DAVID J. GUSTAFSON, Employee, v. ROOS FRICK, INC., SELF-INSURED/BUILDERS & CONTRACTORS W.C. FUND c/o MEADOWBROOK INS. GROUP, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 2, 2002
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee=s treating surgeon released the employee to return to work without work restrictions but the employee=s pain and disablement relating to his work injury continued to prevent him from resuming his employment activity with the employer and limited him to performing work within physical restrictions, substantial evidence supports the compensation judge=s finding that the employee=s temporary total disability benefits should not have been discontinued.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: Paul V. Rieke
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals the compensation judge=s finding that the employee had physical restrictions preventing his return to work with the employer, and his consequent denial of the employer=s discontinuance of the employee=s benefits. We affirm.
On December 8, 2000, David Gustafson, the employee, sustained a work-related left shoulder injury while working as a painter for Roos Frick, Inc., the self-insured employer. On that date, the employee was 52 years old. The employee began treating with Dr. David Carlson of Orthopedic Surgical Consultants, P.A., who diagnosed rotator cuff impingement syndrome and associated acromioclavicular degenerative arthritis. By January 22, 2001, Dr. Carlson recommended surgery, as various types of conservative treatment had not alleviated the employee=s symptoms. On February 27, 2001, Dr. Carlson performed a left shoulder acromioplasty and distal clavicle excision. On April 24, 2001, Dr. Carlson released the employee to return to work without restrictions, and the employee returned to work at his regular job. On April 30, 2001, the employer filed a notice of intention to discontinue benefits (NOID) based upon the employee=s return to work at full wage on April 26, 2001. The employer paid temporary total disability benefits from January 22, 2001 through April 25, 2001.
After a few days at work, the employee noticed pain in his left shoulder, but did not report this to the employer while working. On May 4, 2001, the employer gave the employee a letter advising him of various work policies and specific concerns with the employee=s job performance, and advising that the Ainability or unwillingness to meet these criteria may result in adjustments to your rate of pay or even termination.@ (Er. Ex. 1.) On May 7, 2001, the employee told the employer he was having problems with his shoulder and did not work that day. The employee has not returned to work for the employer since that date.
The employee treated with his family physician, Dr. William Hammes, on May 9, 2001. Dr. Hammes found full range of motion of the left shoulder, but recorded pain at abduction of about 80 degrees and with external rotation and abduction; he also noted intermittent clicking and grating sounds in the employee=s left shoulder. Dr. Hammes recommended restrictions of no lifting, carrying, pushing/pulling with the left arm, no overhead reaching, and no ladder or stair climbing, and referred the employee for an orthopedic evaluation with Dr. Peter Daly at Summit Orthopedics.
On May 14, 2001, Dr. Carlson issued a report in which he concluded that the employee had reached maximum medical improvement (MMI) as of that date, and that he had sustained 2 percent permanent partial disability of the whole body as a result of his December 8, 2000, work-related injury. The employee consulted another orthopedist, Dr. Kayvon Riggi, on May 29, 2001. Dr. Riggi found full range of motion, and rotator cuff strength intact, indicated that full recovery would take up to a year, and recommended that the employee return to Dr. Carlson for guidance regarding a postoperative rehabilitation program, work restrictions and determination of final disability status. The employee returned to Dr. Hammes, who referred the employee to Dr. Barbara Seizert at the Sister Kenney Institute, Abbott Northwestern Hospital, apparently for a pain clinic consultation.
On July 18, 2001, the employee consulted with Dr. Peter Daly, who found full range of motion, but crepitus and tenderness over the AC joint, evidence of mild to moderate deltoid deficiency and positive impingement sign. Dr. Daly recommended additional physical therapy and deferred any assignment of work restrictions to Dr. Hammes. On August 10, 2001, the employee consulted Dr. Seizert, who recommended restrictions extending until October 31, 2001, of no lifting over 20 pounds with the left arm, no overhead reaching, and no resisted abduction or external rotation. According to the employee=s testimony, Dr. Seizert also apparently recommended a type of physical therapy that the employee was scheduled to commence in late August 2001.
An administrative conference was held on June 14, 2001, to address the employer=s April 30, 2001, NOID. By Order on Discontinuance pursuant to Minn. Stat. ' 176.239, served and filed on June 18, 2001, a compensation judge allowed discontinuance of the employee=s temporary total disability benefits. The employee objected to the discontinuance and on August 23, 2001, a hearing was held. The compensation judge limited the issue at hearing to that raised by the notice of intention to discontinue benefits, that is, whether the employer could discontinue benefits on the basis that the employee was released to return to work by Dr. Carlson, with no work restrictions.
In Findings and Order served and filed on August 24, 2001, the compensation judge found that the employee was unable to perform his regular job, that the employee had work restrictions, that the employer had not provided work within his restrictions, and therefore that the employee=s temporary total disability benefits should not have been discontinued. The self-insured employer appeals.
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 (2000). 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.
The self-insured employer appeals from the compensation judge=s finding that evidence of record does not support a discontinuance of the employee=s temporary total disability benefits. The employer argues that since Dr. Carlson released the employee to return to work without restrictions and the employee did not report any physical difficulty after returning to work until after receiving the letter regarding his job performance, the evidence shows that the employee Atook umbrage at this letter from the Employer, decided he wasn=t going to return to work, and went >doctor shopping= until he could find a physician to support his claim.@ We are not persuaded.
The employee contends that the record supports the employee=s ongoing entitlement to temporary total disability benefits. The employee testified that within two or three days after he returned to work, he noticed pain in his shoulder, but that he did not report his symptoms to his employer while working until he Acouldn=t do it any longer.@ (T. 30.) He also testified that he has continued to experience intermittent clicking and grating sounds in his shoulder, and that he now is limited in the amount of lifting and overhead work he can perform. (T. 32, 40-41.) Drs. Hammes, Riggi and Seizert each assigned physical work restrictions to the employee. (Findings Nos. 9 and 13.)
The compensation judge concluded that:
The preponderance of the evidence of record supports the employee=s contention that despite Dr. Carlson=s release to return to work without restrictions the employee continued to have ongoing physical limitations resulting from the work injury which thus far have precluded him from engaging in all the work activities he was able to perform prior to the work injury.
(Memo. at 4.) Substantial evidence, including the employee=s testimony and medical records, supports the compensation judge=s finding that the employee experienced pain and disablement relating to his work injury which prevented him both from resuming his employment activity with the employer and limited him to performing work within physical restrictions, and therefore that the employee=s temporary total disability benefits should not have been discontinued. Accordingly, we affirm. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59, 37 W.C.D. 235 at 239.