DAVID HALLILA, Employee, v. LUND INT=L HOLDING, INC. and ROYAL & SUNALLIANCE INS., Employer-Insurer/Appellants, and CROSSTOWN CLINIC OF CHIROPRACTIC, Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
NOVEMBER 25, 2002
TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s awards of temporary total and temporary partial disability compensation where the employee=s testimony, pattern of medical restrictions, and other evidence support the finding that he was medically unable to work for certain periods and sustained a wage loss as a result of the work injury for other periods.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the awards of temporary partial disability compensation and of temporary total disability compensation. We affirm.
The employee, David Hallila, began working for the employer, Lund International Holding, Inc. (Lund), in 1993. The employee=s first job for the employer was as a full-time production floor worker. This job involved removing fiberglass truck parts from molds. The employee was eventually promoted to the position of lead person in charge of line changes. This job required the employee to haul heavy molds on and off carts and to push the carts to and from various work stations.
Some time before June 2000 the employer informed its employees that its plant would close in the foreseeable future and its employees would be laid off. The employee began considering other jobs and was offered a full-time job as a lead person with another employer, Pearl Baths, Inc. This job was primarily supervisory but occasionally involved assisting in the assembly of luxury bathtub and hot tub units by sitting in a chair under the unit and assembling plumbing parts. Unlike the employee=s work at Lund, this job involved minimal lifting of less than ten pounds. The employee started this job on June 27, 2000. However, he also agreed to continue to work for Lund in the evening on a part-time basis because of a shortage of personnel qualified to perform line change functions. He went to part-time status at Lund after June 19, 2000.
The employee claimed to have sustained a Gillette injury on or about September 11, 2000, attributable to his work duties at Lund. On that date the employee began treating for a sharp pain in his low back with a chiropractor, Dr. Valerie Hoffmann, at the Crosstown Clinic of Chiropractic in Ham Lake, Minnesota. Dr. Hoffmann diagnosed a lumbar strain with acute antalgic muscle spasm, thoracic and lumbar subluxation and bilateral radicular pain. She imposed restrictions limiting carrying and lifting to 20 pounds, with no repetitive twisting, and position changes as needed, and told the employee he could return to work if those restrictions could be accommodated.
On September 15, 2000, Dr. Hoffmann noted that the employee=s condition had rendered him unable to work from September 12 through September 17, 2000. She authorized the employee to work under the previous restrictions from September 18 through 29, 2000. On September 27, 2000, Dr. Hoffmann reported that the employee had been unable to work from September 12 to 19, 2000, but could return to work under the same limitations as previously issued from September 20 to October 13, 2000.
In a letter dated October 9, 2000, Dr. Hoffmann attempted to further clarify the employee=s ability to work, stating that he had been unable to return to work at either the full-time Pearl job or the part-time Lund job from September 11 through September 17, 2000. Beginning on September 18, 2000, the employee had been able to return to his full-time job at Pearl but not to his heavy, part-time job at Lund until September 27, 2000. Dr. Hoffmann noted further that the employee would be laid off from his job at Lund on October 12, 2000, although, in her opinion, he would have been able to continue working in both jobs had he not been laid off from the Lund job.
The employee testified that his back got worse again on November 13, 2000, such that he was not able to work. He continued to treat with Dr. Hoffmann, but no further information about the employee=s medical restrictions is documented in Dr. Hoffmann=s records for this period. On December 5, 2000, Dr. Hoffmann=s notes indicate that she had seen him for his Afinal@ examination under the workers= compensation rules, but that she recommended he seek 12 more chiropractic visits Aif needed as allowed by law.@
On December 8, 2000, the employee was terminated from his job at Pearl due to excessive absenteeism. He began a diligent search for other employment about December 15, 2000.
According to the employee=s testimony, he felt that the chiropractic treatments had stopped helping and he decided to quit going to the chiropractor. On January 9, 2001, he went to the Occupational Health Services department at the Mork Clinic in Anoka seeking to initiate medical treatment for his chronic low back pain. He was examined by a physician=s assistant, who found him to have diffuse tenderness to palpation in the lower back. The employee was given work restrictions effective for the next two weeks, limiting stooping, squatting, crawling and bending to occasional, and limiting lifting or carrying to 20 pounds, with frequent position changes as needed. Two weeks of physical therapy treatment were recommended, with the employee to return for a follow-up examination in two weeks.
The employee did not return to the Mork Clinic as he did not obtain the physical therapy treatment, having learned from the insurer that payment would be denied.
On January 24, 2001, the employee returned to Dr. Hoffmann, who noted that the employee continued to have low back spasms. On the same date, Dr. Hoffmann signed a Health Care Provider Report which recommended that the employee receive chiropractic care on a per need basis for up to 12 visits within the next 12 months. The report also stated that the employee had reached maximum medical improvement, effective on December 5, 2000, but that the employee was not able to return to his former employment.
The employee continued to look for work, eventually finding a job as a delivery driver for Finish Master, an auto body supplier, starting June 4, 2001. He testified that this work did not bother his back. The employee initially worked full time with some overtime, but by the date of the hearing below, March 6, 2002, he was limiting his hours by choice to 32 hours per week so as to take care of his son in the afternoons.
The employee was evaluated at the request of the employer and insurer by Dr. Paul Wicklund on June 28, 2001. On examination, Dr. Wicklund found tenderness in the lower lumbar spine but noted no other positive findings. He diagnosed a low back strain and concluded that the employee had no physical restrictions, needed no continuing medical or chiropractic treatment, had no permanent partial disability and was at maximum medical improvement.
The employee filed a claim petition on November 29, 2000 claiming wage loss benefits and chiropractic bills related to his alleged work injury. An amended claim petition was filed December 8, 2000. The claims came before Compensation Judge Cheryl LeClair-Sommer on March 6, 2002. In her Findings and Order served and filed May 14, 2002, the compensation judge determined that the employee had sustained a Gillette injury to the low back on September 11, 2000, awarded temporary total disability compensation from September 11, 2000 through September 17, 2000 and November 13, 2000 through May 30, 2001 and awarded temporary partial disability compensation from October 6, 2000 through November 12, 2000. The employer and insurer appeal.
1. Temporary Benefits
An injured employee=s entitlement to wage loss benefits, whether temporary total or temporary partial disability benefits, requires proof of some continuing physical impairment or disability caused by the personal injury. See, e.g., Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). However, "where the employee is found medically able to return to work without restrictions, having suffered no residual disability from his work injury," there is no basis for payment of temporary wage loss benefits after that date. Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).
On appeal, the employer and insurer contend that the compensation judge erred in awarding temporary total disability benefits for certain periods in the absence of specific documented work restrictions. The employer argues that the written work restrictions that the employee received from Dr. Hoffmann covered periods which expired on October 13, 2000, and that after he was laid off by Lund, the employee had no documented restrictions, other than for a brief two-week period following his visit to the Mork Clinic on January 9, 2001. The employer and insurer allege that the compensation judge accordingly erred in awarding temporary partial and temporary total disability compensation for those periods for which there were gaps in the specific effective dates of the medical restrictions. The compensation judge, however, found that restrictions were appropriate during these periods based on the employee=s testimony and on the nature and pattern of the restrictions which were provided by the employee=s treating physicians during the time that he was under treatment.
The nature and extent of an employee=s restrictions after a work injury is a question of fact committed to the compensation judge. While work restrictions issued by a physician or other health care provider, where available, provide excellent evidence as to an employee=s ability to work, formal written restrictions are not absolutely necessary in order to support a compensation judge=s findings on the issue. Where gaps are present in the pattern of an employee=s treatment, and consequently in the dates of formal work restriction orders, the judge may reasonably infer that restrictions in effect prior to and subsequent to the period of the date gap remained in effect. See, e.g, Titel v. Thermoform Plastics, Inc., slip op. (W.C.C.A. July 17, 2000); Carson v. City of Duluth, slip op. (W.C.C.A. Nov. 1, 2000).
Even absent any formal medical restrictions whatever, a compensation judge may rely on the testimony of the employee and other evidence of the employee=s ability to perform work following the injury to support a finding that the employee has restrictions on his ability to work as a result of the injury. See, e.g., Carlson v. Northland Paper Supply, slip op. (W.C.C.A. Jan. 8, 1999) (an employee=s testimony constitutes substantial evidence to support finding of restrictions); Nelson v. Northern Milk Prods., slip op. (W.C.C.A. Dec. 11, 1998) (an employee=s testimony constitutes substantial evidence to support finding that the employee has a disability which affects his ability to work and which limits his earning capacity); see generally Brening v. Roto‑Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975) (an employee's testimony alone may serve as a sufficient basis for determination of the physical demands of a job and their relationship to specific symptoms).
2. Evidence of Earnings from October 6, 2000 through November 12, 2000
The employer and insurer next argue that there was insufficient evidence of the extent of the employee=s loss of earnings between October 6, 2000 and November 12, 2000 to support an award of temporary partial disability compensation. The employer and insurer correctly point out that neither pay stubs nor a specific schedule of the employee=s earnings was in evidence for this period.
However, we conclude that there was sufficient evidence of the employee=s reduced earnings to support an award of temporary partial disability. During the period objected to by the employer and insurer, the employee was working solely for Pearl Baths. The employee=s hourly wage rate in that job was clearly in evidence in the personnel records for Pearl Baths which were introduced by the employer and insurer. That the employee worked a full-time, 40-hour per week regular Monday through Friday schedule for Pearl was also clear from the evidence and undisputed. The Pearl personnel records in evidence contained a calendar showing which days the employee worked and which days he was absent throughout the months of October and November, 2000, as well as a list of dates on which he was late for work, with the time he started. While this may not be the best evidence of the employee=s earnings, it is sufficient to permit calculation of his earnings and wage loss for the period in question.
3. Causal Nexus Between Injury and Wage Loss
The employer and insurer next argue that any wage loss sustained by the employee after October 6, 2000 was unrelated to the employee=s disability and due solely to the loss of his part-time job at Lund. They point to the fact that the employee did return to work, first in the job at Pearl, and then, on September 27, 2000, also in the part-time job at Lund, until he was laid off at Lund for reasons unrelated to the work injury on October 6, 2000.
We note, however, that the fact that the employee attempted a return to work in his job at Lund for about a week does not necessarily indicate that the work itself was within his restrictions or that he would have been able to actually continue in that job. Dr. Hoffman=s work restriction form dated September 27, 2000, the last form she issued, restricted the employee to 20 pounds lifting or carrying, required that he wear a back brace for lifting, and limited repetitive twisting. It specifically permitted the employee to work only Aif limitations can be met.@ The employee testified that after he returned to work at Lund, he was still required to work with heavy molds about 30 percent of his work day, and that other employees were not always available to help him with lifting these molds. The compensation judge=s memorandum indicates that she accepted this testimony. On September 29, 2000, only two days after the employee returned to work for Lund, Dr. Hoffmann recorded that his back was Apretty stiff and sore again.@ The records of Pearl Baths show that the employee was late to work three times and missed two days in his day job during the only full week he attempted both jobs.
The compensation judge could reasonably conclude that the employee was not actually medically able to return to work in the second job at Lund, and that this inability also continued after the employee=s condition worsened further in mid November 2000. Since the compensation judge apparently concluded that the employee was medically unable to work a second, part-time job, the fact that the pre-injury second job became unavailable for reasons unrelated to the injury does not sever the connection between the employee=s work injury and his loss of earnings in secondary work. We therefore affirm.
4. Effective Date of Maximum Medical Improvement
The parties stipulated that the employee was served with the January 24, 2001 maximum medical improvement report of Dr. Hoffmann on March 1, 2001. The compensation judge found that maximum medical improvement was reached effective with this service. The employer and insurer contend, however, that the compensation judge clearly erred in failing to find that the employee was provided with this report at his medical appointment with Dr. Hoffmann on January 24, 2001.
The employer and insurer point to their cross-examination of the employee at the hearing below. The employee was first asked a series of questions about what transpired at that appointment. He acknowledged that Dr. Hoffmann told him on that date that she was not going to schedule further chiropractic treatment and that she had done Athe maximum that she could do for me.@ Counsel for the employer and insurer then showed employee a document referred to as Athe January 24th, 2001, Healthcare Provider Report@ maximum medical improvement report, and asked if the employee recalled Dr. Hoffmann giving him a copy of that report Aon January 24th, 2001.@ The employee responded: AI=m sure she did. I don=t remember it.@
The compensation judge=s memorandum reflects that she interpreted the employee=s testimony as indicating that he did not specifically recall receiving this report earlier than March 1, 2001. The employer and insurer submit, however, that this testimony permits no other interpretation than that the employee was physically given a copy of the report at his appointment with Dr. Hoffmann on that date.
We agree that on the face of written transcription, part of the wording of the employee=s testimony appears to agree that Dr. Hoffmann gave him the report on that date. However, we are not convinced that another interpretation of this testimony would be clearly erroneous. In particular, we note that the employee=s statement that he Adid not remember it@ directly contradicts the witness= own foundation for the statement AI=m sure she did@. Depending on the timing, tone, intonation and emphasis of the cross-examiner and the witness, the compensation judge could reasonably have understood the employee=s answer in a variety of ways. As an appellate court, we cannot hear the testimony being said, and generally must defer to the compensation judge=s interpretation of oral testimony unless clearly erroneous. We cannot conclude that the compensation judge clearly erred in interpreting the employee=s testimony as a denial of any recollection of receiving this document at his last visit to Dr. Hoffmann=s office. Accordingly, we affirm.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W. 2d 200, 207, 21 W.C.D. 105 (1960).