STACY PORTER, Employee, v. MIDSTATE/CASS COUNTY RECYCLING and CNA/TRANSP. INS. CO., Employer-Insurer/Appellants, and BLUE CROSS/BLUE SHIELD OF MINN., INSTITUTE FOR LOW BACK & NECK CARE, and ST. JOSEPH=S MED. CTR., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 5, 2000
CAUSATION - SUBSTANTIAL EVIDENCE. Where the employee=s treating physician opined that his cervical spine condition was causally related to an admitted work injury incident primarily related to his right shoulder, the compensation judge was supported by substantial evidence in finding that the cervical injury was work related.
PERMANENT PARTIAL DISABILITY - NECK. Where the employee=s treating physician opined that the employee had a 7% permanent partial disability rating, and there was some evidence that medical providers noted muscle spasm or limitation of motion on several occasions, the compensation judge was supported by substantial evidence in determining that the requirement of Minn. R. 5223.0370, subp. 4(c)(1) or 3(c)(1) for objective clinical findings had been met.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee=s total permanent partial disability ratings exceeded 18%, the employee was 58 years of age, with few transferrable skills, and lived in northern Minnesota, and where his QRC and treating physician indicated that he could not engage in sustained employment, primarily because of the significant restrictions in the use of his arms, the compensation judge was supported by substantial evidence in finding the employee was permanent total, even though an FCE had not been performed to determine the exact nature of the employee=s significant restrictions.
MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE. Where the compensation judge found that the employee had sustained a temporary low back and mid back injury, his award of payment for diagnostic tests to the low and mid back shortly after the injury is not inconsistent with his refusal to award payment for lumbar treatment several years after the injury. The compensation judge=s award of payment for expenses related to treatment of the employee=s heart related problems was clearly erroneous.
Affirmed in part and reversed in part.
Determined by: Wheeler, C.J., Wilson, J., and Rykken, J.
Compensation Judge: William R. Johnson
STEVEN D. WHEELER, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee was permanently and totally disabled, that he sustained a permanent cervical injury on September 16, 1997, and that he should be awarded payment of medical expenses and permanent partial disability related to the cervical injury. We affirm in part and reverse in part.
The employee, Stacy Porter, was first hired by Midstate/Cass County Recycling in 1991. The employer=s plant is located north of Pine River, Minnesota, in the Brainerd Lakes Region in northern Minnesota. The employee=s work activities included constant lifting, including over the head, of materials being brought in for recycling, running a hand baler, buying metals and weighing trucks. The employee characterized the work as heavy manual labor. (T. 25.) He testified that from the time he was first employed until the date of his admitted injury on September 16, 1997, he had no physical problems which hampered his ability to work and he did not lose any time from work because of physical disabilities. (T. 24, 27.) On September 16, 1997, while pulling a plastic tub containing copper scraps, the employee felt sharp pains in his right arm, shoulder blade and back, and within three to five minutes his right arm became numb up to the elbow. (T. 32.) The employee sought immediate medical attention from Dr. Peter Schmitz, an orthopedic surgeon, in the emergency room of a Brainerd hospital. The employee was off work for a brief time and returned to light duty until October 16th or 17th, when he was told to go home because he was unable to perform all of the functions of his job. (T. 38.) At the time of his initial visit with Dr. Schmitz the employee=s principal complaints were pain in his right shoulder and thoracic back. The First Report of Injury indicated that he Ainjured right shoulder in joint and muscles in upper and lower right back are being affected.@ Dr. Schmitz scheduled the employee for surgery in late October 1997. The surgery was delayed until February 1998 because the employee had symptoms of a heart attack in October 1997 and underwent double bypass heart surgery in late November or early December 1997.
Following the right shoulder surgery on February 17, 1998, the employee was assigned a QRC, Tod Paulson, to assist him in his rehabilitation and return to work. The employee returned to work for an auction company answering phones in June of 1998. In August of 1998, he was able to return to the employer doing light-duty work. The employee testified that during this period he exceeded the restrictions placed on his activities by Dr. Schmitz and overused his left arm to compensate for the pain and problems in his right shoulder. He testified that he experienced left shoulder pain as a result of his work activities. In mid October 1998 he was laid off by his employer and had not returned to work in any capacity by the date of hearing in December 1999. As a result of being laid off, rehabilitation assistance from QRC Paulson was revived and the employee made a number of job contacts from October 1998 through January 1999. The job search activity was terminated and the employee applied for social security disability benefits. The employee undertook no job search activities after April 1999. (T. 91.) The QRC recommended that the rehabilitation file be closed in August of 1999.
Following the employee=s right shoulder surgery in February 1998, he underwent several months of physical therapy treatment. At that time, in addition to complaints concerning his right shoulder and back, the employee indicated that he was having problems with neck pain. He received physical therapy treatment for these symptoms. (Pet. Ex. F.) On October 8, 1998, the employee was referred to Dr. D.M. VanNostrand, an orthopedic surgeon, for an evaluation with regard to his permanent partial disability ratings. At that time Dr. VanNostrand indicated that on examination of the employee=s neck he found limitations of motion and muscle spasm. (Depo. Ex. B, p. 24.) On November 2, 1998, the employee noted to Dr. Schmitz, his treating physician, that he was having neck pains. Dr. Schmitz=s office note from that date indicates that x-rays revealed Aarthrosis at C6-7.@ (Depo. Ex. 1.) Dr. Schmitz=s office note from January 26, 1999 states that the employee gave a history of falling on January 18, 1999, while he was looking for a job. The note indicates that the employee reported injuring his left shoulder, low back, neck and thoracic area, which the doctor characterized as Aan aggravation of his previously existing problems in these areas.@ Dr. Schmitz performed surgery on the employee=s left shoulder on April 26, 1999, and referred the employee for a cervical MRI and a consultation and evaluation by Dr. Maria Zorawska, at the Institute for Low Back Care. (Pet. Ex. D and Schmitz Depo. Ex. 1.) Dr. Zorawska examined the employee on May 21, 1999 and opined that, based on the April 14 MRI and her clinical examination, the employee had a spinal stenosis condition at level C3-4. She declined to give an opinion with respect to whether there was a causal relationship between the employee=s September 16, 1997 injury and his cervical problems because she only made a single examination and had not treated him in the interim period. (Pet. Ex. E, 12/7/99 report.)
At the request of the employer and insurer, the employee was examined by Dr. Peter Daly, an orthopedic surgeon, on January 21, 1999 and September 30, 1999. Dr. Daly stated that the only injury sustained by the employee in September 1997 was Aongoing myofascial pain relating to a right shoulder strain type injury.@ (Resp. Ex. 1; Depo. p. 8.) He opined that the employee did not sustain a left shoulder injury while trying to compensate for his right shoulder difficulties and did not sustain an injury to his lumbar, thoracic or cervical spine as a result of the incident of September 16, 1997. In addition, during his examination of the employee, Dr. Daly did not find any objective clinical evidence of muscle spasm or reduced range of motion with respect to the employee=s cervical spine. In his opinion, the employee did not have a permanent partial disability rating for his cervical spine condition.
On November 2, 1998, the employee filed a claim petition as a result of alleged injuries to his spine and right shoulder in which he claimed entitlement to temporary total disability benefits from October 1, 1998, permanent partial disability in the amount of 19 percent of his whole body for the right shoulder injury and 2.5 percent for the thoracic spine injury. In addition, he claimed entitlement to payment for medical expenses and rehabilitation benefits in the nature of a retraining plan. Subsequently, the employee=s claim was amended to add claims for injuries to the employee=s left shoulder, low back, thoracic spine and cervical spine and a claim that the employee was permanently and totally disabled. (Second amendment to EE=s pretrial statement, filed 8/12/99.)
The matter came on for hearing before a compensation judge at the Office of Administrative Hearings on December 8, 1999. The compensation judge determined that the employee=s left shoulder and cervical spine conditions were causally related to the admitted September 16, 1997 incident, that the employee had sustained a permanent partial disability to his right and left shoulders and cervical spine, was entitled to an award of temporary total disability for a portion of the period claimed, and was permanently and totally disabled from July 7, 1999 forward. The compensation judge also awarded payment of certain medical expenses. The employer and insurer appeal from the finding that there was a causal relationship between the employee=s September 16, 1997 injury and his cervical spine condition, the level of permanency attributed to the cervical spine condition, the award of permanent total disability benefits, and the award of certain medical expenses.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employer and its insurer appeal from the compensation judge=s determination that his cervical spine condition, consisting of a spinal stenosis condition at level C3-4, was causally related to the incident which occurred at the employer on September 16, 1997. The issue before this court is whether the compensation judge=s determination that there was a causal relationship is supported by substantial evidence in the record and is not clearly erroneous.
In support of its position, the employer and insurer argue that the following evidence supports it position: (1) the employee failed to report a cervical problem to his treating physician until November 2, 1998, over one year after the initial incident; (2) at the time of his initial treatment by Dr. Schmitz the employee made no complaints of neck pain, limiting his complaints to his right shoulder and mid back; (3) Dr. Schmitz initially requested an MRI of the employee=s thoracic spine, since the only complaints by the employee concerned this area of his spine; (4) Dr. Zorawska, a cervical expert, could not establish a causal relationship between the spinal stenosis condition disclosed in the MRI and the September 16, 1997 injury; (5) Dr. Daly and Dr. VanNostrand did not testify that there was a causal relationship between the September 16, 1997 incident and the employee=s cervical difficulties; and (6) Dr. Schmitz, the employee=s treating physician, did not explain how the employee=s cervical condition was related to his work activity, simply issuing an opinion that there was a causal relationship.
The compensation judge, in making his causal finding, stated that he relied on the testimony of the employee that he had difficulties with his cervical spine shortly after the September 16, 1997 incident. He also relied on Dr. Schmitz=s reports and his deposition testimony in which he indicated that the employee=s spinal stenosis condition was aggravated by his work activities. In addition, the compensation judge noted that the First Report of Injury, filed by the employer two days after the incident, indicated that the Amuscles in upper and lower back are being affected.@ We note that the notes from the employee=s first physical therapy treatment from March to June of 1998 indicate that he was complaining of and was treated for cervical problems. The compensation judge could easily have concluded that it was understandable that the employee=s cervical difficulties may have been overlooked because of the significant problem he was having related to severe pain in his right shoulder and the treatment for his heart condition. The compensation judge indicated that he found Dr. Schmitz=s opinion and the employee=s testimony, as supported by the other facts cited above, as being more persuasive than the opinion of Dr. Daly and the arguments being made by the employer and insurer.
The question of whether there was a causal relationship between the employee=s September 16, 1997 admitted work injury and his cervical difficulties is a question of fact. We give great deference to the compensation judge=s resolution of these factual evidentiary disputes. In this particular case the compensation judge accepted the opinion of Dr. Schmitz over that of Dr. Daly, and as both were properly founded opinions, that resolution of the conflict between the doctors will not be disturbed. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In addition, the compensation judge=s decision was supported by the testimony of the employee and the physical therapy notes. As a result his determination that there was a causal relationship between the employee=s cervical injuries and his September 16, 1997 work activities is affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235.
Permanent Partial Disability Rating
The compensation judge accepted the opinion of Dr. Schmitz that the employee had a 7 percent permanent partial disability rating under Minn. R. 5223.0370, subp. 4(c)(1). (Pet. Ex. A, Depo. pp. 22-23.) The compensation judge found that this rating would have been supported under subpart 3(c)(1) of that rule. (Finding 5.) The employer and its insurer contest these ratings on the basis of Dr. Daly=s opinion that the employee had a zero percent PPD rating to his cervical spine and its position that one of the factors provided in the permanency categories chosen by the compensation judge and Dr. Schmitz had not been met. They argue that there was no evidence of Apersistent objective clinical findings@ substantiating the employee=s cervical spine symptoms.
There is substantial evidence in the medical records which support the compensation judge=s decision. The records show that decreased passive cervical range of motion was found by Dr. VanNostrand in October 1998, by the physical therapist in January 1999, and by Dr. Zorawski in May 1999. In addition, Dr. Schmitz found muscle spasm in November 1999. It is not necessary that these findings be present at every examination. The medical records above would have been a sufficient basis for the compensation judge to have concluded that there were sufficient objective clinical findings to support the 7 percent permanent partial disability rating. As a result that rating and the award of PPD is affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235.
Permanent Total Disability
The compensation judge determined that the employee was permanently and totally disabled after July 7, 1999. The employer and insurer attack the compensation judge=s decision, claiming that it is not supported by substantial evidence in the record and is clearly erroneous. In support of its position it makes the following arguments: (1) the compensation judge=s determination is premature because the employee=s treating physician, Dr. Schmitz, has arguably indicated that such a determination cannot be made until after a functional capacity evaluation has been completed, citing his testimony in his deposition at pages 35 through 37; (2) the employee stated that he wishes to return to work (T. 92); (3) this determination should be delayed until after the employee has been evaluated following anticipated bilateral carpal tunnel syndrome surgery; (4) the adverse QRC hired by the employer and insurer, David Russell, indicates that the employee can do light-duty work and that there are jobs available for him in the Brainerd lakes area; (5) the compensation judge=s reliance on QRC Paulson=s evaluation is flawed because there has not been a functional capacities evaluation; and (6) the employee has failed to conduct a job search and has essentially withdrawn from the labor market.
An employee is totally disabled if Ahis physical condition, in combination with his age, training and experience, and the type of work available in the community, causes him to be unable to obtain anything more than sporadic employment resulting in an insubstantial income.@ Schulte v. C.H. Peterson Constr. Co., 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). In addition, under the current statute, the thresholds of Minn. Stat. ' 176.101, subd. 5, must be satisfied by an employee to be considered permanently totally disabled.
The only issue before the compensation judge was whether, given the employee=s age, experience and training, his physical condition, and the type of work available in the community, he is able to earn anything other than an insubstantial income. The compensation judge determined that there was evidence in the record which persuaded him that it would have been futile for the employee to attempt to look for work and therefore found that he was permanently and totally disabled. As there is sufficient evidence in the record to support this conclusion, we will affirm the compensation judge=s determination.
The supporting evidence includes QRC Paulson=s opinion that the employee is permanently and totally disabled as set forth in his reports in July and November 1999. (Ex. C.) Mr. Paulson indicated that no unskilled sedentary work was available that the employee could do in the Brainerd lakes area. (Ex. C, letter of 12/8/99.) In addition, Dr. Schmitz testified that in his opinion the employee was not employable as a result of all of his disabilities. He specifically testified that the employee could not use his arms on any sustained work basis. (Ex. A, depo. pp. 18-19, 35-7.) While an argument could be made that the employee may be capable of some sedentary work, it was unclear from the testimony of QRC Russell that this would be sufficient to provide the employee with anything other than an insubstantial income. (Ex. 2, pp. 19-22.) While the compensation judge could have deferred the determination of the employee=s PT status, he found that there was sufficient evidence to persuade him that the employee was permanently and totally disabled at this time. We find there is sufficient evidence in the record to support this conclusion and as a result it must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239.
In his findings, the compensation judge awarded the payment of medical expenses at Northern Orthopedics (Finding 10), the Pine River Family Clinic (Finding 11), and the Institute for Low Back Care (Finding 12), and the reimbursement of Blue Cross/Blue Shield for expenses it had paid (Finding 13). None of the findings mention St. Joseph=s Hospital. In his orders, the compensation judge specifically ordered payment of the expenses from Northern Orthopedics (Order 10), St. Joseph=s Hospital (Order 9), the Institute for Low Back Care (Order 7) and Blue Cross/Blue Shield (Order 8). A review of the exhibits and the intervention claims shows that the Pine River Family Clinics may also operate under the name of the St. Joseph=s Family Clinics. We will treat St. Joseph=s and Pine River as one entity with payment of the claimed expenses as covered by Finding 11 and Order 9.
The employer and insurer did not appeal the award to intervenor Blue Cross, and point out that the compensation judge specifically excluded three items in Blue Cross=s itemization because they related to the employee=s lumbar spine, which was not claimed as work related. From these findings, they argue that the award of expenses related to the employee=s lumbar and thoracic spine from Northern Orthopedics and St. Joseph=s/Pine River Family Clinics should also be denied.
In making a detailed review of these bills from Blue Cross, Northern Orthopedics and the Family Clinics, we note that, with respect to the charges related to the lumbar and thoracic spine, the bills the compensation judge awarded were for diagnostic x-rays in September 1997 and May 1998 and the ones he denied were for services rendered in late April 1999. The compensation judge specifically found that the employee sustained a temporary lumbar injury in September 1997 and that the early diagnostic tests were appropriate to help in treatment of the temporary condition. As a result, we find no contradiction or inconsistency in the compensation judge=s denial of the Blue Cross items and the award of the Northern Orthopedic x-rays.
We also find no error in awarding payment of the bill of the Family Clinics for $163.00. This appears to be a bill for physical therapy treatment to the employee=s neck, upper back and both shoulders. (Pet. Ex. F, progress note of 1/28/99; Pet. Ex. H, bill for 1/28/99.) We affirm the award of these expenses.
The only concern we have with the compensation judge=s award of the services provided by the Family Clinic involves the bill for $389.00, related to services between November 12, 1998, and January 7, 1999. The detailed billing attached to the notice of intervention shows that the services rendered related only to treatment of the employee=s heart condition. As a result, the compensation judge=s award of these expenses was clearly erroneous and we reverse the award of $389.00.
 Since the employee in this case was over age 50, in order to be eligible for PT status, he must have a permanent partial disability rating of 15 percent or more. As we have affirmed the compensation judge=s cervical spine PPD rating and the compensation judge found PPD of at least 18.62 percent, from all sources, and the employer and insurer did not appeal that finding, this threshold has been satisfied.
 While the employer and insurer appealed the award of medical expenses related to care provided at the Institute for Low Back Care, they failed to mention these expenses in their brief, and the employer and insurer=s appeal related to these expenses is waived under Minn. R. 9800.0900, subp. 1.
 We assume the reference in Finding 11 to a bill for $398.00 to the Pine River Clinic is a typographical error. The intervention claim was clearly for $389.00, as was the claim in Exhibit H.