JORGE CAMACHO, Employee, v. LUNDA CONSTR. CO., SELF-INSURED, adm'd by ST. PAUL FIRE & MARINE INS. CO., Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 24, 2003
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s denial of the self-insured employer=s petition to discontinue benefits based on the judge=s findings that the employee had not yet fully recovered from his work injuries, had continuing restrictions secondary to his personal injuries and the job offered by the employer to the employee exceeded those restrictions.
Determined by Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Jennifer Patterson.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals from the compensation judge=s denial of its petition to discontinue workers= compensation benefits. We affirm.
Jorge Camacho, the employee, was born in Mexico in 1967 and moved to the United States in 1987 or 1988. In 1988, the employee fell three stories, landed on his feet and sustained a burst fracture of the L4 vertebra. The fracture was treated with a surgical fusion of the L3, L4 and L5 vertebral bodies, with insertion of Harrington instrumentation. In May 1989, the Harrington rods were removed because the employee had a solid fusion mass from L3 to L5. The employee was able to work at laboring jobs for about twelve years following his surgery.
On July 17, 2001, the employee sustained a personal injury while working for Lunda Construction Company, then self-insured for workers= compensation liability with claims administered by St. Paul Fire and Marine Insurance Company. The employee, wearing a hard hat, was coming out from under a bridge when a piece of plywood fell eight to ten feet and hit him on the top of the head. The employee first sought medical attention on August 1, 2001, at Minnesota Occupational Health. Dr. Austin Indritz recorded that information was obtained from the employee through an interpreter. The employee complained of discomfort in his neck, mid and low back but denied any numbness or weakness in his arms or legs. Dr. Indritz diagnosed a cervical and lumbar contusion, prescribed anti-inflammatory medication and allowed the employee to return to work subject to restrictions. On August 10, 2001, Dr. Indritz diagnosed a cervical and lumbar strain and ordered physical therapy and continued work restrictions.
Dr. James Anderson saw the employee on August 30, 2001, and diagnosed a cervical strain with right-sided symptoms and resolved lumbar strain. The doctor continued anti-inflammatory medication, physical therapy and work restrictions. An MRI scan in September showed dorsal tears, minimal disc bulging at C4-5 and C6-7 and a dorsal tear without bulging at C7-T1. The scan showed no disc herniations or neural compressions. Dr. Anderson diagnosed cervical spine strain-inflammation with right-sided symptoms, and again allowed the employee to work subject to restrictions.
Dr. Anderson referred the employee to Minnesota Spine Rehabilitation where he was seen by Dr. Sherief A. Mikhail on October 15, 2001. The doctor diagnosed chronic neck pain and referred the employee to MedX Rehabilitation. Dr. Mikhail reexamined the employee on November 15, 2001, and noted he had made good progress since beginning rehabilitation. His diagnosis was nonspecific cervical spine pain and deconditioning syndrome. Dr. Mikhail opined the employee was not yet at maximum medical improvement and continued the rehabilitation program. The employee continued in the MedX program through January 3, 2002.
On January 7, 2002, the employee sustained a personal injury to his low back when he slipped on snow-covered ground while carrying metal rods. The employee that day returned to see Dr. Mikhail complaining of low back pain with radiation into both thighs. On examination, the doctor found muscle spasm and restricted range of motion. The doctor diagnosed nonspecific cervical and low back pain with an acute flare-up, took the employee off work and prescribed electrical muscle stimulation. On January 10, 2002, Dr. Mikhail found significant lumbar muscle spasm, positive straight leg raising and an antalgic gait. The doctor diagnosed probable lumbar radiculopathy. The doctor then ordered MRI and CT scans which showed the L3-4 and L4-5 fusions were solid without stenosis but showed a pseudoarthrosis bilaterally at L5-S1 without a solid fusion and mild to moderate central stenosis. Dr. Mikhail referred the employee to Dr. Margaret Wallenfriedman, a neurosurgeon, whom the employee saw on January 23, 2002, and again on February 12, 2002. On examination, the doctor noted the employee was missing patellar reflex on the left, had decreased sensation in the lateral aspect of the left foot and had tenderness in the lumbar paraspinous muscles. Dr. Wallenfriedman opined the employee would need a fusion from L5 to S1 for the pseudoarthrosis. The doctor then ordered a bone scan, which showed facet arthropathy, hypertrophy and degenerative changes at L2-3 and mildly increased activity at L5-S1 on the left. Dr. Wallenfriedman opined the employee had a pseudoarthrosis at L5-S1 and areas of remarkable inflammation at L2-3. The doctor stated both of these levels would need to be fused with instrumentation. The employee was, however, reluctant to undergo surgery and, on March 3, 2002, the doctor prescribed a TLSO brace with a right leg extension.
In April 2002, Dr. John Dowdle examined the employee at the request of the self-insured employer. The doctor diagnosed a prior L4 fracture and fusion, a pseudoarthrosis at L5-S1, subjective complaints in excess of objective findings and significant magnification of subjective complaints. On examination, the doctor=s only objective finding was a decreased range of motion. The doctor opined the July 17, 2001 injury caused a temporary aggravation of his pre-existing cervical condition that had resolved within a week or two. Dr. Dowdle opined the employee then had a second aggravation in January 2002, that he anticipated would resolve within the next three months. Dr. Dowdle found the employee was then capable of working and assigned restrictions, but stated those were due to the employee=s underlying condition and not his personal injuries.
The employee returned to work for the employer on June 18, 2002, but left the job site and went home, claiming he was physically unable to perform the job. That day, the employee was videotaped while performing various tasks in his yard. The videotape shows the employee performing repetitive bending, kneeling and squatting while gardening, raking leaves and placing leaves in a trash bag. The employee was videotaped again on June 22 performing many of the same activities he did on June 18.
The employee returned to see Dr. Wallenfriedman on July 30, 2002. The employee reported he had been wearing the TLSO brace for four months but still had a significant amount of back pain with any kind of activity. On examination, the doctor found tenderness in the upper lumbar spine to deep palpation and diminished sensation to pinprick in both feet and the right toe. Dr. Wallenfriedman diagnosed a pseudoarthrosis at L5 bilaterally, mild central stenosis at L2-3 and L4-5, and an L2-3 level that showed intense activity on a bone scan with facet arthropathy, hypertrophy and degenerative changes. The doctor related the employee=s low back problems to his personal injury and recommended a discogram be obtained prior to proceeding to fusion surgery. Dr. Wallenfriedman opined the employee could return to light duty work.
The deposition of Dr. Dowdle was taken on September 16, 2002. Prior thereto, the doctor reviewed the surveillance videotape of the employee. During his examination of the employee, Dr. Dowdle stated the employee demonstrated minimal spinal motion, including a 90 percent loss in rotation and side bending. Dr. Dowdle testified that in his examination of the employee he found multiple Waddell signs, including a compression test, a rotation distraction test and hypersensitivity. The doctor testified a Waddell sign is a finding on examination that is inconsistent with, and indicates a psychogenic cause for, the condition rather than a physical cause. Dr. Dowdle testified the activities of the employee as reflected on the videotape were inconsistent with his observations of the employee during his examination. The doctor opined the employee did not sustain any permanent injury as a consequence of either the July 2001 or January 2002 injuries, and the employee had no need for work restrictions as a result of his injuries. The doctor opined the employee was likely malingering in his presentation of his condition and reports of pain.
The self-insured employer filed a petition to discontinue the employee=s workers= compensation benefits, which was heard on September 20, 2002, by a compensation judge at the Office of Administrative Hearings. In a Findings and Order filed November 1, 2002, the compensation judge found the employee was not fabricating symptoms for the purpose of financial gain. The judge further determined the employee had ongoing restrictions due to his low back condition and had not recovered from the effects of his injuries by June 18, 2002. Accordingly, the judge denied the request to discontinue benefits. The self-insured employer appeals.
The self-insured employer asserts the surveillance videotape shows the employee moving in an unrestricted fashion, performing tasks which required repetitive bending, stooping and squatting. The videotape is, the appellant contends, consistent with Dr. Dowdle=s observation of multiple positive Waddell signs and his opinion that the employee was likely malingering and needed no work restrictions as a result of his personal injury. The appellant argues the videotape establishes, as confirmed by Dr. Dowdle, that the employee had fully recovered from his work injuries by the date of the surveillance. Accordingly, the appellant contends substantial evidence does not support the compensation judge=s findings and they must be reversed. We are not persuaded.
Since his July 2001 personal injury, the employee has been prescribed medication, including anti-inflammatories and muscle relaxants such as Flexeril and Neurontin. On June 18, 2002, the first day of the surveillance, the employee testified he took a double dose of medication, rested for an hour and a half and then went to work in his yard. He stated he would work for half an hour, then rest for half an hour. He testified he worked intermittently rather than continually and while doing so he supported himself with his arm on his thigh or by getting down on his hands and knees. The employee and Dr. Dowdle both stated the employee=s TLSO brace with a leg extension restricted motion in one leg and caused the employee to limp when he was wearing the brace with the leg extension. The employee testified he was not wearing the brace when he was working in his yard.
With respect to the videotape, the compensation judge found:
The videotape shows the employee=s activities on June 18, 2002 intermittently between 3:07 and 3:40, for about 10 minutes when no time is on the tape (due to one of the investigator=s not turning on the date and time on the camera), and again intermittently between 5:26 and 5:53 p.m. The employee testified that he worked in his yard pulling weeds and raking up leaves and plant debris with a small tool off and on, with intervals when he went into the house to lay down and rest. The intermittent activities shown on the tapes in the condensed version support the employee=s testimony that he worked in the yard off and on between 3 o=clock and 6 o=clock. Both investigators testified that they tried to videotape the employee whenever he was in their visual field except when someone from the neighborhood was standing so close to the surveillance car that the camera would have been visible, a small part of the time they were there. The testimony of the investigator supports the conclusion that between 3 and 6 p.m. the employee was videotaped for essentially all of the time that he was visible outside and in his yard. The videotape shows the employee walking without a limp, bending and squatting, and reaching to the ground to pull up weeds or to use a small hand tool. While bending, the employee stood with his legs far apart, supporting the weight of his upper body with his left arm on his left thigh while he reached to the ground with his right hand. The employee was able to move up and down fluidly. At times, he worked on his hands and knees or cross-legged. He also moved one or two small, clear plastic bags of weeds that appeared to be very light because the employee held the bags with one hand at arm=s length swinging them back and forth. The video also shows the employee taking smoke breaks and using a garden hose. On June 22, the employee was videotaped between 1:22 and 1:27 p.m. bending to use a small hand tool to scrape at the ground under plants.
It is apparent from the compensation judge=s thorough and detailed factual findings that the judge carefully reviewed the surveillance videotapes and the testimony of Dr. Dowdle. We have also carefully reviewed the videotapes and acknowledge there is merit to the appellant=s contention that the employee=s physical abilities as shown on the tapes belie the contention that he is disabled. That being said, however, neither the videotapes nor Dr. Dowdle=s testimony mandate a reversal of the compensation judge=s findings. Ultimately, this case involves the credibility of the employee=s testimony and a choice between conflicting expert opinions. The compensation judge accepted the employee=s testimony regarding his activities shown on the videotape. The judge further found Dr. Mikhail specifically tested for Waddell signs on January 10, 15, 21 and 28 and found them to be negative. The compensation judge concluded the employee had continuing restrictions secondary to his personal injuries, and the job the employer offered the employee in June 2002 exceeded those restrictions. The testimony of the employee, together with the medical records of Drs. Mikhail and Wallenfriedman, support the compensation judge=s findings. The compensation judge=s findings must, therefore, be affirmed.
 A TLSO is a thoracolumbosacral orthosis, a spinal orthosis which goes over the lumbar, sacral and thoracic regions and limits movement of the thorax. Dorland=s Illustrated Medical Dictionary,1281 (29th ed. 2000).