JOSE CANTU, Employee, v. NORTH CENTRAL CONSTR., INC., and CNA COMMERCIAL INS., Employer-Insurer/Appellants, and MN DEP=T OF HUMAN SERVS., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 7, 2002
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee had made a reasonable and diligent job search in light of various factors including the employee=s educational background, physical work restrictions, work experience, work available in the employee=s community and the lack of rehabilitation assistance provided to the employee.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s finding that the employee was still under physical work restrictions while working for another employer and missed work for the other employer due to his work injury.
Affirmed in part and modified in part.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s award of temporary total and temporary partial disability benefits. We affirm in part and modify in part.
On March 22, 1999, Jose Cantu, the employee, sustained an admitted injury to his low back while employed as a welder for North Central Construction, the employer. On that date, the employer was insured for workers= compensation liability in the state of Minnesota by CNA Commercial Insurance, the insurer. The employee was 28 years old, and earned a weekly wage of $440.00.
On March 22, 1999, the employee was attempting to move an extension ladder. As he picked up the ladder to move it, his left foot slipped on ice, and he twisted his back. He noticed pain in his lower back, radiating in to his right thigh. After reporting his injury to his supervisor, the employee worked an additional hour and then consulted Dr. Brian Tilby at Prairie Family Practice. Dr. Tilby diagnosed a lumbosacral strain, and prescribed a Medrol Dose Pak, Carisoprodol and Ibuprofen. Dr. Tilby advised that the employee could return to work within physical work restrictions of no lifting over ten pounds and restrictions on job activities involving bending, kneeling, walking, standing, pushing/pulling and repetitive motion. In his chart note, Dr. Tilby also stated that the employee could return to work with no restrictions by March 29, 1999. The employee returned to work on March 22, 1999, provided those work restrictions to his supervisor, and was sent home for the remainder of the day.
On the next day, the employee reported to the employer for light-duty work, sweeping and picking up articles from the floor. The employee testified that he attempted to perform this job, but that the required bending was too repetitious and caused low back pain. As a result, the employee informed his supervisor that he could not perform the required tasks, and asked that the supervisor call him when the employer had a job he could physically perform. Contradictory testimony was presented at hearing concerning job offers presented to the employee post-injury. The employee testified that the employer has not offered him an alternative job within his restrictions since March 23, 1999. (T. 41-43.) By contrast, the employer=s corporate safety director testified that several weeks after the injury, he telephoned the employee to advise him that the employer had work available that would accommodate his work restrictions. (T. 136-138.) The available job was site clean-up, similar to the light-duty job the employee performed on March 23, 1999. (T. 140-142.) The employer never provided a written job offer to the employee following his injury. (T. 139.) The employee did not return to work for the employer after March 23, 1999.
Dr. Tilby examined the employee again on April 5, 1999. On that date, the employee reported that he was not responding well to the pain medication, and complained to Dr. Tilby Aabout not wanting to go back to work.@ On examination, Dr. Tilby noted essentially no abnormal limitation of motion secondary to pain, and recommended a lumbar spine x-ray and MRI. Dr. Tilby restricted the employee=s lifting to ten pounds, restricted his bending to two to four hours and restricted his activity to approximately 50 percent of his usual activity. Dr. Tilby referred the employee for an x-ray and MRI, and stated that Aif [the employee=s] MRI and x-ray are clear, I would recommend that he go back to full activity and take the Ibuprofen for his discomfort.@ (Ee. Ex. E.).
The employee also consulted Dr. Joan Blonigan-Christenson, D.C., on March 23, 1999, with whom he had treated in 1997 and 1998 for a neck injury sustained in a motor vehicle accident. Dr. Blonigan-Christenson=s records reflect treatment for low back and neck symptoms in 1997 and 1998. Dr. Blonigan-Christenson provided chiropractic treatment to the employee on March 23, 1999, and again on July 6 and December 4, 1999. In addition, the employee underwent two chiropractic treatments in May and June 2000, and six treatments in January and April 2001.
The employee testified that between his injury date and June 1, 1999, he did not search for work, as he believed there was no job available for him for which he had been trained and that he could physically perform. (T. 48-49.) By June 1, 1999, the employee began searching for work. The employee sought work in metal fabricating or assembly jobs; he testified that he did not limit his job search because of his physical work restrictions. (T. 54.) In his search for employment, the employee reviewed listings in the Willmar and Olivia, Minnesota newspapers, searching for employment in neighboring towns within one hour=s driving time. He also searched for job postings via the internet and the Minnesota Job Bank. The employee also testified that he worked with two employment agencies located in Willmar which provided him with job leads. In addition, the employee knew of various potential employers based on information he received while in school training as a welder. The employee was not provided with rehabilitation assistance post-injury. The employee testified that he looked for work on a daily basis, and identified up to two possible employers per day. The employee recalled contacting between 25 and 30 employers during this period of time, June 1 through September 11, 1999; however, at hearing the employee identified only 20 employers to whom he applied. (T. 56-58.) No job logs documenting the employee=s job search were submitted into evidence at the hearing. The employee testified that he kept a notebook recording telephone numbers and information while conducting his job search, although he did not have that notebook with him at the hearing. (T. 105.)
On September 1, 1999, the employee underwent an examination by Dr. Michael Smith, at the request of the employer and insurer. The employee reported low back pain with pain radiating into both legs and occasional shooting pains radiating into his right leg. The employee estimated that he could walk approximately one-half mile before the back pain forced him to stop, and also reported that if he performed physical activities such as lifting, twisting, bending or walking, his low back pain accelerated. Following an examination, Dr. Smith diagnosed a lumbar pain syndrome, and noted Aquestion lumbar spinal stenosis secondary to herniated discs.@ Dr. Smith found no underlying anatomical explanation for the employee=s low back and radiating leg pain. He recommended an MRI scan to evaluate the employee=s spinal canal, nerve roots and discs. Dr. Smith stated that if the MRI scan was normal or showed age-related degenerative changes, then the employee would have reached maximum medical improvement (MMI) no later than three months post-injury. Dr. Smith also stated that if the MRI scan showed Amore serious difficulties,@ then the period of MMI and his recommendations for diagnostic and therapeutic needs would be modified. Dr. Smith concluded that the employee was capable of working while awaiting the MRI scan within enumerated physical work restrictions. Dr. Smith also stated that it was premature to assess permanency, before an MRI scan was taken.
In September 1999, the employee was hired by AlumaCraft to apply decals on boats; on September 9, 1999, he underwent a pre-employment physical at the request of AlumaCraft, with Dr. John Schotzko, Now Care Medical Centers. Dr. Schotzko responded Ayes@ to the following statements: AAble to perform all work@ and Aable to participate in sports without restriction.@ (Er. Ex. 6.) The employee worked for AlumaCraft between September 15 and October 18, 1999. (Ee. Ex. C.) In the employee=s opinion, that job was within his work restrictions, and was less physically demanding than his previous job with the employer. On September 23, 1999, the employee was assigned a different job at AlumaCraft requiring him to vacuum boats. He noticed an increase in his low back symptoms while performing this job, although he attributed his symptoms both to his injury on March 22, 1999, and his work activities for AlumaCraft. The employee received chiropractic treatment from Dr. Teresa Marshall, D.C., between September 22 and October 14, 1999. He also consulted Dr. Tilby, who prescribed medication and physical therapy, which the employee attended between October 21 and November 2, 1999. The employee lost time from work at AlumaCraft due to his back symptoms. He testified that he eventually resigned from AlumaCraft by October 18, 1999, due to his inability to perform the full-time vacuuming position offered to him. (T. 64, 66-67.)
On September 23, 1999, the employee underwent an MRI scan to his lumbar spine. The MRI scan was interpreted to show a small focal disc protrusion at the L1-2 level with no focal disc protrusion at other levels in the lumbar spine. In a supplemental report dated November 10, 1999, Dr. Smith noted that these findings were more consistent with degenerative change, and showed no spinal cord or nerve root compression. Based on the MRI scan and review of additional medical records, Dr. Smith concluded that the employee had reached MMI. He revised his recommendations for work restrictions, and stated that:
The work restrictions have changed. Lumbar degenerative disc disease of this nature is a commonly observed clinical phenomenon. It is difficult to assign restrictions based on degenerative disc disease, as restrictions would be subjective rather than objective in nature. While there is no specific medical directive necessary for restrictions in those with degenerative disc disease, common sense would suggest that heavy lifting greater than 80 pounds on a repetitive basis would not be in Mr. Cantu=s best interest as this occasionally could cause exacerbations of mechanical low back pain due to the underlying degenerative disc disease. Mr. Cantu is capable of working a full day. He is capable of making walking, sitting, and standing transitions. He should be on a job where he can take breaks 15 minutes every four hours and move about although there does not seem to be other particular indications for restriction.
(Er. Ex. 2.) Dr. Smith concluded the employee had no rateable permanent partial disability.
The employee began working for Falcon Industries on approximately November 7, 1999, and continued through July 10, 2000; the employee testified that his low back symptoms persisted while he worked there. In June 2000, he sustained a work-related injury to his right ankle at Falcon. The employee testified that he left his job at Falcon in July 2000 due to the increased physical requirements of his job, and that after leaving Falcon, he continued to search for work as described above. By early May 2001, the employee was offered a full-time welding job with a construction company.
On February 20, 2001, the employee was examined by Dr. Robert Wengler. The employee reported constant low back pain with pain radiating into his right groin, leg and foot, primarily related to physical activity. Dr. Wengler diagnosed a lumbar disc syndrome and stated that his clinical findings suggested a lesion at the L4-5 level on the right side. Dr. Wengler recommended a repeat MRI followed by a lumbar discogram if the MRI was not diagnostic. He preliminarily assigned a rating of ten percent permanent partial disability of the whole body, and stated that
I believe he can work subject to restrictions. I recommend a 10-25 lb. weight lifting restriction and that he not be required to work at activities requiring repetitive bending, stooping, heavy pushing or pulling or working in positions of prolonged postural stress. He should be allowed to move about and assume positions of comfort as necessary.
(Er. Ex. 8.)
On April 21, 1999, the employee filed a claim petition, alleging entitlement to periods of temporary total disability benefits, as well as payment for medical expenses, permanent partial disability benefits, and provision of a rehabilitation consultation. The employee later amended his petition to include a claim for temporary partial disability benefits. Following a hearing on May 9, 2001, the compensation judge issued his Findings and Order, served and filed May 14, 2001. The compensation judge found that the employee was precluded from receiving temporary total disability benefits between his injury and June 1, 1999, as there is no medical support for the employee=s contention that he could not work during this period, and the employee failed to make a reasonably diligent effort to find suitable gainful employment during this period.
The compensation judge found that the employee was entitled to temporary total disability benefits from June 1 through September 11, 1999 and October 18 through November 6, 1999, as well as temporary partial disability benefits from September 11 through October 17, 1999, while he was employed by AlumaCraft. The compensation judge concluded that the employee had reached MMI by November 16, 1999, and that the employee=s March 22, 1999 injury was temporary in nature and had essentially resolved by November 16, 1999. The compensation judge awarded payment of medical and chiropractic expenses incurred by the employee through November 16, 1999. He found that the employee had not sustained a rateable permanent partial disability as a result of his March 22, 1999, injury.
The compensation judge found no causal relationship between the employee=s low back injury and condition and his reduction in earning capacity during his employment with Falcon Industries between November 7, 1999, and July 10, 2000. The compensation judge also found that the employee refused an offer of light-duty work at Falcon Industries, that he was suspended for tardiness on July 6, 2000, and that he voluntarily quit his job at Falcon on July 10, 2000. The compensation judge therefore denied the employee=s claim for temporary partial disability benefits during his employment at Falcon between November 7, 1999, and July 10, 2000. The compensation judge also denied the employee=s claim for temporary total disability benefits between the employee=s resignation from Falcon and the hearing date of May 9, 2001, because the employee did not conduct a reasonable and diligent job search during this time period and because he was precluded from receiving temporary total disability benefits as 90 days post-maximum medical improvement had expired.
The employer and insurer appeal from the compensation judge=s award of temporary total and temporary partial disability benefits.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[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). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.
Temporary Total Disability Claim
The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits between June 1 and September 11, 1999 and October 18 and November 6, 1999. The issue before this court is whether the compensation judge=s award of temporary total disability benefits during this period of time is based on substantial evidence of record and is not clearly erroneous.
Temporary total disability is found when the employee's physical condition, together with his training, experience, and type of work available in his community cause the employee to be unable to obtain anything but sporadic employment at an insubstantial wage. Fredenburg v. Control Data Corp., 311 N.W.2d 860, 34 W.C.D. 260 (Minn. 1981). "[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income." Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967). The compensation judge found that between June 1 and September 11, 1999, the employee was under physical work restrictions related to his low back injury, and that he made a reasonable and diligent job search during this period of time. The compensation judge stated that he took into consideration various evidentiary factors including but not limited to the employee=s education, physical restrictions, work experience, work available in the employee=s community, and the lack of rehabilitation assistance provided to the employee. (Finding 7.)
At hearing, the employee testified as to the job search he conducted during this period of time. We recognize that whether the inability to obtain full-time employment is a result of the personal injury is generally a question of fact for the compensation judge, and any relevant evidence may be considered, including the nature and extent of the employee's job search. Stauty v. Luigino's Inc., slip op. (W.C.C.A. Dec. 19, 1994). The reasonableness and diligence of an employee=s job search must be evaluated by reviewing all circumstances surrounding that search. Lohman v. Pillsbury Co., 40 W.C.D. 45 (1987). In addition, "[t]he reasonableness and diligence of the employee's work search is viewed within the scope of assistance provided by the employer and insurer." Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (citation omitted), summarily aff'd (Minn. Nov. 27, 1985); see also Taylor v. George A. Hormel & Co., 42 W.C.D. 633, 639 (W.C.C.A. 1989). In this case, the employee received no rehabilitation assistance from the employer and insurer. The compensation judge concluded that the employee had made a reasonably diligent job search. This court has held that those factors articulated by the compensation judge herein be considered in evaluating whether a job search is diligent. See also, Miller v. Hanson Plumbing & Heating, slip op. (W.C.C.A. Sept. 21, 1993). Considering the circumstances of this case, there is substantial evidence of record to support the compensation judge=s finding that the employee=s job search during this period of time was reasonably diligent thereby entitling him to temporary total disability benefits. As that conclusion was not clearly erroneous, we must affirm.
The compensation judge also awarded temporary total disability benefits from October 18 through November 6, 1999, a period of unemployment between the employee=s work for AlumaCraft and Falcon Industries. The employer appeals, arguing that the only restrictions placed upon the employee at this time were based upon his subjective complaints rather than any objective phenomena, or, alternatively, that any restrictions the employee might have related to his pre-existing degenerative disc disease. The employer therefore argues that the employee is not entitled to temporary total disability benefits for this period of time. We disagree.
The medical records in evidence indicate that the employee remained under physical restrictions during this period. On October 15, 1999, Dr. Tilby examined the employee, diagnosed a lumbosacral strain, and referred the employee for physiotherapy. The employee underwent seven treatments between October 21 and November 2, 1999, which included therapeutic treatments and instructions on home exercises. At a follow-up examination on October 28, 1999, Dr. Tilby stated that the employee complained of pain down into his right leg in the gluteal and posterior thigh area, and recommended continued physiotherapy, anti-inflammatory pain medications, and Abending limitations secondary to pain.@
In his report of November 10, 1999, issued after his review of the employee=s September 23, 1999, MRI scan, Dr. Smith recommended work restrictions on a Acommon sense@ basis of no lifting over eighty pounds on a repetitive basis, 15-minute breaks every four hours, and provision of a job that allows the employee to move about.
The compensation judge found that the Aemployee=s efforts to be physically rehabilitated were reasonable@ and therefore established entitlement to temporary total disability benefits during this period of time. Contrary to the employer and insurer=s argument that the employee had no physical work restrictions during this three-week period at issue, the medical records show that the employee remained subject to some restrictions. As the compensation judge=s finding is supported by medical evidence of record, we conclude that the judge could reasonably find that the employee was entitled to temporary total disability benefits during this period of time, and therefore affirm.
Temporary Partial Disability Claim
The employer and insurer appeal from the compensation judge=s award of temporary partial disability benefits during the period of time the employee was working for AlumaCraft, September 11 through October 18, 1999. This court must evaluate whether that finding is supported by substantial evidence of record and is not clearly erroneous.
An employee is entitled to temporary partial disability benefits Awhile the employee is employed, earning less than the employee=s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee=s partially disabled condition is due to the injury.@ Minn. Stat. ' 176.101, subd. 2(b). In order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). See also Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).
The compensation judge concluded that while employed at AlumaCraft, the employee was still subject to physical work restrictions; that finding is supported by substantial evidence of record. The employee testified that occasionally he missed work at AlumaCraft due to his back condition. The compensation judge accepted this testimony as being credible. He concluded the employee=s earnings at AlumaCraft represented his earning capacity for that period of time, and that his reduction in earnings related to the effects of his work-related injury on March 22, 1999. That finding is supported by substantial evidence of record, including medical evidence and the employee=s testimony. As that decision is not clearly erroneous, we affirm.
Modification of Award
The compensation judge found that the employee worked for AlumaCraft between September 11 and October 18, 1999, and ordered payment of temporary partial disability benefits between those dates. However, the record shows that the employee worked for AlumaCraft between September 15 and October 18, 1999. We modify the award of temporary partial disability accordingly, to be paid between and including September 15 and October 18, 1999. We also modify the awards of temporary total disability benefits accordingly, to be paid between and including June 1 and September 14, 1999, and October 19 and November 6, 1999.
 The employee resided in Olivia, Minnesota, approximately 25 miles from Willmar.
 In their Notice of Appeal, the employer and insurer also appealed from the compensation judge=s award of payment for medical and chiropractic expenses, but made no argument in their brief regarding that issue. Issues raised in the notice of appeal but not briefed are deemed waived. Minn. R. 9800.0900, subp. 1. Therefore, that issue is waived and will not be addressed.