Giese v. Green Giant Co.

YETKA, Justice

(dissenting).

I believe that the issues raised by this case are settled by our decision in Patton v. Thompson Elec. Co., 420 N.W.2d 596 (Minn.1988). In that case, the employee injured his back on March 23, 1984 — after an overhaul of the workers’ compensation laws in 1983. The employer paid temporary total disability until employee went back to work for the same employer, but in a different position and at a reduced wage. The employer paid temporary partial disability benefits until the employee reached maximum medical improvement and thereafter sought a discontinuance of the temporary partial disability benefits. A workers’ compensation judge’s denial of the petition for discontinuance was upheld by the Workers’ Compensation Court of Appeals and by this court. We held that an employee who is working at a suitable job, but at a reduced wage, and who is paid impairment compensation is also entitled to temporary partial disability compensation so long as the disability warrants.

The only differences between the Patton case and this case are that the entire injury in Patton occurred after the 1983 amendments to the workers’ compensation law and that Giese has neither been offered suitable employment by his employer nor has he found such employment. I submit that these differences enhance, rather than weaken, Giese’s entitlement to temporary partial disability benefits.

The parties agree that the purpose of the current law is both to encourage employees to return to work and to encourage employers to offer injured employees suitable work. To effectuate that purpose, the statute provides that, if an employee receives a suitable job offer, he or she is entitled to receive impairment compensation pursuant to Minn.Stat. § 176.101, subd. 3b (1984) along with the temporary partial disability payments. See Patton, 420 N.W.2d at *882597-98. However, if no job offer is made, the employee is entitled to receive economic recovery compensation, which is substantially higher than impairment compensation. The employer argues that an employee who does not receive an appropriate job offer is entitled to receive only the higher economic recovery compensation as a wage loss replacement. This interpretation ignores the clear language of Minn.Stat. § 176.021, subd. 3 (1984), which reads in relevant part:

Economic recovery compensation or impairment compensation is payable for functional loss of use or impairment of function, permanent in nature, and payment therefore shall be separate, distinct, and in addition to payment for any other compensation, subject to section 176.101.

Thus, the statute does not bar the employee from recovering temporary partial disability in either situation, that is, when the employee has or has not received a new employment opportunity.

In addition, it makes little sense to me to provide that an employee who goes back to work may be entitled to temporary partial disability benefits whereas one who has not gone back to work because his employer has not offered him suitable employment is not. The employer who makes no attempt to assist the injured employee in securing appropriate employment is, therefore, required to compensate only for the employee’s impairment of bodily function while making no compensation for the employee’s complete loss of wages. An employer who does rehire an injured employee, on the other hand, is required to compensate for both the loss of impairment and lost wages. Such an interpretation discourages employers from rehiring an injured employee. This makes an absurdity of the statute.1

Further, we have held in Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d 304 (Minn.1987), appeal dismissed, — U.S. —, 108 S.Ct. 1001, 98 L.Ed.2d 968 (1988), that an employee injured after the 1983 legislative revision to the workers’ compensation law is not entitled to on-going total disability benefits, but was entitled to only those economic recovery benefits provided in the 1983 act. However, Joyce did not deal with temporary partial disability benefits nor has the legislature indicated a desire to change the law as to those benefits. In fact, Minn.Stat. § 176.101 (1984) does not limit the payment of temporary partial disability benefits to the 90-day period following maximum medical improvement as it does in the case of temporary total benefits. Compare Minn.Stat. § 176.101, subd. 3e(a) (1984). I would decline to read into the statute a limitation that is not there. Surely, if the legislature had intended to limit these benefits, it could have done so in clear and unequivocal language as it did in regard to temporary total benefits. The legislature, rather than the court, remains in a position to do so.

Finally, one of Giese’s injuries occurred in 1978 while the state was operating under the pre-1983 or “old” law which clearly allowed temporary partial disability benefits to be made indefinitely whether or not the employee had in fact returned to work. Here, the original significant injury was in 1978. It was aggravated by a consequential injury in 1984, a continuance of the earlier injury. Thus, it can be seriously argued that the original injury is the controlling event and the employee’s rights are governed by the old law. Joyce, 412 N.W. 2d at 308.

Because I would hold that the original 1978 injury was a significant one contributing to the present disability of the employee and because the expert testimony available indicates that 50% of the current disability was triggered by that event, following the reasoning used in allowing temporary partial disability benefits, an apportionment of benefits between the two em*883ployers here should be available under Minn.Stat. § 176.101, subd. 4a (1984). Therefore, I would reverse the Workers’ Compensation Court of Appeals solely on that issue.

. It is important to note that tin employee may not, under the statutory system, elect to refuse an offer of employment in order to secure both the higher economic recovery and temporary partial compensation. Indeed, an employee who refuses a job offer gets only impairment compensation, with other substantial penalties imposed. See Minn.Stat. § 176.101, subd. 31 (1984).