Redgate v. Sroga's Standard Service
421 N.W.2d 729
Minn.
1988
Check Treatment

*1 through foreclosing a lien property on that under the statute was turned of a debt tion property. property. debtor’s into cash award secured the the proceed- the In the context of dissolution the of would affirm decision the court gave security rise to the transac- which affirming appeals the decision of the issue, the trial court and liens here at tions trial court. plainitffs the father determined that —the Redding and the Windom State of James position pur- in the Bank —were not good as faith was the bank

chaser Schwenk, Bank Pennock v.

State Rather, (Minn.App.1986). the the bank and the father

trial court found in the from

had been involved dissolution beginning, charged were with the and REDGATE, Respondent, Bruce knowledge responsibility and same Redding They himself. James charged knowledge that with the SROGA’S STANDARD SERVICE and 518.58, until the dissolution Company, American Mutual Insurance August became final court (CX-87-1759), Respondents Relators up have to one-half of could awarded (C1-87-1763), property to Louise Oldewurtel. non-marital Because and the father taken bank Garling Hope New Foods/Hardee’s security, property question Group, (CX-87-1759), ton Relators held knowledge, the trial court their (C1-87-1763). Respondents judicial subsequent lien to be lien CX-87-1759, implementing property division. Nos. C1-87-1763. Redding, court held that trial also James Supreme Court of Minnesota. accepting quit deed to claim Oldewurtel, farm Louise es- April topped deny priority her lien since he mortgage gotten could not have a first quit farm claim deed. without court, and

It was clear to the trial agreed, appeals it is

court party “a

intent of the law that to dissolu-

tion, during pendency dissolu-

tion, appeals by perfecting bankruptcy through his

filings, property can maneuver family corporations in which he is thereby give director

an officer and

preference to them over his wife when the finally

case is closed.” priority of lien law cannot

The basic rule in the properly applied context these Rather, equitable exception ap-

facts. appeals

plied by court court of trial required. Louise Oldewurtel could be rightful

deprived of her share of marital permit

property law were to James state

Redding gowill property that his assure family-owned bank

to his father and spouse than whose interest in

rather to the

Gregory McClenahan, A. Minneapolis, for Garlington Group. Hardee’s and Cosgritt, Roderick Minneapolis, C. Sroga’s Standard Service and American Co., Mut. Ins. relators Cl-87-1763. Bescheinen, Minneapolis, Lome L. Redgate. Bruce OPINION SIMONETT, Justice. whether,

This case raises the issue post-1983 law, an injured employee who has not reached maximum improve- ment, must make a search for duty work to receive total dis- ability benefits. We hold there is a and that the evidence supports judge’s finding that no search was made in this case. We reverse contrary rulings the Workers’ Ap- Court of peals, weekly wage but affirm the calcula- tion.

Employee-respondent Redgate in- Bruce jured occasions, his back on two first working while as a mechanic for rela- Service, tor Sroga's Standard sec- time, ond working November while Foods, Hope relator New a Hardee’s restaurant.1 After the the employee, with help qualified rehabilitation consul- (QRC), tant found work as a baker and then as a trainee-manager at Hardee’s. At time, was under doctor’s orders to limit back movements and not pounds, lift more than 35 and he receiving temporary partial disability bene- fits employer, Sroga. from his first November reinjured his back at Hardee’s and was unable return later, to work. Some months visited his doctor, Strefling, orthopedist, Marlen who advised him lifting to limit his bending height, to table lift over Sroga’s insurers, insured Garlington Group; American Mutual Insur- both are Company ance and Hardee’s is insured also relators. judge’s' finding of engage only in work an inade- pounds, and to quate job weekly fit. search? and Was the or stand as he saw he could sit where payable employ- wage rate March 10 released the Whether properly calculated? time and whether for work at that ee that date looked for work after I. weeks after the doc- disputed. Two visit, in a Si- law, enrolled pre-1983 compensation tor’s there *3 however, which, injured electronics year obligat were times an worker was retraining pro- part a certified capa was not for he or she ed to search was See, gram. performing. e.g., ble Johnson v. State, Department Affairs, Veterans 3, later, July months Some further (Minn.1987); Mayer 400 N.W.2d 729 v. Er com- hearing held before the a was Decorators, (Minn. ickson claim judge employee’s pensation 1985); Rogde Delivery, Bus United Van from Novem- temporary for total benefits (Minn.1983). 330 N.W.2d 715 The issue hearing time of the to the ber is whether the new here under law an par- continuing, plus temporary concurrent is injured obligated worker to make a dili inju- continuing from the first tial benefits light duty gent prior search working, still not ry. employee The was improvement in reaching maximum medical compensation The was school. but temporary disability receive order to to- employee temporary the judge awarded benefits. disability temporary partial benefits tal and found judge The that as of 4, 1985, the from November date employee March was Hardee’s, injury to March second at yet light duty work had not reached but employee judge found the when the In this improvement. maximum medical by his doctor for had been released 176.101, situation, 3f Minn.Stat. subds. § that duty judge further found work. (1986),relating partially 3h disabled employee not reached maximum provides: employees, (MMI) and, ruling improvement If employer job 3f. offers a required Subd. to make a employee that was * * * employ- job and the is within the diligent job continu- search to be entitled to limitations; employer or the physical ee’s temporary partial temporary total and job employee a for the with benefits, procures employee find that the went on to * * *; employer employee or another had not made that search. ee was not ruled that under new search, and, therefore, appeal, required the WCCA (in law the a employee split decision) diligent was accepts * * *, [*] a [*] job shall [*] cease. another [*] temporary total [*] [*] accepts who 3h. An temporary total benefits after Subd. entitled * * * but, begins 3f continuing; fur- under subdivision March temporary partial ther, diligent shall receive that even if a search that * * finding *. compensation judge’s required, lacked evi- of no search substantial scheme, com- statutory dentiary support, and the WCCA therefore judge that pensation believed that a substituted its own obligated to work. search suitable was explana- search had been made. Without WCCA, hand, thought on the other tion, ruled the WCCA further law, MMI de- Under this new otherwise. partial temporary entitled benefits temporary when termines employers and insur- cease, i.e., days after the worker should appeal, certiorari, ers now to us. 176.101, subd. MMI. section reaches addition, (1) (1986). In total ben- diligent job Is 3c The issues are these: is earlier if the worker offered required law”? efits cease search “new status to the work- setting similar economic Did the WCCA err aside id., er’s time if diligently search for work within his limita light duty job worker is offered a orhe she tions. See also Depart Johnson v. State id., performing, subd. 3f. If ment Affairs, supra. Veterans In this accepts paying job, the worker a lower then context, appears it require search temporary partial benefits are awarded. ment nomay longer respect exist with Id., subd. 3h. The statute silent about injuries occurring after 1983.3 searching any the worker work. Con- search also sequently, the WCCA concluded no appears context, in a second determining required search for entitle- injured whether an totally worker is dis to temporary ment total benefits under the abled. Total under the new law thought law. particular- new The WCCA injury “totally incapacitates exists ly significant that the re- working occupation at an quirement law, expressly set out the old brings which an income.” 176.101, Minn.Stat. subd. § (1986). subd. 5 This expressly carried into the over new *4 is the of same definition total as law.2 appeared under the old law has been Thus, the held WCCA that under the new explained in Schulte C.H. v. Peterson Con injured tempo- law an worker is entitled to Co., struction 278 Minn. 153 N.W. total rary though capable benefits even of 130, (1967), 2d meaning: 133-34 as work, performing long as as the worker is person totally is his physi- disabled if [A] not offered a he can do and has not condition, cal in combination with his improvement. reached maximum medical age, training, experience, and the argue, however, Relators that omission type of work community, available his diligent job search the new law causes him to be unable to any- secure not change intended to the basic notion thing sporadic more than employment re- of compensation the workers’ that law * * * sulting in an insubstantial income. totally only worker is if disabled work- concept temporary total disabili- er physically incapable performing is ty primarily dependent upon is the em- work or to unable find work he is able to ployee’s ability job, to and hold a perform. find physical not his condition. [Footnotes pre-1983 law, omitted, emphasis added.] search seems to have arisen See also McClish v. Baking Pan-O-Gold First, two different contexts. the search Co., (Minn.1983). 336 N.W.2d 542 requirement applied partially to disabled significance of Schulte is seeking partial workers that total temporary disabili- disabili ty ty solely is not on inability benefits at the same based an to temporary rate work, 176.101, perform total but may benefits. Minn.Stat. also be based on an subd. § (1982), supra. quoted inability find injured employee footnote to work an Thus, in Mayer Decorators, v. generally Erickson performing. is supra, Larson, this court denied both temporary Workers Law total and temporary partial 57.50, (1986). benefits be 57.60 Larson also notes §§ injured cause an worker’s failure to obviously that not is unem- 176.101, provided by § subd. erned the law in on effect December part: injury. the date of his need first We If does changes not furnish the worker determine the effect section 176.101, work temporary which he can do in his employee’s tempo- subd. partially disabled condition he is unable rary partial changes those because procure employer, work such with another employee's injury. not effective until after first diligent reasonably effort, Thus, after continuing entitlement to tem- paid shall at the full rate for porary partial benefits will turn on whether he or disability. his her total [Em- diligent made efforts to search for work. Minn. phasis added.] (1982). Stat. deal with subd. We note, however, II, part Redgate’s 3. We this issue in infra. temporary partial gov- entitlement to benefits is jobs, ployable or reduced to “odd-lot then II. require em- it is not unreasonable to brings issue, This us to the next namely, unavailability ployee establish employee Redgate whether conducted a dil- person for a her circumstances search, or, igent job put way, another showing reasonable efforts to secure suit- whether his job was, such as it 57.61(d). employment. able Id. at § sufficient to establish his total disability. us, therefore, diligent It seems to that a judge found that the em- determining job search remains relevant in ployee had not inability “demonstrated disability. injured employee find employment other reasonable proves disability by showing WCCA, search.” The in an doing holding, alternative stated that the unavailable, unavailability is shown ee’s “less than efforts” to find search to no avail. A failure disqualify work should not him from bene- goes “to the fits and set aside the judge’s evidentiary weight of the assertion that inadequate lacking search as employee] totally disabled.” Scott [the evidentiary substantial support. Co., 267 N.W.2d v. Southview Chevrolet ex- (Minn.1978). Rogde 188-89 Thus in plained to he could work if he Delivery, Van Bus 330 N.W.2d 715 United lifting, stooping, avoided certain and bend- (Minn.1983), where the evidence was that ing, if he lifted no more than 10 to 15 pounds the worker could lift 25 and was pounds, and if he could sit or *5 as he stand work, performing some we held restrictions, saw fit. With these the doctor obligated the worker was “light duty job stated that a situation hand, Scott, search. On the other su- acceptable.” trial, have would been At

pra, where the evidence was that because employee understood, admitted he as of health, employee’s age, poor of the and March that his doctor was allow- training, lack of completely he “was unem- ing him to return to work with these re- ployable and be would never able to locate strictions, checking after first with the doc- job,” a N.W.2d we found the pretrial deposition, tor. a employee At employee present need not further evidence testified, however, actively that he had not that he had looked for work. looked work after the Hardee’s just browsing through We hold that unless factors such as than “[o]ther condition, training, age, physical expe paper.” employee At trial the testified dif- employee incapable ferently, stating per- rience indicate an a that he had made obtaining search, anything sporadic telephone but sistent with calls and income, contacts, personal producing job log insubstantial a prove disability current law must by documenting February his search from showing unavailability through of suitable work af June 1986. Two weeks after Schulte, visit, ter a supra. search. the March 10 doctor’s The need for this kind attending of evidence was not enrolled an electronics affected day; the 1983 amendments. It fol classes 6 hours a but he he said employees lows that job inquiries by phone who are continued to make quit work must make a search to and would have school if he had found disability job. employ- establish total even if maximum a Both witness; improvement yet QRC been has not ers called a as a distinguishes reached. The new law expert be ee’s said the was unem- periods ployable, tween before and MMI he but had made no labor market purposes cutting testified, expert off temporary survey; employers’ on benefits; therefore, disability it does not a survey, basis of labor market principles underlying affect the basic en there was suitable work available for the employee. disput- titlement to total in the first in Because Hardee’s ing liability, stance. it had offered the no (Minn. assistance, Jaycees, 358 but Prairie placement rehabilitation 1984). In we said the WCCA Hengemuhle, employee knew argued that Hardee’s weight opportunity give due must QRC how to a past experience with judge credibility, compensation judge to it had offered and that make a that “where the evidence and we noted Employee Red- employee back. to take the may conflicting more than one inference old, high gradu- school gate years is 27 evidence, from the reasonably be drawn engine ate, training with vo-tech compensation judge are to findings of the said supervisors at Hardee’s repair. His Here, majority upheld.” Id. at 60. be and had been excellent worker he was an to make its own the WCCA has chosen management pro- trainee promoted to their credibility probative of the evaluation gram. testimony and to choose value of witness job, produces no jobA search that than different inferences from the evidence that, of the fact persuasive it is to be compensation judge.5 This is not the available, ordinari indeed, must no we or point is not whether role. WCCA’s perfunctory; than ly more be the evidence might have viewed the WCCA words, is a search that in other findings of differently, whether but facts and circum under all the reasonable supported judge are case, Often, may there this stances. might mind a reasonable evidence testimony labor market. expert test, adequate. accept as to consider are wheth Other circumstances scope appli keeping in mind the of review provide employer has undertaken er the court, can to the WCCA and this we cable QRC assistance to the provide or to findings of the com only conclude that the employee in work.4 evidentia- pensation judge have substantial findings support. contrary ry case, In this the evidence almost findings of the are reversed and the WCCA sharp dispute. There every issue was including compensation judge, the denial of was, example, conflicting testimony temporary partial ben temporary total and experts, credi employment of the two are reinstated. efits after employee's testimony bility of the about *6 conflicting as well as evidence III. understood on whether Employer final issue remains. him for work. doctor had released One fact, judge erred Sroga claims the compensation judge, as trier of The employee’s temporary against computing these various issues decided period for the partial disability rate employee. granted, namely, from which benefits were findings compensation judge of the 10, 1986. to March November “if, in the context of the are to be affirmed whole, employee’s average they supported by computing In as a are record weekly wage Hardee’s on November might mind ac- evidence that a reasonable judge correctly re- cept adequate.” Hengemuhle Long v. expert originally may employers’ unaware of be where the 4. There instances light duty for the but the has no employee certain additional restrictions returning activities, after a will be to his old employee’s placed but this was argument, relatively recuperation. short At oral into ac- called to her attention and then taken parties seemed to think that in situation by opinions. compensa- her count her in may practical expect or reasonable to not be consideration, judge, taking all of this into tion temporary light duty to look for testimony employers’ of the chose to find the recuperating while in order to work elsewhere evidentiary expert persuasive. value more This, however, disability. is not total establish here, illustrated of a reasonable search is a case. such if a reasonable but unsuccessful because by employee, that made search had been accept example, 5. For the WCCAdecided expert’s gone contradict the fact would have testimony employee’s employment expert of the testimony employment was avail- that suitable expert employers’ because the of the over that true, testimony It able. latter’s was "flawed." WAHL, jected Sroga’s wages claim that the earned (dissenting). Justice injury be the week before the should I join the dissent of Justice Yetka. per used because the hours fluctuated; instead, week

judge the employee’s wages totaled for the

preceding by 26 weeks and divided the total

26, arriving average wage at an of $161.09. subds.

require the calculation to based days per number worked week and the COMPANY, HOYT INVESTMENT pre- number weeks worked in the etc., Appellant, ceding 6 months. WCCA affirmed the calculation, compensation judge’s reason- BLOOMINGTON COMMERCE AND employee’s hourly wage ASSOCIATES, TRADE CENTER the industry-wide average times $4.25 etc., Respondent, $170, per hours worked week would be

close to the actual rate used. While the Cooley, al., Defendants, William O. et followed, statute should be we think the wage rate compensa- as determined Authority City Blooming Port judge tion is sufficiently adequate and ton, City Bloomington, nothing gained remanding there is to be Respondents. may

for information it appears No. C7-87-536. any event be available. We affirm the Appeals Court of of Minnesota. wage rate calculation. in part Affirmed part. and reversed in

YETKA, (dissenting). Justice affirm Compensa- would the Workers’ thus, Appeals;

tion Court of I dissent from opinion. majority The record discloses

that, months, for period namely,

February through May Redgate Mr. inquiries

made numerous prospective

employers from seeking whom he was

work. He opportunity received notices

from the newspapers personal con- Moreover,

tacts. kept log he of those period.

contacts for that notations log successfully were not rebutted.

What further evidence must an employee prove

submit to a search to find work?

agree Compensation with the Workers’ of Appeals,

Court which found that Red-

gate made a search for work produced the employer no evidence Redgate had failed to conduct such a

search. The Workers’ Court Appeals justified was thus under our

enunciated standards review in revers- judge.