JULIA CICI, Employee/Appellant, v. METHODIST HOSP., SELF-INSURED, Employer, and MN DEP=T OF ECONOMIC SEC., and MN DEP=T OF LABOR AND INDUS./VRU, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 27, 2003
EVIDENCE - EXCLUSION. Where the compensation judge had informed the employee=s attorney that a computer disc would not be accepted into evidence at a pre-trial conference, the compensation judge did not abuse her discretion by not allowing the computer disc into evidence at the hearing.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee was not totally disabled for the entire three month period after July 2, 2001.
JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert vocational opinion and lack of documentation in the record of the employee=s job search, supports the compensation judge=s finding that the employee did not conduct a diligent job search during the period of time she claimed temporary total disability benefits.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Catherine A. Dallner
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s denial of a period of temporary total disability benefits and the compensation judge=s refusal to admit into evidence a computer disc which allegedly contained the employee=s job search log. We affirm.
On June 18, 1990, Julia Cici, the employee, sustained an admitted low back injury while working as a computer technician for Methodist Hospital, the self-insured employer. She was diagnosed with a L4-5 herniated disc, and underwent two surgeries following her injury. In 1993, the employee underwent a bilateral total hip replacement for a condition not at issue here. By August 16, 1994, Dr. Michael Bromer concluded that the employee had reached maximum medical improvement from her work-related injury; that report was served on the employee on August 26, 1994.
In 1995, the employee underwent an ulnar nerve release surgery, for a condition not at issue here. The employee received Social Security disability income from 1995 through 1997. In 1997, the employee was able to return to work for different employers, in the computer and technical support field. She testified that she continued to have flare-ups of her low back condition, which were managed with epidural injections and physical therapy. She obtained periodic treatment at Noran Neurological Clinic, due to ongoing symptoms and, by 2000 and 2001, experienced increased symptoms in her low back.
In March 2001, the employee was laid off from her employment. Her condition worsened, with increasing pain, numbness down both legs and weakness in her right leg. The employee consulted Dr. Fred Lux at the Noran Neurological Clinic on July 2, 2001, for severe low back pain. She used a cane due to difficulty bearing weight on both legs. Dr. Lux ordered an MRI scan, to rule out cauda equina syndrome, and recommended that the MRI scan be performed on an expedited basis. However, the employee delayed scheduling the MRI scan while taking a previously-planned five-day vacation trip. The MRI scan, taken on July 17, 2001, indicated a moderately large recurrent right posterior disc herniation at L4-5 and degenerative disc disease at L5-S1. Dr. Lux re-examined the employee on July 23, 2001, and, based on the results of the MRI scan, restricted the employee from work pending a surgical consultation. Dr. Edward Hames, the neurosurgeon who performed her earlier surgeries, examined the employee on August 2, 2001. Dr. Hames diagnosed severe degenerative disc disease at L4-5 and L5-S1, and recommended against additional surgery. He expressed concern that further surgery at the L4-5 level would require a fusion, which he did not recommend in view of the employee=s weight level and smoking history. Instead, he recommended weight loss to create less stress on her lumbar spine. He made no comment on the employee=s ability to work or work restrictions.
On March 6, 2002, Dr. Lux issued a narrative report indicating that the employee had been disabled for three months following his examination on July 2, 2001. He noted that his request for an additional surgical opinion from Dr. Dyste, neurosurgeon, had been denied by the insurance administrator. On April 2, 2002, the employee underwent an examination with Dr. Daniel Randa at the employer=s request. Dr. Randa opined that the employee did not require additional surgery, and that she had not been totally disabled after March 15, 2001. He concluded that her current symptoms were long-standing since 1990, that her work in a computer technical support capacity was non-physical, and that he found no indication in her medical history examination or records that she was temporarily totally or temporarily partially disabled from employment. He further concluded that the employee had reached maximum medical improvement with respect to her lumbar spine disorder.
The employee testified that while she was off work, she conducted a job search within her restrictions, which include no lifting over ten pounds, no squatting, climbing or crouching, limited bending and stooping, infrequent kneeling, no repeated use of the feet, and no pushing or pulling over ten pounds. The employee testified that she kept a computerized documentation of her job search logs on a computer disc, and was unable to print out the contents of this disc on her home computer printer, apparently due to the poor condition of her printer. The employee=s attorney had a noncompatible computer, and therefore was unable to print the contents of the disc.
On April 23, 2002, Jan Lowe, who had evaluated the employee in 1995, conducted a vocational evaluation of the employee on behalf of the insurer. In view of the employee=s demonstrated employability and her physical capacities, Ms. Lowe concluded that the employee continued to be employable in the computer industry where she recently had held regular employment. Ms. Lowe identified specific job areas and postings from Park Nicollet that matched the employee=s vocational and physical qualifications, and prepared a labor market survey to show examples of job openings which had been available in the employee=s labor market. Ms. Lowe reviewed a portion of the information contained on the employee=s computer disc, but, as found by the compensation judge, Awas not able to ascertain the names of any employers to which resumes were submitted or the dates on which resumes were submitted to prospective employers or the time spent on any given day on job search.@
At a pre-trial conference held on May 13, 2002, the compensation judge informed the employee=s attorney that she would not accept the computer disc into evidence. The compensation judge was uncertain whether the disc was compatible with the court=s computer to allow for complete retrieval of the job search contained information on the disc.
A hearing was held on June 13, 2002, to address the employee=s claims for a surgical consultation, rehabilitation assistance, and temporary total disability benefits between March 15, 2001 and December 13, 2001, a nine-month period of time between her layoff and re-employment. Evidence submitted at the hearing included rehabilitation records generated by Joan Murray, a qualified rehabilitation consultant (QRC); medical records documenting treatment since the June 18, 1990, injury; a report and deposition by Dr. Daniel Randa; a report, labor market survey and deposition by Ms. Jan Lowe, vocational examiner; and records submitted by the employer listing job postings at Park Nicollet between late December 2000 and approximately February 2002. The computer disc was not accepted into evidence.
In findings and order served and filed on August 12, 2002, the compensation judge found that the employee was entitled to a second surgical opinion from Dr. Dyste; the employer did not appeal this finding. She awarded payment of temporary total disability benefits between July 23 and August 2, 2001, but denied benefits for the claimed periods of time before and after those dates. The compensation judge based her denial on her findings that the employee had not performed a reasonably diligent job search from March 15, 2001, through July 22, 2001, or from August 3, 2001, through December 13, 2001, and that the employee was not disabled from working during the same time periods. The employee appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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. Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
The employee argues that the compensation judge erred by refusing to admit a computer disc, a CD-Rom (CD), which allegedly contained the employee=s job search log, into evidence. The compensation judge stated in her findings that she Ahad advised the employee=s attorney at the pretrial conference on May 13, 2002[,] that she would not accept this computer disc into evidence.@ The employee argues that the compensation judge should have admitted the CD into evidence since it contained information on the employee=s job search. While neither the employee nor the employee=s attorney apparently could print out the contents of the CD with computer equipment available to them, there was no explanation for their decision to not independently seek other means to print out the relevant information, or at least a portion of it. The employer=s vocational expert, Jan Lowe, reviewed a portion of the disc, but could not determine information relevant to the adequacy of the employee=s job search. Ms. Lowe could not find any organized information regarding the employee=s job search on the CD.
The employee also argues that the employer=s attorney had agreed to print out the contents of the CD, but that approximately 2-3 weeks before hearing, a staff member at the law firm representing the employer advised the employee=s attorney that the contents of the CD were so extensive that they were unable to print out the information. In rebuttal, the employer indicates that the employee=s attorney was told, in advance of the hearing, that the contents would not be printed. We conclude that the employee=s attorney was responsible for preparing the employee=s exhibits. The employee could have prepared an alternate exhibit or testified more extensively about her job search. Instead, she stated that there were over a thousand job applications contained on the disc, but only provided specific information regarding the location or title of one job. Further, we note that a compensation judge is not bound by the common law or statutory rules of evidence, and that evidentiary rulings are within the sound discretion of the compensation judge. Minn. Stat. ' 176.411, subd. 1; Minn. R. 1415.2900, subp. 6.A.; Bey v. Oxford Properties, Inc., 481 N.W.2d 40, 42, 46 W.C.D. 198, 201 (Minn. 1992). The compensation judge=s ruling is well within the wide discretion granted to compensation judges and will not be reversed by this court. The compensation judge did not err by refusing to accept the computer disc into evidence where the evidence was not in a form which the compensation judge could read or consider.
Temporary Total Disability
The employer also argues that the compensation judge erred by denying the employee=s claim for temporary total disability for three months after July 2, 2001. The compensation judge found that the employee was medically disabled from continuing to work as contemplated by Minn. Stat. ' 176.101, subd. 3j, from July 23, 2001, the date Dr. Lux restricted the employee from work, through August 2, 2001, the date she consulted Dr. Hames, but denied her claims for temporary total disability before and after that period.
The employee argues that, at a minimum, she was disabled from employment for three months following her July 2, 2001, examination by Dr. Lux. She obtained follow-up treatment from Dr. Lux in July and August, reporting significant pain and paresthesias. She contends that she accepted her doctor=s recommendations concerning restrictions from work, and ultimately returned to work in December 2001. The employee argues that no other contemporaneous medical record exists to refute Dr. Lux=s opinion that she was disabled for three months. We are not persuaded.
In order to be eligible for temporary benefits, an employee must establish a reduction in earning capacity which is causally related to the work injury. Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 34 (Minn. 1981). "[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income," Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967), and an employee has the burden of establishing a diminution in earning capacity that is causally related to her disability. Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988). Whether the employee=s inability to obtain full-time employment is a result of a personal injury is generally a question of fact for the compensation judge, and any relevant evidence may be considered, including the nature and extent of the employee=s job search. Stauty v. Luigino=s Inc., slip op. (W.C.C.A. Dec. 19, 1994).
The compensation judge noted that A>[n]one of the employee=s treating or examining physicians contemporaneously totally disabled her from working@ between March 15 through July 22, 2001, and from August 3 through December 13, 2001. She also noted that the employee was able to travel via airplane for a vacation in early July 2001, and that although Dr. Lux recommended that she undergo an MRI scan of her lumbar spine on July 2, on an expedited basis to rule out potential cauda equina syndrome, she delayed obtaining an MRI scan in order to go on her planned vacation. Although Dr. Lux later determined that the employee had been disabled from employment for three months after his examination on July 2, 2001, Dr. Randa opined that the employee was not totally disabled during that time. It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Substantial evidence supports the compensation judge=s finding that the employee was not totally disabled for the entire three-month period after July 2, 2001.
The evidence also supports compensation judge=s conclusion that the employee did not perform a reasonably diligent search for employment within her restrictions after her layoff in March 2001. At Finding No. 9, the compensation judge stated, in part, that
The employee did not provide any documentary evidence regarding her job search. The employee=s testimony at the hearing included only one reference to a specific employer and a specific jobBthe one job at Park Nicollet Medical Center for which she applied during 2002 after her claimed period of temporary total disability. The employee did not provide any testimony or other evidence regarding her job search such as the names of employers to which she submitted applications or with which she had interviews, the dates of any applications and/or interviews, the follow up with any prospective employers such as via telephone, or any other details regarding employers actually contacted for job seeking during the period of claimed temporary total disability.
In her memorandum, the compensation judge also outlined her reliance on Ms. Lowe=s conclusions concerning the employee=s vocational ability and job search. She further stated that the employee Ais an intelligent and well-educated individual with extensive experience and expertise in the field of information technology. She has demonstrated an excellent ability to find jobs within her physical restrictions and capabilities in her chosen field as shown by the numerous jobs that she has landed during the past ten years.@ Based on the evidence of record as a whole, including the lack of documentation of a job search between March 15 and December 13, 2001, the compensation judge reasonably concluded that the employee had not conducted a diligent job search during that period of time. Accordingly, we affirm the denial of temporary total disability benefits.
 On October 25, 1990, the employee underwent a right L4-5 hemilaminotomy, right L4-5 partial facetectomy, right L5 foraminotomy and right L4-5 microdiscectomy. On January 6, 1992, she underwent a L5 through L6 complete laminectormy with a right L5-6 repeat lumbar microdiscectomy.
 In her notice of appeal, the employee appeals from the compensation judge=s denial of temporary total disability benefits spanning a nine-month period between March 15 and July 22, 2001, and from August 3 through December 13, 2001. However, in her brief the employee specifically addresses the three-month period following Dr. Lux=s July 2, 2001, examination. We therefore have limited our discussion to that three-month period of time. Pursuant to Min. R. 9800.0900, subp. 1, A[i]ssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@