CYNTHIA FENNIG, Employee,
v.
TRANSCOM, INC., and FEDERATED MUT. INS. CO., Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 19, 1999
HEADNOTES
TEMPORARY
TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB
SEARCH. Where the employee's medical and employment
records reasonably indicated that she resigned from her job
at least in part because of her work injury, and where
hearing testimony and employment records reasonably indicated
that the employee remained off work for about three months
thereafter with a reasonable expectation of returning to work
with the employer, the compensation judge's award of
temporary total disability benefits for three months after
the employee's resignation was not clearly erroneous and
unsupported by substantial evidence, notwithstanding the fact
that the employee conducted no reasonably diligent job search
during the period at issue.
TEMPORARY
PARTIAL DISABILITY - EARNING CAPACITY; JOB SEARCH; EVIDENCE -
BURDEN OF PROOF. Even where a disabled employee is
released to work full time but is only working part time,
evidence of a reasonable and diligent job search is not a
legal prerequisite to an award of temporary partial
disability benefits but is only "evidence which the
compensation judge may consider in
determining whether the employee's wage loss is causally
related to the work injury." Where the employer and
insurer's appeal from the judge's imposition of the
presumption was based only on the employee's failure to
search for work, the WCCA declined to find improper the
compensation judge's imposition of the rebuttable
presumption provided for in Patterson v. Denny's
Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989), that an
employee's actual post-injury wages earnings reasonably
reflect the employee's actual earning capacity absent a
showing by the employer and insurer of "something more
than a theoretical possibility of a [different] position or
wage."
TEMPORARY
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Although the
disabled employee had been released to return to work full
time but was working at a wage loss only part time, where the
employer and insurer made no showing of "something more
than a theoretical possibility of a [different] position or
wage," pursuant to Patterson v. Denny's
Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989), the
compensation judge's award of benefits based on the
employee's post-injury wages was not clearly erroneous
and unsupported by substantial evidence in light of factors
articulated in Nolan v. Sidal Realty Co., 53 W.C.D.
388 (W.C.C.A. 1995), notwithstanding the employee's
testimony that her post-injury job just "sort of fell in
my lap."
PRACTICE
& PROCEDURE - INDEPENDENT MEDICAL EXAMINATION; STATUTES
CONSTRUED - MINN. Stat. § 176.155, SUBD. 3. Where the
employee had canceled a scheduled IME at the advice of a very
recently retained attorney prior to incurring any reserved
time charges, but then had undergone an IME with another
doctor at a later date, suspension of wage replacement
benefits during the period of the employee's refusal was
up to the sound discretion of the compensation judge, and the
judge's award of benefits for the full period of the
employee's claim, without suspension during the period of
refusal, was not improper.
MEDICAL
TREATMENT & EXPENSE - SURGERY. Where it was
supported by expert medical opinion, the compensation
judge's award of payment for exploratory shoulder surgery
was not clearly erroneous and unsupported by substantial
evidence.
REHABILITATION
- SUBSTANTIAL EVIDENCE. Where substantial evidence had
supported the compensation judge's conclusion that the
employee's resignation from her job with the employer was
related to her work-injury, the compensation judge's
award of rehabilitation benefits was not clearly erroneous
and unsupported by substantial evidence.
Affirmed.
Determined by Pederson, J., Johnson, J. and Hefte, J.
Compensation Judge: Jennifer Patterson
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from the compensation judge's
awards of temporary total disability, temporary partial
disability, medical, and rehabilitation benefits. We
affirm.
BACKGROUND
On
February 19, 1996, Cynthia Fennig sustained a work-related
injury to her left shoulder as a result of lifting some heavy
boxes in the course of her employment as an assistant
warehouse manager with Transcom, Inc. Transcom, Inc.
[the employer], and its insurer admitted liability and
commenced payment of benefits. At the time of her
injury, Ms. Fennig [the employee] was thirty-two years old
and was earning a weekly wage of $460.00. Her education
at the time consisted of a GED and some community college
courses in first aid and law enforcement. Her prior work
history at the time consisted mostly of jobs in the food
service industry and a self-employment venture as a window
washer.
Subsequent
to her injury, the employee saw orthopedic surgeon Dr. Robert
Hartman. On March 5, 1997, Dr. Hartman diagnosed
impingement syndrome, prescribed medication, icing, and
stretching, and administered a corticosteroid injection,
recommending that the employee limit her lifting, pushing,
pulling, and carrying to twenty pounds or less and avoid
overhead positioning of her arm. After none of these
measures proved effective, on April 22, 1997, Dr. Hartman
performed an arthroscopic decompression of the employee's
left shoulder and an arthroscopic distal clavicle
excision. The surgery left the employee with a 3%
permanent partial disability of the whole person and, the
employee being left handed, a significant permanent
impairment in her dominant arm.
About
three weeks after the employee's surgery, Dr. Hartman
released the employee to return to work May 19, 1997,
restricted for six weeks from lifting, pushing, pulling, or
carrying anything over twenty pounds and from any repetitious
overhead use of the arm. Upon her return to work on
Monday May 19, 1997, the employee was assigned to the
employer's boxing room, where her work entailed feeding
empty and still flattened cartons of various sizes through a
labeling machine. The employee evidently performed this
job for about a day and a half before complaining to her
supervisor, Dennis, and then to her Human Resources Manager,
Laurie Stern, that her arm was hurting. The employee was
permitted to call Dr. Hartman, who apparently recommended
that the employee be transferred to work that was less
repetitious.
1 Subsequently the employee was
assigned to do filing tasks in the office. She evidently
continued to feel pain with this work, and on Wednesday May
21, 1997, she called the employer to say that her shoulder
was inflamed and that she would not be coming in. She
did not report for work or otherwise communicate with the
employer for several days thereafter.
According
to a "Note for the file" signed by Ms. Stern, Ms.
Stern called the employee at home on May 28, 1997, to ask
"how she was doing" and to inform her that "if
she is not back on Monday, she will lose her
job." The employee reportedly "said the arm
was sore. She also said that she was in the midst of
having to sell her house in the next three
weeks." Ms. Stern evidently told the employee
"that she needed to have the doctor's office fax me
a note for last week's absence and that she could use
personal time for this week." On Monday June 2,
1997, instead of reporting for work, the employee called in
and left a message for Ms. Stern, resigning from her job,
explaining in part, "I can't do it
anymore." The employee was apparently in the
process of selling her house as a consequence of bankruptcy
proceedings at the time, and two days later she wrote a
lengthy personal letter addressed to both Ms. Stern and the
employer's president, John Rice, further explaining her
resignation. In that letter, she stated in part,
"life just gets tougher & tougher and th[r]ough the
situation with being layed up with my arm and now losing my
house it has been too much. I felt I had no choice in
having to quit Transcom." She stated also in that
letter, "the other reason[,] which is minimal, happens
to be Dennis. . . . . [H]e made me feel as if what happened
to my arm had cramped his style, and he was quite
rude to me because of it, and made me feel very
unwelcomed" (emphasis in original). Finally, she
stated also as follows:
[W]hen I came from the Dr's that day and I showed
[Dennis] the paper that had m[y] restrictions on it and told
him I could finally come back, he looked at it and said and I
quote "You might as well be dead, there is
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