JUAN QUITEVIS, Employee/Cross-Appellant, v. M.W. ETTINGER TRANSFER and MINNESOTA ASSIGNED RISK PLAN/BERKLEY ADM=RS, Employer/Insurer, and TRANSX, LTD., MIDWEST SAFETY GROUP, SELF-INSURED/ADMINISTRATIVE CLAIM SERVS., INC., Employer-Insurers/Appellants, and AMERICAN MEDICAL SECURITY, DOWNTOWN ORTHOPEDICS, P.A., MN DEP=T OF LABOR AND INDUS./VRU, and MN DEP=T OF ECONOMIC SEC., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 12, 2002
CAUSATION - GILLETTE INJURY. Substantial evidence supports the determination of the compensation judge that the employee sustained a Gillette injury as of the date of his layoff from the employer.
PERMANENT PARTIAL DISABILITY. Reference by the compensation judge to other injuries as causative factors did not preclude an award of permanent partial disability against a subsequent Gillette injury which was also a substantial contributing factor.
PERMANENT PARTIAL DISABILITY - LUMBAR SPINE. Substantial evidence, including the opinion of the IME, supports the denial by the compensation judge of claimed permanent partial disability to the lumbar spine.
TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence supports the denial of temporary total and temporary partial disability where the employer was under no restrictions which would prevent him from performing his usual employment.
TEMPORARY PARTIAL DISABILITY - CALCULATION. Where averaging the employee=s post injury earnings includes weeks in which the employee did not work and weekly earnings are available, temporary partial disability benefits should be calculated on a week by week basis.
Affirmed in part, modified in part, and reversed in part.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Ronald E. Erickson.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the decision of the compensation judge finding an injury on April 29, 1995, the award of permanent partial disability to the cervical spine, the award of temporary partial disability, and the award of rehabilitation services. The employee cross-appeals from the compensation judge=s denial of permanent partial disability to the lumbar spine and the compensation judge=s denial of a period of temporary total and temporary partial disability benefits. We affirm in part, modify in part, and reverse in part.
Juan Quitevis, the employee, began working for M.W. Ettinger as a local delivery truck driver in 1972. In approximately 1989, M.W. Ettinger was sold to Transx. The employee continued to work as a local delivery driver performing for Transx the same duties he had done for M.W. Ettinger.
On July 10, 1980, the employee was involved in a work-related motor vehicle accident in which he sustained significant personal injuries. Ultimately as the result of the injury the employee underwent a right L4-5 hemilaminectomy in January 1982. In April 1982 the employee was assessed as having sustained a 15 percent permanent partial disability of the spine with 5 percent attributed to the employee=s cervical complaints and 10 percent to the low back injury. In 1983 the employee and employer entered into a settlement closing out all benefits related to the 1980 work injury, including medical expenses, in return for payment to the employee of the 15 percent permanent partial disability rating.
In 1983 and 1984 the employee treated for low back symptoms with osteopathic care and chiropractic adjustments. Although the employee was generally able to perform his regular job duties he testified that he was never at 100 percent after the 1980 injury.
On December 1, 1987, the employee slipped on the ice and fell while he was putting down the wheels on a trailer. The employee was diagnosed as having sustained a lumbar strain/sprain and peroneal nerve contusion. The employee missed approximately one month of work and then was released to return to work with no restrictions. The employee reached MMI from this work injury in April 1988 with no permanent partial disability and no permanent restrictions. The employee began treating in 1990 with a chiropractor and with his family doctor for low back complaints. In April 1991, a CT scan was done which showed a herniated disc centrally to the right at L4-5 and degenerative disc disease at L5-S1 with foraminal stenosis. Dr. Terrance Capistrant evaluated the employee in May 1991 and concluded that the employee=s diagnosis was likely degenerative changes in the low back with some facet pain possibly with a radicular component from a combination of degenerative changes and foraminal stenosis. Dr. Capistrant recommended manipulation therapy. No work restrictions were given and no reference was made to the cervical spine.
Based on the recommendation of Dr. Capistrant the employee treated at St. Anthony Park Clinic through October 1993. On one occasion in December 1991 the employee=s problem at that visit was identified as being cervical disc syndrome and it was noted that the employee=s neck was hurting from riding in the truck. His family doctor, in December 1991, also noted that the employee was experiencing cervical complaints which were attributed to the high seat in the truck cab which required the employee to drive with his neck in flexion. Manipulation therapy for the employee=s low back symptoms at St. Anthony Park Clinic ended in October 1993. In February 1993 the employee presented to United Occupational Health with a history of an injury to the neck about one month previous when he was unloading a truck and got a sharp pain in his neck. A similar incident was reported to the doctors at United Occupational Health in November 1993. At that time the employee was placed on work restriction as well as given medication for his complaints. The employee was ultimately sent to physical therapy. Marked improvement was noted in February 1994. At that time Dr. Julia Halberg at United Occupational Health prescribed an ergonomic seat for driving and recommended light duty. Physical therapy was continued as well.
The employee returned to see Dr. Halberg on March 7, 1994. Because of the continued improvement in the employee=s condition, the doctor determined that the employee needed to return to see her only on an as-needed basis. She indicated again at that time that it was important for the employee to have the modified chair in the truck previously discussed to help minimize the risk for further injury. No work restrictions were provided to the employee at that time.
In June 1994, the employee returned to United Occupational Health with a complaint of recurrent neck pain. The chart note on that date referenced an injury in September 1993, while unloading a truck. The note also stated that the employee alleged his neck was worse because he was unable to get the seat adjusted on his truck and he had to sit with his head scrunched forward. The employee was given a prescription for Motrin but was not placed on work restrictions.
In September 1994, the employee went to his family doctor at Shoreview Family Physicians and to St. Anthony Park Clinic with low back complaints. His family doctor recommended a lumbar CT scan which was done on September 27, 1994. The disc herniation at L4-5 shown in the 1991 scan was no longer present. Otherwise there were no changes other than some moderate changes of spondylosis. The employee was referred back to Dr. Capistrant. Dr. Capistrant recommended an epidural steroid injection which was done in November 1994. In January 1995, the employee returned to United Occupational Health for cervical problems. On examination the doctor found marked tenderness and spasm of the rhomboideus and trapezius muscles. He was continued on ibuprofen which had been prescribed for a rib fracture previously. It was also noted that the truck the employee was using had a seat not well designed for long term driving and the employee identified this as a source of his problems. On re-check the employee was kept on work restrictions and referred back to Dr. Capistrant.
Dr. Capistrant saw the employee on January 31, 1995. Dr. Capistrant=s impression was that of cervical degenerative disease with aggravation from his truck driving job. In the low back the doctor noted symptoms suggestive of lumbar radiculopothy. Home cervical traction and lumbar epidural steroid injections were recommended. The doctor concluded AI would also suggest altering his seat in his truck to afford him the best comfort position to help prevent reoccurring back and neck problems.@
On April 29, 1995, the employee was terminated by Transx. The employee testified that he had been advised that the company was sold and that everyone who had been a union member was let go. There was conflicting evidence as to whether or not an over-the-road driving job was available to the employee, but the employee did not work thereafter for Transx.
According to the employee he then applied for and received unemployment benefits. The employee also applied for but was denied social security disability benefits. The employee contacted the Vocational Rehabilitation Unit (VRU) of the Department of Labor and Industry in April 1996. In May 1996, the employee returned to his family doctor who provided work restrictions of no standing for longer than 20 minutes in one spot, no lifting of more than 30 pounds, no work with arms over the head and avoidance of work with lifting of more than one-third to one-half time and with no more than occasional kneeling, crouching or stooping.
The employee was evaluated by Dr. Paul Wicklund at the request of M.W. Ettinger on June 13, 1996. Dr. Wicklund, in his report of June 18, 1996, related the employee=s long medical history, referred to his examination, and provided a diagnosis of L4-5 degenerative disc disease following L4-5 laminectomy for right-sided disc and L5-S1 degenerative disc disease. Dr. Wicklund did not address the employee=s cervical complaints. Dr. Wicklund opined that the injury at M.W. Ettinger on December 1, 1987 was not a factor in the employee=s ongoing low back condition. Dr. Wicklund provided restrictions of no repetitive bending, twisting, or stooping and no lifting over 50 pounds. Dr. Wicklund stated that these restrictions were due to the employee=s 1980 work accident.
The employee was also referred by his attorney for an evaluation with Dr. Robert A. Wengler, who first saw the employee on June 26, 1997. Dr. Wengler concluded that the employee had discogenic neck and low back problems which did not require specific orthopedic intervention. Dr. Wengler further concluded that the employee had sustained a Gillette injury as of April 29, 1995, in the course of his employment as a truck driver. Dr. Wengler also provided a rating of permanent partial disability which was modified in his August 30, 2001 report. In his subsequent report Dr. Wengler stated that the work restrictions were the result of both the December 1, 1987 injury and the 1995 Gillette injury. According to Dr. Wengler the 1987 injury was a reherniation and permanent aggravation of the lumbar spine and the 1995 Gillette was a significant contributing factor in both the lumbar and cervical conditions. It was Dr. Wengler=s opinion that the employee had a 10 percent whole body impairment as the result of his cervical condition under Minn. R. 5223.0370, subp. 4.C.(2). Dr. Wengler also indicated that the employee had a permanent partial disability for the lumbar spine of 13 percent under Minn. R. 5223.0390, subp. 4.E and E(1), for the stenosis demonstrated in the 1994 CT scan.
The employee was seen on behalf of Transx by Dr. Mark Friedland on March 23, 1998. Dr. Friedland concluded that the employee had multi-level cervical degenerative disc disease and multi-level lumbar degenerative disc disease status post right L4-5 hemilaminotomy and a discectomy. Dr. Friedland found permanent partial disability of the employee=s cervical and lumbar spine but attributed the disability to the employee=s 1980 work injury. He placed no work restrictions on the employee and concluded that the employee had not sustained a 1995 Gillette injury at Transx.
The employee returned to work on a part-time basis in August 1995. The employee has never returned to full-time work and has been working at a wage loss since his return to work. In March 1997, the employee=s contact with VRU led to the initiation of a rehabilitation plan calling for job search in the areas of semi truck driver and/or police instructor. The employee made job contacts as part of that plan, but the plan was closed in June 1997 because the initial claim petition had been dismissed.
The employee=s claim petition was heard by a compensation judge on November 8, 2001 and January 9, 2002. The employee claimed temporary total disability from April 30, 1995 to August 14, 1995; temporary partial disability from August 15, 1995 to November 1, 1998; 13 percent permanent partial disability of the whole body for the low back impairment and 10 percent permanent partial disability of the whole body for the cervical spine impairment based on the ratings of Dr. Wengler; payment of outstanding chiropractic bills and reimbursement of out-of-pocket expenses. The employee alleged that the injuries of December 1, 1987 and April 29, 1995 were both responsible for these claimed benefits. The employers and insurers disputed the employee=s claims.
In his Findings and Order issued on March 25, 2002, the compensation judge found that the employee had sustained a Gillette injury to his cervical spine and his lumbar spine at Transx on April 29, 1995, that Transx had received statutory notice of the injury, that the employee=s December 1, 1987 injury was a temporary aggravation of his pre-existing condition, that the employee was entitled to some but not all of his claim to wage loss benefits and permanent partial disability, and that intervenor DOLI/VRU was entitled to reimbursement. Transx has appealed and the employee has cross-appealed.
1. April 29, 1995, Gillette Injury
The employer, Transx, has appealed from the compensation judge=s determination that the employee sustained a Gillette injury on April 29, 1995. The employer argues that substantial evidence does not support the compensation judge=s conclusion that the employee sustained an injury at Transx.
The determination of whether a Gillette injury has occurred is a question of fact for the compensation judge. In the present case, the compensation judge was presented with voluminous medical records in a case which required two days of testimony. The compensation judge wrote a detailed decision demonstrating his consideration of the evidence. The testimony of the employee, the records from his treating doctors, and the opinions of Dr. Wengler provide substantial evidence upon which the compensation judge could base his conclusion that the employee=s work activity at Transx led to a Gillette injury affecting both the cervical and lumbar spine. Although evidence was submitted which arguably could have led to a different result, it is the compensation judge=s province to weigh the competing opinions of medical experts. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (1985).
The employer also argues that the compensation judge erred as a matter of law in finding an injury as of April 29, 1995 when the employee did not sustain a breakdown on that date. A Gillette injury is a gradual process in which the employee=s work duties ultimately result in disability to the employee. By definition, in the case of a Gillette injury, each day of work constitutes subclinical trauma to the employee. Here, where the compensation judge found the employee=s daily work at Transx to be an aggravation of his condition, it was not unreasonable to conclude that the end of his employment at Transx on April 29, 1995 was the date of the employee=s injury.
The finding that the employee sustained a Gillette injury on April 29, 1995, in the course and scope of his employment at Transx is affirmed.
2. Permanent Partial Disability
The compensation judge found the employee had sustained a 10 percent permanent partial disability of the whole body due to his cervical condition. After apportioning the disability rating from the 1980 injury, the employee was awarded 6.45 percent permanent partial disability against Transx. Transx has appealed this finding. The compensation judge also found that the employee did not sustain any permanent partial disability from the lumbar spine condition as a result of the 1995 Gillette injury. The employee has cross-appealed this finding.
The employer has appealed the award of permanent partial disability to the cervical spine primarily because the compensation judge referenced three distinct incidents as well as a Gillette injury of April 29, 1995 as leading to the employee=s permanent partial disability. The employer argues that it had no notice that claims were being presented against the referenced incidents.
This argument misreads the opinion of the compensation judge. While incidents in January 1993, October 1993, and January 1994 involving the cervical spine were well documented in the employee=s medical records, primarily in reports to the employer, there is no medical opinion which related any permanent partial disability to these incidents. The compensation judge specifically found the permanent partial disability to be due in substantial part to the 1995 Gillette injury. Accordingly, we conclude that the compensation judge did not impose any liability for permanent partial disability on the employer because of those incidents and the compensation judge=s discussion of those incidents was simply a reference to the employee=s extensive medical history.
The employee has cross-appealed the compensation judge=s denial of his claim for permanent partial disability due to the lumbar spine. The employee based his claim for permanent partial disability of the lumbar spine on the reports of Dr. Wengler in which Dr. Wengler indicated that the employee had a reherniation of a lumbar disc in the December 1, 1987 injury which led ultimately to stenosis. Dr. Wengler=s rating for the lumbar spine was based on stenosis which was demonstrated in the 1994 CT scan.
The compensation judge noted that the stenosis was demonstrated on a 1994 CT scan which predated the 1995 injury. Further, the compensation judge specifically rejected the conclusion of Dr. Wengler that the employee had a reherniation of the lumbar disc in 1987 and instead found the employee=s injury at that time to be a temporary aggravation of his pre-existing condition. The compensation judge also specifically adopted the opinion of Dr. Friedland, that the employee=s lumbar symptoms related back to the employee=s 1980 injury.
The compensation judge=s award of 6.45 percent permanent partial disability for disability to the cervical spine and his denial of permanent partial disability for disability to the lumbar spine are supported by substantial evidence and are affirmed.
3. Temporary Total/Temporary Partial Disability
The employee claimed temporary total disability from April 30, 1995 to August 14, 1995 and temporary partial disability from August 15, 1995 to November 1, 1998. The compensation judge denied the claim for temporary total disability and any claim for temporary partial disability before November 7, 1997. He awarded temporary partial disability from November 7, 1997 to November 1, 1998 with benefits to be calculated upon an average of the employee=s earnings during that period of time. The employee has cross-appealed for the denial of benefits and the employer has appealed from the award of temporary partial disability.
At the time of his lay-off from Transx, the employee was under no work restrictions other than a recommendation to have an air ride seat when he drove a truck. There was no evidence that the employee restricted his job search by reason of his injury and further, although there was conflicting evidence as to whether or not he was qualified for an over-the-road driving job with Transx, there was scant evidence that the employee was unable to perform that job. Substantial evidence supports the decision of the compensation judge that the employee was not entitled to temporary total disability.
The denial of temporary partial disability for the period August 15, 1995 to June 25, 1997 is likewise supported by substantial evidence. No work restrictions existed for the employee until May 13, 1996, when he visited his family doctor. According to his memorandum, however, the compensation judge found that the employee was under no Ameaningful@ restrictions until the evaluation of Dr. Wengler in June 1997, when restrictions were placed of a 25-pound lifting limit and no repetitive activities including bending, stooping, and heavy pushing or pulling. The compensation judge found that the restrictions placed by the employee=s family doctor were due to the lumbar spine but at that time the employee=s complaints regarding the lumbar spine were relatively benign. The compensation judge was entitled to accept the conclusions of Dr. Wengler on the employee=s ability to work. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (1985). Substantial evidence supports the compensation judge=s denial of temporary partial disability during the period August 15, 1995 through June 25, 1997.
The denial of temporary partial disability after June 26, 1997 is more problematic. As pointed out by the employee in his brief, the elements of temporary partial disability required by Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976), were met by June 26, 1997. The employee had sustained a work-related injury resulting in disability; the employee had a work loss of earning capacity causally related to the work-related disability; the employee was able to work subject to the disability; there was an actual loss of earning capacity.
The compensation judge denied the employee=s claim for temporary partial disability between June 26, 1997 and November 7, 1997 because the employer was not aware during that time that the employee would be asserting a claim for temporary partial disability. The compensation judge, in his memorandum, referred to the fact that it would be Asimply unfair@ to impose liability on the employer in that situation. Fairness aside, however, there is simply no legal authority for the proposition that an employer is not liable for workers= compensation benefits if they were not aware that a claim might be pending. On this point the compensation judge is reversed and the employee is awarded temporary partial disability benefits from June 26, 1997 through November 7, 1997.
The employer has appealed the award of temporary partial disability benefits from November 8, 1997 through November 1, 1998. The employer argues that the employee is precluded from an award of temporary partial disability because the employee rejected suitable employment with Transx after the layoff in April 1995. There is no evidence that Transx ever offered any employment to the employee after the layoff. The evidence on this point presented by the employer was that of Larry Jones, a trailer mechanic, who provided his opinion that the employee would have been eligible for an over-the-road route. Further, there is no evidence that this position was available by June 1997 when Doctor Wengler provided work restrictions. In this situation, the employee is not precluded from the receipt of temporary partial disability.
The employer also appeals the compensation judge=s award of temporary partial disability benefits calculated on an imputed wage and not on the actual post-injury earnings of the employee.
The employee has worked a number of jobs since August 1995. In determining the amount of temporary partial disability benefits the compensation judge added the earnings of all of the employers together and then averaged the earnings out by the number of weeks in the relevant time period to arrive at average earnings post injury. As the employer points out this method results in the employee receiving temporary partial disability for weeks when he did not work at all. Further, it results in a lower weekly wage overall because of the inclusion of weeks where no employment was performed. Where wage records are missing or difficult to understand, averaging earnings over a period of time may be an appropriate method to calculate temporary partial disability benefits. However, such is not the case here, where weekly earnings are available from the employee=s wage records. Erdrich v. Ford Motor Co., 49 W.C.D. 528 (W.C.C.A. 1993). The compensation judge=s determination of the computation of temporary partial disability is reversed and benefits are payable based on the difference between the employee=s average weekly wage on the date of injury and the employee=s wages from employment for the weeks actually worked.
The compensation judge=s denial of temporary total disability benefits is affirmed. The compensation judge=s denial of temporary partial disability benefits for the period August 15, 1995 through June 25, 1997 is affirmed. The compensation judge=s denial of temporary partial disability benefits from June 26, 1997 through November 6, 1997 is reversed. The compensation judge=s award of temporary partial disability benefits from November 7, 1997 to November 1, 1998 is affirmed. The compensation judge=s computation of temporary partial disability benefits owed is reversed.
4. Medical Expenses
The employee claimed reimbursement for medical expenses he has incurred. The compensation judge awarded reimbursement of some of those expenses. The employer appeals this determination, noting that at least one of the expenses pre-dated the April 29, 1995 injury. The order of the compensation judge reimbursing the employee for out-of-pocket expenses is modified and reimbursement is ordered for those expenses which arose after April 29, 1995.
5. Rehabilitation Benefits
The Department of Vocational Rehabilitation intervened and claimed reimbursement in the amount of $1,198.22 for reimbursement of vocational assistance provided to the employee during the period April 9, 1996 through June 6, 1997. The employer argues that since the compensation judge found the employee had no work restrictions which would entitle him to temporary total disability or temporary partial disability benefits, the employee would not be eligible for rehabilitation services and accordingly, reimbursement to VRU would not be appropriate. We agree.
A qualified employee for the purposes of receiving rehabilitation assistance is defined as one who is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation. Minn. R. 5220.0100, subp. 22. The compensation judge found that, during the time the employee received assistance from VRU, the employee Ahas failed to prove by a preponderance of the evidence that he was under limitations or restrictions during that period of time such as would limit his ability to perform gainful employment.@ (Finding 36.) In his memorandum, the compensation judge noted his conclusion that the employee was under no Ameaningful@ restrictions until his evaluation by Dr. Wengler in June 1997. AAny claim before that time is without medical limitations or restrictions.@ Given these conclusions, the employee would not be eligible for rehabilitation services before June 1997. Sebion v. ADM Malting Div., slip op. (W.C.C.A. Feb. 12, 1997).
Since the employer was not eligible for rehabilitation services at the time those services were provided by VRU, there is no basis for an award reimbursing VRU for the services. The award of reimbursement to VRU as set forth in Order 3 is reversed.