RICHARD DZIUK, Employee,
v.
UNIVERSITY OF MINN., SELF-INSURED, adm'd by SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant.
No. 475-86-5986
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 15, 1999
HEADNOTES
JOB
OFFER - PHYSICAL SUITABILITY. Substantial evidence
supports the compensation judge's determination that the
transitional recycling job exceeded the employee's
physical restrictions. The compensation judge's
determination that the recycling job was not physically
suitable renders irrelevant the question of the
employee's good or bad faith in attempting the job.
REHABILITATION
- COOPERATION; JOB SEARCH - SUBSTANTIAL
EVIDENCE. Substantial evidence supports the compensation
judge's finding that the employee cooperated with
rehabilitation assistance and conducted a reasonably diligent
job search.
Affirmed.
Determined by Johnson, J., Wilson, J. and Wheeler, C.J.
Compensation Judge: Janice M. Culnane
OPINION
THOMAS
L. JOHNSON, Judge
The
self-insured employer appeals from the compensation
judge's determination that the employee's
transitional job in the employer's recycling center was
not physically suitable, and that the employee made a good
faith effort to perform the recycling job. The
self-insured employer further appeals from the compensation
judge's finding that the employee made a diligent search
for employment and cooperated in good faith with
rehabilitation efforts, and from her award of temporary total
and temporary partial disability benefits. We affirm.
BACKGROUND
The
employee, Richard Dziuk, had been employed as a building and
grounds worker by the self-insured employer, the University
of Minnesota, for ten years. On July 29, 1997, the
employee was cleaning up after flooding on the 18th floor of
Moos Tower. He sustained an admitted, work-related
injury to his low back while emptying a barrel filled with
wet acoustical ceiling tile into a dumpster. The
employee was seen at Fairview Riverside Hospital the
following morning complaining of stabbing pain in the right
low back. He was given pain and anti-inflammatory
medications and was taken off work.
The
employee was then treated by Dr. Thomas Chester at
HealthWorks. Dr. Chester diagnosed an acute lumbar
sprain/strain, prescribed medications, and referred the
employee to physical therapy. The employee continued to
experience low back pain and stiffness, and in October 1997,
Dr. Chester referred the employee to an orthopedist, Dr.
David Boxall. The employee was first examined by Dr.
Boxall on November 14, 1997. The employee reported
persistent low back pain and intermittent pain radiating down
the right leg. On examination, the doctor noted
restricted range of motion and normal neurological
findings. Dr. Boxall diagnosed a Grade I
spondylolisthesis at L5-S1 and recommended a trial with a
lumbar corset.
At
about this same time, the self-insured employer assigned a
qualified rehabilitation consultant (QRC), Patrick Wilder,
who initially met with the employee on November 5,
1997. On November 17, 1997, QRC Wilder sent to Dr.
Boxall a description of a job in the employer's recycling
center. (See Exs. E, M; Ex. 1.) Dr. Boxall replied
it was "ok to start," four hours a day, with no
twisting, stooping, bending or climbing
ladders. Apparently no light-duty work was available
within Dr. Boxall's restrictions at that time. (See
Ex. E: 12/10/97 chart note.) On December 1, 1997, the
employee requested a change of QRC to Thomas
Saby. (Judgment Roll.)
The
employee returned to Dr. Boxall on December 10, 1997,
reporting persistent low back pain radiating to the right
buttock. On exam, the doctor noted muscle spasm and
limited range of motion. Dr. Boxall prescribed a rigid
brace and referred the employee to physical therapy for
instruction in back stabilization and trunk
strengthening. He released the employee to return to
work with restrictions of no lifting over 20 pounds, avoid
prolonged sitting or standing, and avoid repetitive bending
or lifting.
On
December 23, 1997, the employer sent a letter to the employee
confirming a temporary assignment to the recycling center,
starting December 29, 1997. (Ex. H.) On December
26, 1997, Dr. Boxall increased the employee's lifting
restriction to 25 pounds, and indicated the employee could
work full time. That same day, the employee filed a
Rehabilitation Request seeking approval of the requested
change to QRC Saby. The self-insured employer...
