JAY M. STUHR, Employee/Appellant, v. PRODUCTIVITY, INC., and GREAT AMERICAN INS. CO., Employer-Insurer.
WORKERS' COMPENSATION COURT OF APPEALS
JANUARY 6, 2000
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical testimony, lay testimony, and medical records, supported the compensation judge=s determination that the employee had not demonstrated an incapacity for full-time employment in his post-injury job with the employer, and further supported the order for discontinuance of temporary partial disability benefits.
Determined by Wheeler, C.J., Wilson, J., and Pedersen, J.
Compensation Judge: Jeanne K. Knight
STEVEN D. WHEELER, Judge
The employee appeals from the compensation judge=s denial of temporary partial disability compensation. We affirm.
The employee, Jay M. Stuhr, sustained an injury to the thoracic spine at the T8 level on February 5, 1991 while working for a prior employer, Coca Cola Bottling Midwest. While recuperating from this injury, the employee was involved in a non-work motor vehicle accident on or about May 18, 1991. A CT scan performed later that year showed degenerative disc disease with a prominent Schmorl=s node at T10-11, and small to moderate Schmorl=s nodes at T12-L1 and L1-2. A thoracic x-ray revealed a T10 fracture. He was subsequently rated with a three and one-half percent permanent partial disability as a result of the non-work injury, and was unable to return to work for Coca Cola, which could not provide work within his medical restrictions. The employee was retrained in industrial lab technology at the Northeast Metro Technical College, and finished the program there in December 1995 or January 1996. The employee remained off work during this entire period. (T. 11-19.)
The employee found a part-time job with the employer, Productivity, Inc., some time in 1994 and then progressed to full-time work for the employer in June 1995. The employee=s job involved working on system layouts, time studies and cost quotes. On July 17, 1997 the employee=s normal workload was relatively light and he agreed to go in a van to pick up some equipment from a supplier. While the employee was waiting for a gap in oncoming traffic to permit a left-hand turn into the employer=s parking lot on the return trip, the van the employee was driving was struck from behind by another vehicle. The employee testified that he began to experience throbbing and aching pain in his back almost instantaneously as a result of this motor vehicle accident. (T. 11, 34-37.)
The employee was taken by ambulance to Methodist Hospital where he was evaluated and diagnosed with a mid-back strain. The employee followed up with Dr. Lussenhop who assessed a thoracic back strain and prescribed medication and physical therapy. Dr. Lussenhop referred the employee to Dr. Bruce Idelkope, a neurologist, for a neurologic review. The employee was first seen by Dr. Idelkope on August 8, 1997. Dr. Idelkope noted that the employee indicated that he had experienced persistent thoracic discomfort without spinal cord or nerve root loss of function since the 1991 work injury at Coca Cola and the 1991 non-work motor vehicle. The doctor determined that the employee had reinjured his thoracic region in the July 1997 work-related motor vehicle accident. He reported that the employee also complained of substantial lower back discomfort radiating into both hips and buttocks but not into the legs. On examination, there was substantial muscular spasm of the lumbar region with complete absence of normal flattening of lumbar lordosis with forward flexion at the waist. Straight leg raising was negative, and Dr. Idelkope detected no evidence of substantial radicular abnormalities. However, in view of the employee=s protracted difficulties, the doctor recommended an MRI scan. (T. 38; Exh. 5: 10/6/98; Exh. 8: 8/8/97.)
The MRI scan, performed on August 20, 1997, showed thoraco-lumbar Scheurmann=s disease without associated advanced degeneration of the lower lumbar discs. The L2-3 through L5-S1 levels were essentially normal, while T10-11 and T11-12 showed moderately severe disc space narrowing and dehydration in association with Schmorl=s nodes. There was lesser involvement of the T12-L1 and L1-2 discs. (Exh. 4.)
At Dr. Idelkope=s direction during the fall of 1997 the employee was treated with physical therapy, an exercise program, steroid injections, mechanical pelvis traction, and a back and neck rehabilitation program at the Minneapolis Clinic of Neurology. He was medically off work following the motor vehicle accident through November 23, 1997 when he apparently returned to work for the employer on a part-time basis. The employee returned to Dr. Idelkope in January 1998 reporting low back and left leg discomfort such that he was barely able to ambulate. Dr. Idelkope states that Agiven the normalcy of his examination and the normalcy of the MRI, I was at a loss to explain why his back and leg discomfort were so substantial.@ The doctor recommended a CT scan and myelography to rule out pathology that might have been missed by the MRI scan. The lumbar CT scan, performed on January 16, 1998, failed to show any neural impingement. Lumbar myelography on the same date was normal and also showed no neural impingement. (Exh. B; Exhs. 5, 6; Judgment Roll: 12/28/98 NOID.)
The dates for which benefits payments were made suggest that the employee was again off work on medical restrictions between February 8, 1998 and April 13, 1998, although medical records for this period are not in evidence. (Judgment Roll: 12/23/98 NOID.)
Dr. Idelkope referred the employee to Dr. E. E. Transfeldt for further evaluation. Dr. Transfeldt saw the employee on March 13, 1998. The employee reported complaints of pain radiating from his lower thoracic spine down to thigh level, with intermittent pain in his left leg. He was noted to walk with a marked antalgic gait. The range of motion of the spine was reduced. Straight leg raising was markedly positive at about 40 degrees on the left. Lasegue=s sign was markedly positive in the supine position but there were no obvious signs of nerve root irritation in the sitting position. No definite objective motor or sensory deficit was seen to follow any particular dermatomal pattern. Dr. Transfeldt noted that the myelogram CT did not show any evidence of clear cut nerve root impingement. His diagnosis was disc degeneration of the lower thoracic spine and a small annular tear at the lumbosacral level, but without focal signs of nerve root impingement seen radiographically. Although the employee exhibited some clinical signs suggestive of nerve root irritation, Dr. Transfeldt concluded that the employee Adoes not have any local nerve root compression and much of his leg pain is probably more of a referred pattern.@ He saw no clear cut role for surgery and recommended continued conservative care and a program of home conditioning and trunk strengthening exercises. (Exh. 3.)
The employee again returned to work for the employer on a part-time basis on April 14, 1998, at first limited to two hours work per day by Dr. Idelkope. The employee testified that the employer has provided him with an orthopedic chair and with a couch in his office Afor when I need to get off my feet and lay down.@ In addition, the employer has excused the employee from further attendance at out-of-town trade shows and from going out to visit customers or do on-site evaluations. The employee further testified that the employer allows him significant flexibility in his work hours and breaks to accommodate his pain. The employee testified that despite these measures he has not been able to work eight hours per day due to throbbing in his low back, shooting pains through the left side, buttock and thigh, and numbness, tingling and burning in his foot. As of the date of the hearing below, the employee was working between four and six hours per day. (T. 28-29, 44, 51-52.) Exh. B; Judgment Roll: 12/23/98 NOID.)
The employee was seen for an outpatient consultation with Dr. John C. Mullan at Neurologic Associates on June 25, 1998. He reported trouble with mid thoracic back pain and low back pain, along with pain radiating down the posterior and lateral aspects of the left leg to the foot, since his motor vehicle accident. On examination low back range of motion was limited to 40 degrees in flexion. Straight leg raising was negative bilaterally. There was decreased sensation in the left leg as compared to the right. Dr. Mullan also reviewed the prior MRI, myelogram and CAT scan, and saw nothing responsible for the left lower extremity symptoms. He ordered an MRI of the thoracic back. Dr. Mullan suggested that the employee engage in activity & employment as tolerated, and opined that no restrictions were necessary. He saw no indications for surgery, and recommended continuing non-surgical management. (Exh. 2.)
On July 1, 1998, Dr. Mullan wrote to the employee after reviewing the MRI scan of the thoracic spine, performed June 29, 1998. Dr. Mullan stated that the study showed no evidence of a disc herniation or any sort of pathology which might account for the employee=s pain. (Exh. 2.)
Dr. Idelkope prepared a narrative summary of his treatment of the employee on October 5, 1998. He opined that maximum medical improvement had been reached on August 4, 1998 and that the employee was permanently restricted from working more than two hours per day and precluded from bending, stooping, twisting, lifting, carry, or reaching. Dr. Idelkope diagnosed a mechanical spine syndrome involving the lumbar spine, and opined that the 1997 motor vehicle accident had resulted in a permanent aggravation of the pre-existing problems with the employee=s thoraco-lumbar strain associated with degenerative disc disease and resulting from the prior 1991 trauma injuries. (Exh. B.)
On October 6, 1998 the employee was seen for a neurologic consultation on behalf of the employer and insurer by Dr. Neil R. Dahlquist. Neurologic examination revealed a pronounced limp involving the left leg. Otherwise, all testing was unremarkable except for diffuse give away weakness involving both lower extremities and a completely non-anatomic decreased sensation to pinprick . Straight leg raising was negative in the seated position and no paraspinal muscle spasm was present. Dr. Dahlquist noted that the employee was seen to restrict the range of motion of his low back in all directions during testing but appeared to have normal range of motion of his lower back otherwise during the exam. His impression was of a marked functional overlay. He opined that the apparently positive examination findings were completely non-anatomic. In Dr. Dahlquist=s opinion, the employee needed no restrictions. He opined that the employee would have reached maximum medical improvement within 8-10 weeks after the 1997 accident which resulted only in a temporary aggravation. Dr. Dahlquist concluded that the employee was capable of working eight hours per day, and that if he did not, this would be due to his functional overlay. (Exh. 1.)
On December 13, 1998 the employer and insurer filed a Notice of Intent to Discontinue temporary partial disability compensation effective after December 18, 1998, based on the opinion of Dr. Dahlquist that the employee was capable of working eight hours per day in his job with the employer. (Judgment Roll.)
An administrative conference was held on the discontinuance before a compensation judge of the settlement division of the Office of Administrative Hearings on January 28, 1999. Following the conference, the judge issued an order on discontinuance permitting the employer and insurer to discontinue temporary partial disability benefits. The employee filed an objection to discontinuance on February 25, 1999. (Judgment Roll.)
In a letter dated May 5, 1999, Dr. Idelkope reiterated his view that the 1997 motor vehicle accident resulted in a permanent aggravation superimposed upon the employee=s juvenile discogenic disease and 1991 trauma injuries which impedes his capacity to perform unrestricted gainful employment. He restricted the employee to four hour work days. (Exh. A..)
The matter came on for hearing before a compensation judge of the Office of Administrative Hearings on May 20, 1999. Following the hearing, the judge found that the employee had failed to prove that he was medically limited to four hours work per day, and granted the discontinuance of temporary partial disability compensation. The employee appeals from the compensation judge=s finding and from the discontinuance of benefits.
STANDARD OF REVIEW
On appeal, this court must determine whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1(3) (1992). Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Factfindings may not be disturbed, even though this 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." Id.
The employee appeals on the basis that substantial evidence fails to support the compensation judge=s findings and order. Specifically, the employee argues that the compensation judge failed to adequately consider the objective findings from the employee=s CT, MRI and EMG testing as support for a permanent aggravation and a need for medical and vocational restrictions. The employee further argues that, in accepting the opinion of Dr. Dahlquist over that of Dr. Idelkope, the compensation judge gave too much weight to the following factors: (1) the absence of a functional capacity evaluation to support the necessity of restrictions for the employee; (2) the failure of Dr. Idelkope to discuss fully Dr. Dahlquist=s diagnosis of functional overly; and (3) the reliance of Dr. Idelkope primarily on the employee=s subjective complaints as the basis for the imposition of restrictions.
The employee=s objections go to the judge=s assessment of the relative weight of the evidence rather than to its overall substantiality. A compensation judge has wide discretion in determining the weight to be afforded to the evidence, and this court will not reverse unless there is clear error or the findings appealed are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole. The factors considered by the compensation judge in reaching her findings were reasonable under the circumstances of the case, and we do not find clear error in the weight which the compensation judge may have ascribed to these factors. The expert opinion of Dr. Dahlquist, in addition to other aspects of the evidence in the case, provided ample support for the finding that the employee was not precluded from full-time employment with the employer, especially in light of the significant accommodations in the job provided by the employer. The judge was not required to accept Dr. Idelkope=s opinion over that of Dr. Dahlquist, and this court will affirm a compensation judge=s choice between the divergent opinions of medical experts unless the opinion relied upon has inadequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Finally, the employee argues that Dr. Dahlquist=s examination was too perfunctory to provide an adequate foundation for his opinion. Dr. Dahlquist reviewed the pertinent medical records, took a medical history from the employee, and conducted an examination. While the employee asserts that the examination was brief, as compared to the history of examination and treatment by Dr. Idelkope, the employee submitted no evidence tending to show that Dr. Dahlquist=s examination was defective in omitting specific tests or other procedures which would be material to the medical dispute. We do not find evidence of a defect in foundation for Dr. Dahlquist=s opinion. Beyond this, the extent to which the relative length or brevity of his examination affected the resolution of the case was one of relative weight for the compensation judge to resolve.
The compensation judge=s findings and order are affirmed.