DENNIS E. WEGENER, Employee, v. LTV STEEL MINING CO. and AMERICAN INT=L GROUP/SEDGWICK CLAIMS MANAGEMENT, Employer-Insurer/Appellants, and MN DEP=T OF ECONOMIC SEC., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 6, 2002
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical records of the employee=s treating doctor, supported the compensation judge=s finding that the employee was temporarily totally disabled from May 15, 2001, through August 13, 2001.
REHABILITATION - ELIGIBILITY. Substantial evidence supported the compensation judge=s award of rehabilitation services where the employee=s treating doctor imposed restrictions which would preclude the employee from returning to his previous employment.
Determined by Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: Peggy A. Brenden.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the decision of the compensation judge awarding temporary total disability benefits and rehabilitation services to the employee. We affirm.
Dennis Wegener, the employee, was born on June 8, 1943. In 1988, he began working for the employer, LTV Steel Mining Company. After a short time at the company, he became a linerman or maintenance technician.
As a linerman, his job was to change the liners in various mills and chutes in the plant. The liners are made of steel, held in place with bolts, and weigh up to several hundred pounds. The employee described his employment as heavy work with pushing, pulling and lifting to fit the liners into place and to align the bolt holes. On December 8, 2000, the employee was pulling on a liner to straighten it out so it could be picked up by a machine. As he was pulling, he sustained a personal injury identified as an incisional hernia. Liability for the injury was accepted by the employer and workers= compensation benefits were paid to the employee.
On January 19, 1984, the employee had surgery to remove his gall bladder. After recuperation, he returned to his usual activities without restrictions. In 1994, the employee sustained an umbilical hernia which was related to his employment. Surgical repair of the hernia was performed on March 7, 1994, by Dr. Theodore P. Kubista of the Duluth Clinic. The employee testified that, although he was released to work without restrictions, he tried to avoid doing some of the work which had led to his hernia. The employee continued to work as a linerman after his hernia repair.
After recovery from his 1994 surgery, the employee next saw Dr. Kubista on December 15, 2000. Dr. Kubista found a ventral incisional hernia at the site of the cholecystectomy incision. The doctor identified the hernia as work-related based on the employee=s history of the onset of symptoms while positioning a steel liner. Dr. Kubista recommended surgical repair of the hernia. In this initial visit, Dr. Kubista also noted that the plant where the employee worked would be closed by the time the employee was able to go to work.
The employee had his hernia repair surgery on January 2, 2001. Dr. Kubista found three additional smaller hernias adjacent to the main hernia he had identified earlier. Dr. Kubista repaired the hernia sites with mesh. The employee returned to see Dr. Kubista on January 31, 2001. Dr. Kubista found the employee was Ahealing nicely@ from the surgery. The doctor also commented that the plant where the employee had worked was closed, the employee=s job was abolished, and the employee had consulted with an attorney. In considering restrictions on the employee=s return to work, the doctor commented that, A[r]egarding doing any heavy lifting, I told the patient that I would think that until about March 2nd he should not try to do any lifting whatsoever, and even at that point in time, with his history of developing so many hernias, it probably would not be in his best interest to return to the type of manual labor where he would do heavy lifting.@ Dr. Kubista also completed a work ability report on that date which kept the employee off work until April 3, 2001, limited the employee to light work with no lifting over 20 pounds on that date, and stated that AIdeally patient should not go back to a job of heavy manual labor as he has had 5 abdominal wall hernias.@
Dr. Kubista saw the employee again on February 23, 2001. After noting the employee=s progress, the doctor stated:
This is the second time this patient has had an abdominal wall hernia and it has been related to heavy lifting, and this one particularly has been documented as occurring on the job so it is a Workman=s Comp. type case. Ideally it would be best if this patient went back to a job where he is not required to do heavy manual labor, but he may not have a choice, as that has been his training and he does not have any other training to do things such as management or secretarial type work or sales work, etc. As far as his disability goes, I think since his job is heavy manual labor I think it would not be in the patient=s best interest to send him back to work too early as far as doing heavy manual labor, as he might tear out the mesh and then get a recurrent hernia.
The work ability report prepared on that date kept the employee from work until April 3, 2001, placed restrictions of light work on him for that date and stated that AIdeally if possible it would be in the patient=s best interest if he did not have a job that required heavy manual labor.@
The employee saw Dr. Kubista again on March 13, 2001, accompanied by his QRC, Dana Butler. Dr. Kubista discussed return-to-work issues with the employee and noted, as he had previously, that because the plant had closed, the employee did not have a job to return to. Dr. Kubista then met with the QRC who asked the doctor to identify restrictions which would have to be followed if the employee did have a job. In response, Dr. Kubista indicated, AWe are going to put down light work. Going back to medium work, lifting up to 50 lb and frequent lifting of objects at 25 lb would put too much stress on this abdominal wall and would probably lead to further hernias.@ The work ability report prepared on that date was consistent with the chart notes.
The employer filed an NOID, seeking to discontinue temporary total disability benefits as of May 15, 2001, on the grounds that the employee had been released to return to work with no restrictions from his work injury. The NOID was based in substantial part on the IME report of Dr. Sheldon Segal dated April 24, 2001. Dr. Segal=s opinion was that no work restrictions would be required for the employee. The NOID was granted and the employee filed an objection to discontinuance.
This matter came on for hearing before Compensation Judge Peggy Brenden on October 9, 2001. The employee presented the records of Dr. Kubista. The employer introduced additional records of the employee=s treatment, the April 24, 2001 report of Dr. Segal and a supplemental report from Dr. Segal of October 23, 2001, in which he restated his opinion that no restrictions were necessary in the employee=s work duties. The employee was the only witness at the hearing. He testified that he continued to have symptoms from the hernias and specifically that with lifting Asometimes it does bite and pull and it hurts.@ As an example, he cited his unwillingness to lift his seven-year old son.
The compensation judge=s decision was served and filed November 16, 2001. She found the employee had restrictions in lifting due to the December 8, 2000 injury which precluded the employee from returning to his usual employment. She awarded temporary total disability benefits from May 15, 2001, through August 13, 2001. The employee was also found to be entitled to ongoing rehabilitation assistance. The employer and insurer appeal.
The employer has appealed both the award of temporary total disability benefits and of rehabilitation services. With regard to both awards, the employer argues that the judge=s findings are erroneous and not supported by substantial evidence in that the restrictions placed on the employee by Dr. Kubista are not needed due to functional limitations but only because of the Aremote@ possibility of a recurrence in the future. The employer focuses on the use by Dr. Kubista of the word Aideally@ and suggests that the restrictions Dr. Kubista placed are not medically necessary. The employer also contends that Dr. Kubista=s repeated references to the plant closing would indicate that the doctor=s real motivation for the restrictions was a concern about the effects of a mass layoff on the employee=s prospects for returning to work.
In the work ability reports which he completed on January 31, February 23, and March 13, 2001, Dr. Kubista consistently stated that the employee could return to work after April 3, 2001, but only to light work, defined on the work ability form as employment with lifting of 20 pounds maximum. In his chart note of March 13, Dr. Kubista specifically stated that the need for restrictions was because heavier lifting would put too much stress on the abdominal wall and would probably lead to further hernias. Avoidance of further injury is a major purpose of imposing work restrictions. Dr. Kubista=s opinion was supported by the testimony of the employee of increased symptoms with lifting. Speculation as to the doctor=s motivation does not negate the plain language of his records. In this case, Dr. Kubista, as treating doctor, had sufficient foundation and competence to render an expert opinion on the employee=s work restrictions. Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).
The argument advanced by the employer is based on the opinion of Dr. Segal who stated that any restrictions would be due to the employee=s physique rather than the work injury. It is for the compensation judge to consider competing expert opinions and the judge=s acceptance of an opinion is to be affirmed. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Substantial evidence supports the finding of the compensation judge that the employee has restrictions which preclude him from returning to his usual employment. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). The employer raises no other argument against the award of temporary total disability benefits or rehabilitation services. The decision of the compensation judge is affirmed.