hearing before a compensation judge on April 25, 2025. In his June 17, 2025, findings and order, the compensation judge found the employee had suffered compensable work injuries to her neck and left shoulder, that the injuries had not yet resolved, that she was entitled to medical benefits, and that the employee was entitled to TTD benefits as claimed. 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). When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022). 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); see also Smith v. Carver Cnty., 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019).
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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79 (Minn. 2003).
On appeal, the employer and insurer argue that substantial evidence does not support the compensation judge’s findings that the employee suffered a work injury and that the work injury is a substantial contributing factor to her ongoing neck and shoulder conditions. We disagree.
The determination of whether an employee suffered a work injury is a factual question for the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994). The nature and extent of an injury is also a factual determination to be made by the compensation judge. Id. This court will affirm such factual determinations if supported by substantial evidence in the record. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
The compensation judge found that the employee suffered a work-related injury to her left shoulder and neck on January 31, 2023, citing the credible testimony of the employee and the lack of symptoms, treatment, and work restrictions prior to the date of injury. The compensation judge also found that the work injury is a substantial contributing factor to the employee’s current condition. The compensation judge noted the employee’s credible and consistent reports of symptoms. He found the opinions of Dr. Kunsch more persuasive than those of Dr. Vorlicky, who opined that the work injury should have resolved within six to eight weeks of the injury.
Substantial evidence in the record supports the compensation judge’s factual determinations with regard to whether the employee sustained a work-related injury, and the nature and extent of that injury. The record shows no left shoulder or neck symptoms nor treatment prior to the date of injury, while post-injury imaging indicated a partial separation of the left shoulder and disc degeneration of the neck with consistent radicular symptoms. Medical records reflect the employee’s ongoing complaints of symptoms after the injury. While Dr. Kunsch did not write out a full narrative opinion, her opinions were well-founded, and the compensation judge was within his discretion to adopt those opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); see also Ruether v. State of Minn., 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990). This evidence supports the compensation judge’s findings that the employee suffered a work injury to her left shoulder and neck that has not resolved. Accordingly, we affirm those findings.
The employer and insurer also appeal the compensation judge’s award of TTD benefits. TTD benefits are payable when an employee, due to a work injury, is totally disabled from working. Minn. Stat. § 176.101, subd. 1. To prove entitlement, an employee must typically show that a medical professional has restricted the employee from any type of work due to the work injury. [2]
When an employee is able to work, but is subject to medical restrictions, and combined with other factors such as age, education, training, skills, work experience, and the labor market available in the employee’s community, benefits are still payable where the employee is unable to secure employment. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988); Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967) (the concept of TTD is primarily dependent upon the employee’s ability to find and hold a job). An employee under restrictions due to a work injury must conduct a job search within those medical restrictions. Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954.
The compensation judge awarded TTD benefits, stating that the employee’s “work injury continues to be a substantial contributing factor in the employee’s current condition, disability, and need for treatment.” (Mem. at 9.) The compensation judge, however, made no finding with regard to whether or when the employee was restricted from all work or had been released to work with restrictions. The record shows that the employee was released to return to work within days of the injury without limitations or restrictions. She was then released with temporary restrictions pending a follow-up visit that did not occur. Later records indicated no work while awaiting medical procedures or results, and others stated “no work,” but without clarifying whether she should not work in any capacity or was only restricted from her job as a truck driver. Based upon the record before this court, it is not clear that the employee meets threshold requirements for entitlement to TTD benefits.
While employees are generally required to search for work, there is an exception when the employee has a reasonable expectation of returning to work with the date-of-injury employer. Kleszyk v. Minneapolis Star and Tribune, 45 W.C.D. 198 (W.C.C.A. 1991). In this case, the compensation judge found that the employee’s lack of job search was excused, and stated, “When there is unrefuted evidence of a continuing employment relationship, the employee’s failure to conduct a job search is excused.” (Mem. at 10 (citing Carreon v. Armour Swift Eckrich, Inc., slip op. (W.C.C.A. Mar. 23, 2000).) This is a misstatement of the law and an application of an incorrect legal standard.
A review of caselaw since Kleszyk establishes basic principles in considering whether an employee has a reasonable expectation of returning to work for the date-of-injury employer, thereby excusing the job search requirement. Whether an employee has a reasonable expectation of returning to work with the employer is a fact question for the compensation judge based on circumstances as a whole. Varela Leal v. Knife River Corp., No. WC16-5959 (W.C.C.A. Mar. 3, 2017) (citing Cloud v. Leech Lake Hous. Auth., 63 W.C.D. 226 (W.C.C.A. 2002), summarily aff’d (Minn. Mar. 26, 2003)), summarily aff’d (Minn. Apr. 10, 2018), and Gray v. Sears Roebuck & Co., 60 W.C.D. 273 (W.C.C.A. 2000)). While not an exhaustive list or factor test, a compensation judge may consider a number of factors, including the duration the employee was not working,[3] the duration of the employment relationship,[4] communications made by the employee while off work, [5] communications made by the employer with the employee or QRC,[6] the goal of the rehabilitation plan,[7] whether rehabilitation services were offered,[8] and the testimony of the employee regarding expectations of returning to work for the employer.[9]
The compensation judge erred by focusing on whether there was a continued employment relationship rather than determining whether the employee reasonably expected to return to work with the employer, thus excusing her lack of job search. The award of TTD benefits is vacated and the matter remanded for findings consistent with this opinion. On remand, the compensation judge must determine the extent of the employee’s ability to work after the date of her injury. For any time period during which the employee was able to work within medical restrictions, the compensation judge must determine whether and when the employee had a reasonable expectation of returning to work for the employer and was therefore entitled to TTD benefits.
[1] Despite reporting to her doctors that the acupuncture was providing relief, the employee testified at hearing that the acupuncture would only help for a day or two and that she continued to have a lot of pain in her neck and shoulder, with pain extending into her left arm to her fingers.
[2] A compensation judge may rely upon an employee’s testimony regarding self-recognized limitations to support a conclusion about work ability. See Brening v. Roto-Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (1975); Grgurich v. Sears, Roebuck & Co., 301 Minn. 291, 223 N.W.2d 120, 27 W.C.D. 563 (1974) (an employee’s own testimony may support a finding of work restrictions). The record contains no testimony from the employee regarding what she was physically capable of doing, including how her neck and shoulder injuries affected her ability to perform work activities, recreational activities, household activities, or master’s degree schooling.
[3] Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996) (job search was not required during a limited timeframe of less than two months); Lohrke v. First Student, No. WC07-224 (W.C.C.A. Jan. 31, 2008) (it was not reasonable for the employee to expect to return to work for the employer after a period of eleven months).
[4] Lowe v. Northwest Airlines Corp., No. WC10-5069 (W.C.C.A. Aug. 26, 2010) (the employee had a reasonable expectation of returning to work for the employer after working for the employer for 22 years).
[5] Carreon v. Armour Swift Eckrich, Inc., slip op. (W.C.C.A. Mar. 23, 2000) (it was reasonable for the employee to expect to return to work with the employer where she regularly approached the employer about returning to work and was told she would be called when work was available).
[6] Fennig v. Transcom Inc., slip op. (W.C.C.A. Mar. 19, 1999) (when the employer sent a letter to the employee advising they hoped she would return to work, she was not obligated to look for work).
[7] See, e.g., Varela Leal v. Knife River Corp., No. WC16-5959 (W.C.C.A. Mar. 3, 2017), summarily aff’d (Minn. Mar. 26, 2003) (job search was not necessary when, among other circumstances, the vocational rehabilitation plan was to return the employee to work with the employer).
[8] Lundberg v. Bemidji Ambulance Serv., slip op. (W.C.C.A. May 22, 1998) (job search was not necessary when, among other circumstances, the employee was not provided rehabilitation assistance by the employer).
[9] Carter v. Alliant Tech., No. WC05-135 (W.C.C.A. Aug. 3, 2005) (where the employee testified that the employer told him he would be called back to work, job search was not required).