Edward Tossey, Relator, vs. City of St. Paul, Respondent.

Edward Tossey, Relator, vs. City of St. Paul, Respondent. C6-97-2036, Supreme Court Order, March 19, 1998.

STATE OF MINNESOTA

IN SUPREME COURT

C6-97-2036

Edward Tossey,

Relator,

vs.

City of St. Paul,

Respondent.

Considered and decided by the court en banc.

O R D E R

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers' Compensation Court of Appeals filed October 6, 1997, be, and the same is, affirmed as modified in accordance with the memorandum attached hereto.

Employee is awarded $400 in attorney fees.

Dated: March 10, 1998

BY THE COURT:

Kathleen A. Blatz
Chief Justice

 

MEMORANDUM

On August 10, 1984, while employed by the City of St. Paul as a firefighter, Edward Tossey sustained serious injuries to his cervical spine, thoracic spine, and right clavicle when the ambulance in which he was riding was struck broadside by a car being pursued by police. While hospitalized for these injuries, the employee complained of back spasms and back pain from his shoulders to the middle of his back and down his spine. Following a period of recuperation, the employee returned to work with the fire department in various capacities, including fire investigator, but the work aggravated his neck and low back. In September 1992, the employee's treating orthopedic surgeon took him off work. The employee then drew down his sick pay and vacation pay, and was awarded a Public Employees Retirement Association (PERA) permanent total disability pension. In January 1993, the employee sought medical attention for heart palpitations related to stress, caffeine, and nicotine. In February 1993, the employee consulted with a psychologist for emotional problems.

While the employee was still exhausting his paid leave for PERA disability purposes, the employer extended to the employee a written job offer as an administrative assistant to the fire chief on April 2, 1993. On April 13, 1993, the employee filed a rehabilitation request with the Department of Labor and Industry (DOLI) to resolve questions concerning the suitability of the work offer, and by letter dated April 15, 1993, the employee responded to the employer that he would accept the job offer if he was released for work by his treating doctors. In response to the employee's rehabilitation request, the employer took the position that the employee had unreasonably rejected a suitable job offer. The rehabilitation request was eventually dismissed by DOLI, apparently on grounds that the employee was not receiving wage loss benefits.

After taking his disability pension, the employee moved to his cabin in Wisconsin to pursue self-employment in taxidermy. In the spring of 1994, the employee moved to Alaska where he obtained various odd jobs. He then returned to Minnesota in March 1995 and obtained part-time work at a rental center in Circle Pines.

Meanwhile, in September 1994, the employee filed a claim for permanent partial disability benefits for the low back disability. The claim was subsequently amended to include claims for temporary partial disability benefits for periods of employment at a wage loss after November 1993, and payment for mental health treatment. On findings that the employee had sustained a low back injury as a result of the 1984 accident as well as a Gillette-type low back injury culminating in disability in September 1992, and that the employee's physical injuries precipitated his mental disabilities, the compensation judge awarded the permanent partial disability and medical benefits. The claim for wage loss benefits was denied, however, on findings that the employee had forfeited his right to future benefits for unreasonably refusing an offer of employment meeting the criteria of Minn. Stat. § 176.101, subd. 3e. On appeal, the WCCA affirmed.

At the outset, we note the employee's objection to the compensation judge's findings that he unreasonably refused an offer of employment and the employer's objections to the findings that the employee sustained compensable back injuries in 1984 and 1992 and that he developed a consequential mental injury. We are satisfied, however, that these findings, as affirmed, are not manifestly contrary to the evidence; indeed, from our review of the record, we conclude, as did the WCCA, that the compensation judge's findings are supported by substantial evidence. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59 (Minn. 1984).

The more troublesome issue concerns application of the forfeiture provisions. Section 176.101, subdivision 3e talks in terms of the discontinuance of temporary total compensation upon an offer of employment meeting the criteria of clause (b) of that subdivision, and clause (c) of subdivision 3e contemplates service of a maximum medical improvement (MMI) report "on the employee for the purpose of determining whether a job offer consistent with the requirements of this subdivision is made." [1] Here, in dismissing the employee's rehabilitation request, it appears DOLI recognized that a judicial declaration as to whether the work offer met the statutory criteria could not be made without regard to the fact that temporary total compensation was not being paid and the fact that an MMI report had not been served as contemplated by subdivision 3(c). Moreover, an employee has 14 days after final disposition in an employment offer dispute to accept the offer before the forfeiture provisions come into play. Manderfeld v. J.C. Penney, 526 N.W.2d 52, 54 (Minn. 1995). Also, contrary to the assertion of the employer, an offer of employment made well beyond 90 days past maximum medical improvement does not meet the criteria of subdivision 3e for purposes of forfeiture. Karulczak v. Crystal Lake Health Care Ctr., 45 Workers' Comp. Dec. 459, 463 (WCCA 1991); Losing v. Willmar Poultry Company, 43 Workers' Comp. Dec. 617, 622-23 (WCCA 1991), aff'd without opinion, 464 N.W.2d 149 (Minn. 1990). [2] We therefore affirm the denial of temporary partial disability benefits, Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864 (Minn. 1988), with modification of the WCCA order reflecting that the compensation judge's findings are affirmed without reference to Minn. Stat. § 176.101, subds. 3e and 3n.

Footnotes

[1] Minn. Stat. § 176.101, subd. 3e(b) and (c) provide:

(b) If at any time prior to the end of the 90-day period described in clause (a) the employee retires or the employer furnishes work to the employee that is consistent with an approved plan of rehabilitation and meets the requirements of section 176.102, subdivision 1, or, if no plan has been approved, that the employee can do in the employee's physical condition and that job produces an economic status as close as possible to that the employee would have enjoyed without the disability, or the employer procures this employment with another employer or the employee accepts this job with another employer, temporary total compensation shall cease and the employee shall, if appropriate, receive impairment compensation pursuant to subdivision 3b. This impairment compensation is in lieu of economic recovery compensation under subdivision 3a, and the employee shall not receive both economic recovery compensation and impairment compensation. Temporary total compensation and impairment compensation shall not be paid concurrently. Once temporary total compensation ceases, no further temporary total compensation is payable except as specifically provided by this section.

c) Upon receipt of a written medical report indicating that the employee has reached maximum medical improvement, the employer or insurer shall serve a copy of the report upon the employee and shall file a copy with the division. The beginning of the 90-day period described in clause (a) shall commence on the day this report is served on the employee for the purpose of determining whether a job offer consistent with the requirements of this subdivision is made. A job offer may be made before the employee reaches maximum medical improvement.

[2] The 1995 legislature repealed the forfeiture provisions. See Act of May 25, 1995, ch. 231, art. 1, § 36, 1995 Minn. Laws 1977, 1999. Under the 1995 legislation, rejection of an offer of gainful employment the employee can do only results in the discontinuance of temporary total compensation. Id., § 17 at 1986-88.