Boryca v. Marvin Lumber & Cedar

• Decision Date: 07 August 1992
• Docket Number: No. C8-92-253,C8-92-253
• Citation: 487 N.W.2d 876
• Court: Minnesota Supreme Court
• Parties: Larry L. BORYCA, Relator, v. MARVIN LUMBER & CEDAR and Lumbermen's Underwriting Alliance, Respondents.

Page 876

487 N.W.2d 876

Larry L. BORYCA, Relator, v. MARVIN LUMBER & CEDAR and Lumbermen's Underwriting Alliance,

Respondents.

No. C8-92-253.

Supreme Court of Minnesota.

Aug. 7, 1992.

Syllabus by the Court

A worker discharged for misconduct may not be deprived of the permanent total compensation for which the worker would otherwise be eligible under the Workers' Compensation Act.

John A. Winters, Crookston, for relator.

James R. Waldhauser, Susan M. Pasch, Cousineau, McGuire & Anderson, Minneapolis, for respondents.

Wilbur W. Fluegel, Sieben, Grose, Von Holtum, McCoy & Carey, Minneapolis, for amicus, Minnesota Trial Lawyers Assn Bradley Ervin, St. Paul, for amicus, Minnesota Chamber of Commerce.

Heard, considered and decided by the court en banc.

KEITH, Chief Justice.

The Workers' Compensation Court of Appeals reversed a compensation judge's award of permanent total compensation. At issue is whether a worker who has been discharged for misconduct may be deprived of permanent total compensation. We reverse and reinstate the decision of the compensation judge.

The employee-relator, Larry L. Boryca, was employed by Marvin Lumber & Cedar Company (Marvin Lumber) in Warroad, Minnesota, from 1984 through 1989. During his employment, he sustained two compensable low back injuries, the first in 1986 and the second in 1987. Marvin Lumber accepted liability and paid various workers' compensation benefits. Following the second injury, Boryca continued to have low back problems and in April 1988, he underwent spinal fusion surgery. When Boryca's back condition failed to improve, he underwent further diagnostic testing, the results of which showed that the fusion had failed.

In late spring 1989, Boryca was authorized to return to work with significant restrictions, and his doctor recommended he seek employment other than manual labor. Marvin Lumber then made a formal, written offer of light-duty work which he accepted; but when he and his doctors felt this work too demanding, a dispute ensued over his functional capacities. Although Marvin Lumber eventually transferred Boryca to a lighter duty, sedentary position, by late October 1989, his local orthopedic surgeon felt he was incapable of any employment at that time. On October 30, 1989, Boryca filed a claim for temporary total/temporary partial benefits.

On November 6, 1989, Boryca made three telephone calls directed to Marvin Lumber and Lumbermen's Underwriting employees in which he threatened to kill himself and certain individuals involved in his workers' compensation dispute. As a result of this conduct, his employment with Marvin Lumber was terminated.

In January 1990, Boryca was awarded social security disability benefits and in July 1990, following a hearing on his October 1989 workers compensation claim petition, he was awarded temporary total benefits through July 15, 1990, 90 days past maximum medical improvement.

Boryca then filed, in August 1990, a claim for permanent total compensation which was heard by a different compensation judge in March 1991. Finding Boryca unemployable without retraining and incapable of completing retraining because of his disability, the compensation judge determined he was permanently totally disabled as of July 16, 1990, and awarded benefits accordingly. The compensation judge concluded the termination for misconduct was irrelevant to employer/insurer's obligation for permanent total compensation. On appeal, the WCCA reversed, concluding that under the 1983 amendments to the Workers' Compensation Act, Boryca's discharge from employment considered suitable resulted in the forfeiture of all compensation, including permanent total compensation, or, in the alternative, that employee had not established permanent total disability.

I.

At the outset, it must be remembered that the basic purpose of the 1983 amendments to the Workers' Compensation Act is "to provide economic incentive for employers to provide suitable employment for injured employees, to eliminate the unlimited open-ended nature of weekly temporary compensation, and to encourage employees to accept suitable employment." Maktari v. Ford Motor Co., 481 N.W.2d 44, 46 (Minn.1992), quoting Parson v. Holman Erection Co., 428 N.W.2d 72, 76 (Minn.1988). To this end, an injured worker's temporary total benefits will cease no later than 90 days after maximum medical improvement or the end of retraining; temporary partial compensation becomes payable if required; and permanent partial disability benefits are payable as either impairment compensation or the more costly economic recovery compensation depending on whether there has been a job offer meeting the statutory criteria. Cassem v. Crenlo, Inc., 470 N.W.2d 102, 105 (Minn.1991); Minn.Stat. Sec. 176.101, subd. 3a, 3b, 3e and 3p (1990). If the employee rejects a job offered pursuant to subdivision 3e, temporary total compensation ceases; and should the employee secure other employment, neither temporary partial compensation nor rehabilitation services are available. Minn.Stat. Sec. 176.101, subd. 3l, 3n (1990); see Altman, Benanav, Keefe & Volz, Minnesota's Workers' Compensation Scheme: The Effects and Effectiveness of the 1983 Amendments, 13 Wm. Mitchell L.Rev. 843, 874 (1987). Implicit in these provisions, therefore, is the employee's ability to return to work.

In contrast, the provision pertaining to permanently totally disabled workers is predicated on an "inability to return to work," and the kinds of benefits available are not tethered to job offers. Minn.Stat. Sec. 176.101, subd. 3o (1990). ¹ For instance, unlike the temporarily disabled worker whose weekly temporary total benefits cease at maximum medical improvement, at which point permanent partial compensation is paid, the permanently disabled worker may receive concurrent permanent total and permanent partial disability compensation; and once the permanent partial compensation is exhausted, the weekly permanent total compensation continues. An employer is not obligated to offer the permanently disabled employee a "3e" job in order to avoid payment of economic recovery compensation because it is assumed the employee will not be returning to work. In addition, an employee may be determined to be permanently totally disabled after economic recovery compensation has been paid, and there is no offset against future permanent total compensation. Also, payment of economic recovery compensation does not end the employer's obligation for permanent total compensation. Altman, supra, at 887.

In the case currently before us, the WCCA concluded that, pursuant to Minn.Stat. Sec. 176.101, subd. 3l (1990) ² as a result of his discharge from employment for misconduct, employee had forfeited his right to permanent total compensation. Subdivision 3l states that if the employee fails to accept a "3e" job, temporary total compensation ceases. Additionally, periodic impairment compensation ceases when the amount to which employee is entitled is reached and "the employee shall not receive additional impairment compensation or any other compensation under this chapter unless the employee has a greater permanent partial disability than already compensated for." Minn.Stat. Sec. 176.101, subd. 3l (1990) (emphasis added). The Workers' Compensation Court of Appeals interpreted the italicized phrase to include permanent total compensation.

Certainly the sanctions contained in subdivision 3l are intended to encourage prompt re-entry into the workforce. But where a permanent total disability determination is grounded on the inability to return to work on a permanent basis, it seems to us the impetus of subdivision 3l--the loss of benefits--becomes meaningless. Neither the structure of the statutory scheme, the underlying purposes...