Raymundo Torres, Appellant, vs. Doherty Employment Group, Respondent, General Insurance Company of America, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-97

Raymundo Torres,

Appellant,

vs.

Doherty Employment Group,

Respondent,

General Insurance Company of America,

Respondent.

Filed September 9, 2003

Affirmed

Parker, Judge*

Hennepin County District Court

File No. 02-10740

Catherine R. Caitlin, 208 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN  55415 (for appellant)

James R. Andreen, Erstad & Riemer, P.A., 200 Riverview Office Tower, 8009 - 34th Avenue South, Minneapolis, MN  55425 (for respondent Doherty Employment Group)

Lindsay G. Arthur Jr., Keesha M. Gaskins, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., 500 Young Quinlan Building, 81 South Ninth Street, Minneapolis, MN  55402 (for respondent General Insurance Company of America)

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Raymundo Torres sued his former employer, Doherty Employment Group, and its workers' compensation insurance carrier, General Insurance Company of America (GICA), for damages related to their handling of his workers' compensation claims following a work-related injury.  Torres appeals the district court's decision granting summary judgment for Doherty and GICA, arguing that there are genuine issues of material fact as to whether respondents intentionally obstructed his workers' compensation benefits and that he was discharged from Doherty in retaliation for filing his workers' compensation claim.  We affirm.

D E C I S I O N

On appeal from summary judgment, this court considers whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997); see also Minn. R. Civ. P. 56.03 (stating district court standard for summary judgment).  No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  "[T]he party resisting summary judgment must do more than rest on mere averments."  Id. at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  In assessing the evidence, we take the view most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  

Minnesota law allows a civil action against anyone "intentionally obstructing an employee seeking workers' compensation benefits."  Minn. Stat. § 176.82, subd. 1 (2002).  This civil action is separate and independent from any penalties provided under the Workers' Compensation Act and is available only in "those situations where the insurer's delay or denial of benefits goes beyond unreasonableness, neglect, or obstinance."  Bergeson v. United States Fidelity & Guar. Co., 414 N.W.2d 724, 727 (Minn. 1987); cf. Minn. Stat. § 176.225, subd. 1(b), (f) (2002) (allowing damages under the Workers' Compensation Act when an employer or insurer "unreasonably or vexatiously" delays or discontinues workers' compensation benefits).  To maintain a civil action under section 176.82, subdivision 1, the employee must establish by clear and convincing evidence deliberate, outrageous, and extreme conduct that obstructs or hinders the receipt of benefits due the injured worker.  Bergeson, 414 N.W.2d at 727.  The conduct must rise to a level that is egregiously cruel or venal.  Id.

Torres alleges that the notices of intent to discontinue benefits (NOIDs) he received after he filed his workers' compensation claim constitute a pattern of harassment from Doherty and GICA that is cruel and venal.  But an examination of the record shows no genuine fact dispute regarding whether Doherty or GICA acted in a cruel or venal manner.  

After his injury, a doctor restricted Torres to light duty at work from May 4 to May 7, 2001.  On May 8, GICA filed a NOID because Torres had not provided medical authorization for time off beyond May 7.  Under Minnesota law, "[t]emporary total disability compensation shall cease if the employee has been released to work without any physical restrictions caused by [a] work injury."  Minn. Stat. § 176.101, subd. 1(h) (2002).  Because GICA had not received any documentation that indicated Torres's work restriction would continue after May 7, GICA filed a NOID to terminate Torres's temporary total disability compensation benefits.  For the same reason, GICA issued the August 8 NOID because the company was not aware that Torres's work restriction would continue beyond August 8.

GICA also issued a NOID in September 2001 for failure to cooperate with medical treatment because Torres cancelled a physical therapy appointment that was prescribed for his work injury, and he had not rescheduled the appointment as of the date the NOID was issued.  This NOID was issued because workers' compensation benefits may be suspended if the employee refuses reasonable medical treatment.  See Dotolo v. FMC Corp., 375 N.W.2d 25, 28 (Minn. 1985).

In November 2001, GICA filed a NOID because Torres was offered a position within his work restrictions, but he failed to arrive at work on time due to transportation problems.  The NOID was also amended to state that benefits were discontinued because Torres was released from his work restrictions in December.  A compensation judge determined that Torres's transportation problems did not establish reasonable grounds to discontinue benefits, and GICA reinstated and paid Torres's benefits.  Although a compensation judge determined that this NOID was unreasonable, an insurer's wrongful refusal to pay a claim without more is not sufficiently cruel or venal to justify recovery under section 176.82.  See Markgraf v. Douglas Corp., 468 N.W.2d 80, 82 (Minn. App. 1991) (stating that insurer's wrongful refusal to pay a claim, without more, is not sufficiently cruel or venal to justify recovery under section 176.82).

GICA also issued a NOID in May 2002 because Doherty offered Torres a first-shift position, which he refused to accept due to transportation difficulties.  Temporary total disability benefits shall cease if the employee refuses an offer of gainful employment that the employee can do in the employee's physical condition.  Minn. Stat. § 176.101, subd. 1(i) (2002).  Although Torres did refuse Doherty's employment offer, a compensation judge determined that the NOID was unreasonable due to Torres's transportation problems, and GICA reinstated Torres's benefits.  Again, GICA's wrongful refusal to pay Torres's claim is not sufficient, without more, to establish cruel or venal conduct.

The remaining NOIDs were issued because Torres found employment with other companies.  Temporary total disability compensation shall cease when the employee returns to work.  Minn. Stat. § 176.101, subd. 1(e) (2002). 

Thus, the record shows that GICA had a legally appropriate reason to file all but two of the NOIDs, and that GICA reinstated Torres's benefits after the two remaining NOIDs were deemed unreasonable by compensation judges.  As a matter of law, two unreasonable NOIDs do not constitute a pattern of harassment from Doherty and GICA that is outrageous, extreme, cruel or venal.  Because Doherty and GICA did not act in a cruel manner, Torres failed to establish the existence of a genuine issue of material fact as to whether Doherty or GICA intentionally obstructed his workers' compensation benefits.

Torres also alleges that GICA's "refusal" to approve Torres's rehabilitation was cruel or venal conduct.  The record indicates GICA denied these rehabilitative services because Torres's treating physician did not prescribe them.  Torres argues that his new treating physician prescribed the rehabilitation, but there is no evidence in the record that indicates GICA was ever informed that Torres had changed treating physicians.  Thus, GICA's denial of benefits cannot be deemed cruel or venal conduct.

Torres's argument that GICA's "refusal" to pay wage loss constitutes cruel conduct also fails.  In his deposition, Torres stated he did not receive some of his wage-loss checks, and that when he contacted GICA he was told that they had sent the checks but they would cancel them and send new checks.  Torres provides no responsive evidence showing that GICA may have purposely lost the checks.  Torres, therefore, has not produced clear and convincing evidence that GICA refused to pay him lost wages and has not demonstrated the existence of a genuine issue of material fact as to whether the lost payments were the result of Doherty or GICA's cruel or venal conduct.

Even if Torres had proven that Doherty or GICA acted in a cruel or venal manner, he would not be able to show that Doherty or GICA obstructed his benefits because Torres admitted that he has received all of his rightful workers' compensation benefits.  Where a claimant receives all workers' compensation benefits to which he is entitled, no actual obstruction of benefits occurs.  Summers v. R & D Agency, Inc.,  593 N.W.2d 241, 244 (Minn. App. 1999).  Because Torres received all the benefits to which he was entitled, he cannot make a prima facie case that Doherty or GICA obstructed his benefits.

Torres also argues summary judgment was inappropriate because he made a prima facie case of retaliatory discharge.  In his memorandum of law in opposition to Doherty and GICA's motion for summary judgment, Torres argued for the first time that Doherty discharged or threatened to discharge him in retaliation for filing his workers' compensation claim.  "Any person discharging or threatening to discharge an employee for seeking workers' compensation benefits . . . is liable in a civil action for damages incurred by the employee . . . .  Minn. Stat. § 176.82, subd. 1.  The only evidence that Torres offered to support this allegation is his own deposition testimony in which he stated that somebody from Doherty told him in December 2001 that he would never be employed through Doherty again.  Torres's testimony does not constitute substantial evidence that Doherty discharged or threatened to discharge him.  Thus, Torres failed to establish a genuine issue for trial regarding the alleged retaliatory discharge.

Torres failed to show that a genuine issue of material fact exists as to whether Doherty and GICA intentionally obstructed his workers' compensation benefits or that he was discharged from employment from Doherty.  At best, the number of NOIDs Torres received could be characterized as unreasonable.  But unreasonable actions do not rise to the level of the deliberate, outrageous, and extreme conduct that is needed to make a valid claim under section 176.82.  This case would more properly be addressed by a claim under section 176.225.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.