KATHRYN J. MAUS, Employee, v. REM MINNESOTA and AMER. HOME ASSURANCE/AIG CLAIM SERVS, INC., Employer-Insurer/Appellant, and BLUE CROSS/BLUE SHIELD AND BLUE PLUS OF MN., Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
NOVEMBER 24, 2003
TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM THE LABOR MARKET. Where the employee left her job with the pre-injury employer because of assaults she sustained on the job, where the employee was not able to work at a subsequent employer because of the effects of her work injury and where the employee’s attempt at self-employment was approved by the QRC, substantial evidence supports the decision of the compensation judge that the employee had not withdrawn from the labor market.
TEMPORARY TOTAL DISABILITY - REHABILITATION COOPERATION, STATUTES CONSTRUED - MINN. STAT. § 176.101, SUBD. 1(g). Where the employee cooperated with the QRC and rehabilitation efforts, it was not error for the compensation judge to award temporary total disability compensation.
MAXIMUM MEDICAL IMPROVEMENT. Where there was no opinion that the employee had reached MMI from her work related post-traumatic stress disorder, substantial evidence supports the decision of the compensation judge that the employee had not reached MMI.
Determined by Pederson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Nicole B. Surges, Timothy M. O’Keefe, Erstad & Riemer, Minneapolis, MN, for the Appellants. DeAnna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s findings that the employee did not withdraw from the labor market, that she conducted a reasonably diligent job search, and that she had not yet reached MMI from all conditions, as well as from the consequent award of temporary total disability benefits and of attorney fees. We affirm.
The employer, REM Central Lakes, maintains group home facilities for disabled adults. The employee, Kathryn Maus, began working for the employer on October 15, 2001, and within a few months became a co-lead coordinator, with responsibilities including assisting in running the employer’s Vinland group home as well as taking residents shopping, to meetings, and to medical appointments.
Among the residents of the Vinland facility was a woman who had a history of physically assaulting group home staff. According to the employee’s testimony, this resident first physically assaulted her on February 4, 2002, when the employee was helping her prepare her breakfast.
The employee was already treating with Dr. Kastner, a chiropractor at the Grant Clinic, for stiffness in her mid back and neck. On February 6, when she saw Dr. Kastner, she mentioned that she had needed to restrain a patient a few days before and felt her mid back and neck “pop out.” She had experienced upper dorsal and neck discomfort since. Dr. Kastner noted some restriction during right cervical rotation, while left rotation was normal. Cervical compression caused mild CT binding. He diagnosed a cervical strain with fixation.
Further assaults followed on February 14 and 16, March 12, and May 16. The assaults usually involved hitting and hair pulling. In some cases the employee was attacked from behind, once while riding in front of the resident in the middle seat of a van. In her testimony, the employee characterized them as involving no serious injury. Records of the Grant Clinic on February 20 reflect that the employee reported neck stiffness following “a couple of run-ins” with a patient. On March 13, she was seen at the Grant Clinic and stated that her neck had been strained again the night before when a patient grabbed her by the hair. Dr. Kastner diagnosed a trapezius strain with fixation with concurrent cephalgia. He did not impose any work restrictions.
The employee was again assaulted by the resident on May 23, 2002, while helping her shop for a memorial card and flowers at Walmart. She was seen the following day, May 24, at the Alexandria Clinic on an urgent care basis by Dr. Bruce Wymore, M.D. She reported ongoing discomfort in the left cervical spine and left trapezius muscle due to an altercation with a patient. Dr. Wymore diagnosed cervical spine and left trapezius muscle strain. He provided pain medication and released the employee to work without restrictions.
On May 30, 2002 the employee returned to the Alexandria Clinic and was seen by her family physician, Dr. Longbotham. She was seen in follow-up for injuries from the May 23, 2002 assault. The employee reported persistent heaviness in her left arm and a numb sensation in the palm of her hand. She was observed to have limited use of her arm and range of motion limitations in her shoulder. There was pain in the posterior shoulder as well as over the trapezius region. Dr. Longbotham diagnosed cervical and trapezius strains with involvement of the infraspinatus muscle and tendon. He prescribed pain relievers and a muscle relaxant, recommended physical therapy, and restricted the employee to sedentary work.
On the date of the last assault the employee had attended a meeting at work at which the increasing frequency and aggressiveness of assaults by the resident on various members of the Vinland staff had been discussed. The employee testified that she was told by the employer’s managers that nothing could be done about the resident’s behavior and that Vinland staff would simply have to “live with it.” The employee found this response unsatisfactory and submitted her resignation from the job with the employer effective on June 11, 2002, because she felt unable to continue working in a setting where she feared further assaults. The employer offered to give the employee a similar job at another of its facilities, but the employee turned this down as there was an assaultive patient at that facility also.
The employee had a long history of recurrent depression and had been treating with a psychologist, Howard Peterson. She was on the medication Zoloft, prescribed at 50 milligrams. By April 24, 2002 Dr. Peterson reported that the employee had a stable, positive mood, was working regularly, did well on her job, and felt productive. Her depression appeared to be well-controlled by her medications and he anticipated that she could be discharged from therapy after her next session. However, when the employee returned to Dr. Peterson on June 5, 2002, he recorded that she presented with worsening of her depressive symptoms, a sleep disturbance, a depressed and negative mood, impaired concentration, and loss of interest. The employee attributed this to her recent assault by a group home resident. She told Dr. Peterson that she had decided she could not continue working at the home due to the multiple assaults.
On June 10, 2002 the employee returned to the Alexandria Clinic. She was noticing some improvement to her range of motion despite ongoing pain in her left neck trapezius and parascapular areas. Dr. Longbotham noted that physical therapy had not yet been approved. He placed the employee on a light work restriction. The employee was also seen by her chiropractor on June 13 for neck stiffness resulting from the May 23 assault. He diagnosed a trapezius strain.
The employee sought alternate work following her resignation from the employer and on June 13, 2002 she was hired and began training for a job with another employer, working at Prairie Senior Cottages, a transitional home for Alzheimer patients. During the three days of training she felt unusually fearful and would sometimes have flashbacks of the attacks by the resident at the Vinland group house whenever she was situated in a vulnerable position, as, for example, when she would kneel down to help a resident put on shoes. This problem was recurrent in such situations and the employee would then feel a strong urge to flee. At the beginning of what was to have been her first actual day on the job, the employee broke down crying and could not start the job.
The employee returned to Dr. Longbotham on June 24, 2002. Her neck was improved with only minimal discomfort and the doctor concluded that her cervical strain was essentially resolved. The employee told Dr. Longbotham about her increasing and persisting psychological trauma from the assault, including her difficulty with starting work at Prairie Senior Cottages. The employee also reported problems with sleep and energy and stated that she felt more depressed. Dr. Longbotham concluded that the employee was having either post traumatic stress disorder or an acute stress response. He increased her Zoloft to 100 milligrams and referred her to Mary Hammergren for counseling.
The employee was seen at the Alexandria Clinic in follow-up for post-traumatic stress disorder on July 3, 2002. She was still reporting significant problems with having anyone around or near her, particularly positioned over her head level. She had not been able to start counseling because there had not been any authorization from the insurer. Dr. Longbotham suggested a trial of Klonopin, an anti-anxiety medication. He restricted the employee to avoid situations with people at or above her head or involving close contact with people.
In late July the employee was called persistently by a friend who wanted to recruit her to go into business as a PartyLite representative, conducting in-home candle sales parties. The employee at first refused but later agreed to try it when told that there was a trial period of six shows and that she would not need to continue after that if she did not like it. In July 2002 the employee conducted six shows and attended a PartyLite conference in St. Louis. She had $1800 in sales and concluded that she might be able to build this business to a level providing a significant weekly income. However, as time went on there were fewer sales.
When the employee returned to Dr. Longbotham on August 13, 2002, she reported that she was having difficulty sustaining her interest in her new business endeavor. She was not sleeping well. Counseling with Mary Hammergren had not yet started. Dr. Longbotham added Wellbutrin to the employee’s medications and increased Klonopin to 1 milligram. He restricted the employee from any direct client care. The employee continued to treat medically for this condition with Dr. Longobotham, who continued her medications and restrictions throughout the remainder of 2002.
The employee first attended counseling with Mary Hammergren on September 4, 2002. She reported sleep disturbance, a lack of motivation, and anxiety. Ms. Hammergren diagnosed post-traumatic stress disorder. During September 2002, the employee told Ms. Hammergren that even her PartyLite work was provoking increased anxiety, and that she was fearful and not confident in herself and abilities. She was feeling too depressed and anxious to complete some of her intended calls to set up candle sales parties. In addition to post-traumatic stress disorder, Ms. Hammergren noted low self-esteem and passive/dependency issues surfacing with the employee’s self-employment. In mid and late October, Ms. Hammergren noted that the employee was more hopeful and was showing better follow-through with assignments. She was also being more successful in calling and setting up her candle sales shows.
The employee met with Ione Tollefson, a QRC, for a rehabilitation consultation on October 16, 2002. The employee told Ms. Tollefson that she was able to emotionally tolerate conducting the PartyLite shows. Since starting with PartyLite she had given about 15 shows and had three already booked in October. She reported gross earnings of just under $1000 but so far had no positive cash flow due to expenses. The employee hoped that by the end of year she would have a positive cash flow. The QRC recommended that the employee take a computer class to assist her in the record-keeping aspects of her business. Ms. Tollefson thought that the employee would benefit from QRC assistance and that more time was necessary to assess whether the employee’s current self-employment would become economically suitable. The QRC prepared an R-2 vocational plan which reflected these conclusions. The plan was signed by the employer and insurer on October 31, 2002.
The employee was seen by Dr. Allison Meisner, M.D., a psychiatrist, for a consultation on November 5, 2002 at the request of Dr. Longbotham. She diagnosed major depression and post-traumatic stress disorder and noted that the employee’s symptoms had limited the employee’s ability to work in her previous type of job.
By November 18, 2002 Dr. Longbotham noted that the employee was making slow progress with increased levels of medication. She had been able to sleep all night a few days previously, which was unusual, but she was still not able to let her granddaughters brush her hair. Dr. Longbotham continued work restrictions of no direct patient care.
The employee was seen by Dr. Richard Strand, orthopedic surgeon, on January 15, 2003 for a medical examination on behalf of the employer and insurer. Dr. Strand concluded that the employee had sustained a temporary cervical and left trapezius strain due to the May 23, 2002 work incident, but had reached MMI from this condition by July 3, 2002 and was in need of no work restrictions due to the physical injury.
On January 16, 2003 the employee telephoned her QRC, Ione Tollefson, stating that her self-employment had not gone as well as she had hoped and that she wanted to begin looking for other work. The QRC prepared a rehabilitation plan amendment which called for adding “vocational testing to assist in determining appropriate job goals and job placement services to assist Ms. Maus in finding suitable work for Ms. Maus’ rehabilitation plan.”
On January 20, 2003 the employee returned to the Alexandria Clinic. Dr. Longbotham noted that the employee’s post-traumatic stress was gradually improving but she was having more neck and back discomfort. Since the employee was considering finding other work he referred the employee to a chiropractor for evaluation of her back and neck. He reiterated that she was to avoid work situations or work stations where other workers might be behind or immediately above her.
On February 10, 2003 the employee saw her psychiatrist, Dr. Meisner. She told her that she had gone off her medications three weeks ago and had experienced no withdrawal. She also told her of her plan to seek a different job. Dr. Meisner noted that the symptoms of the employee’s depressive mood disorder, or hypomania, were somewhat worse.
On February 10, 2003 the employee, employer and insurer, and QRC signed a job placement plan and agreement (JPPA). The JPPA called for job search in the vocational areas of clerical positions, receptionists, desk clerk, bank teller, teacher’s aide, and medical lab tech. The employee’s QRC began contacting potential employers the following day but her records over the next few weeks reflect few if any openings for which the employee might qualify in her labor market.
The employee was examined on February 17, 2003 by Dr. John Rauenhorst, a psychiatrist, on behalf of the employer and insurer. Dr. Rauenhorst opined that the employee currently had no psychological disorder. He noted she had a longstanding prior major depression disorder which he considered to be in remission. In his view, the assaults at work caused an exacerbation of the employee’s depression from May 2002 until early November 2002, when MMI was reached from her depression disorder. He offered no opinion or comment about a post-traumatic stress disorder. In his opinion, the employee needed no work restrictions relative to a psychological condition.
The employee was scheduled for vocational testing with Dr. Riedel in February 2003 but missed the appointment as a result of a misunderstanding after the date was rescheduled by Dr. Riedel. As of the date of hearing on March 11, 2003 the employee had not yet undergone the vocational testing.
A hearing was held on March 11, 2003 before a compensation judge of the Office of Administrative Hearings. Following the hearing, the compensation judge found, among other things not relevant to the present appeal, that in addition to a physical injury in the form of a neck and trapezius strain which resolved by July 3, 2002, the employee had sustained a psychological injury resulting in post-traumatic stress disorder. The judge found that the employee had not reached MMI from all conditions, that the employee had not withdrawn from the labor market and that she had performed a reasonably diligent job search under all the circumstances of the case. The employer and insurer appeal from the compensation judge’s findings that the employee did not withdraw from the labor market, that she conducted a reasonably diligent job search, and that she had not yet reached MMI from all conditions, as well as from the consequent award of temporary disability benefits and of attorney fees.
Withdrawal from Labor Market
The employer and insurer argue on appeal that the employee withdrew from the labor market by leaving her job with the employer and by failing to begin work at Prairie Senior Cottages. The position of the employer and insurer is based on an argument that the employee did not have work restrictions imposed by a physician which precluded these jobs.
With regard to the resignation at REM, the record demonstrated that the employee was assaulted on six separate occasions over a period of four months. She raised her concerns to the employer and was told nothing could be done. Her resignation letter stated specifically that she was leaving because of the continuing assaults. Given this evidence, it was not error for the compensation judge to conclude that the employee did not withdraw from the labor market when she resigned from REM.
The nature and extent of an employee’s restrictions after a work injury is a question of fact committed to the compensation judge. While the 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. See, e.g, Titel v. Thermoform Plastics, Inc., slip op. (W.C.C.A. July 17, 2000); Hallila v. Lund Int’l. Holding, Inc., slip op. (W.C.C.A. November 25, 2002).
In the present case, it was when she started to work for Prairie Senior Cottages that the employee first experienced the symptoms which led her physicians to subsequently diagnose a post-traumatic stress disorder. These symptoms included inordinate fearfulness and flashbacks of the prior attacks when situated in a submissive position to patients. It was not unreasonable for the compensation judge to conclude that the restrictions imposed by the employee’s physicians in response to this condition would also have been appropriate for the employee at this earlier date.
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). On the basis of the evidence presented in this case, the compensation judge could reasonably infer that the employee quit the job with Prairie Senior Cottages due to an inability to perform the job as a result of her work injury, rather than as an indication of an intention to withdraw from the labor market.
The employer and insurer also argue that the employee withdrew from the labor market by pursuing self-employment with Partylite. It is contended that the employee’s efforts in her self-employment endeavors were so minimal as to constitute withdrawal, especially in light of her failure to seek other employment.
While there was some evidence indicating that the employee held back from calling to book shows at times during her attempt at self-employment, that evidence was primarily in the context of medical records in which the employee’s psychologist noted that the employee’s PartyLite work was provoking increased anxiety in the context of her post-traumatic stress condition, and that her depression and anxiety had interfered with her ability to complete some of her intended calls to set up candle sales parties. At other points in the record the employee’s attitude towards her attempted self-employment is enthusiastic and optimistic. The evidence does not, therefore, compel the conclusion that the employee failed to make a reasonable effort to succeed in her self-employment attempt. The objection to the limited job search during this period is in essence an objection to the attempt to establish the self-employment as a reasonable job alternative. However, we note that the employer and insurer not only had signed the employee’s rehabilitation plan, which recommended this trial of self-employment, but had also agreed to pay for a computer class for the employee intended to assist her in record-keeping for the self-employment. After about six months, when the PartyLite business failed to become profitable, the employee on her own initiative requested that her rehabilitation now focus on job search assistance to help her find other work. Under the circumstances, the compensation judge did not clearly err in concluding that the employee’s brief attempt to make this self-employment successful was not a withdrawal from the labor market.
The employer and insurer argue that the compensation judge erred in concluding that the employee engaged in a diligent job search. The employer and insurer rely in significant part on the amendment to Minn. Stat. § 176.101, subd. 1(g) which states that “temporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee’s physical restrictions.” It is argued that the lack of the word “rehabilitation” in the statute means that cooperation with rehabilitation services is irrelevant. We disagree.
The statutory provision does not set forth what factors a compensation judge should consider in determining whether a job search is reasonably diligent. Accordingly, its failure to mention cooperation with rehabilitation as a factor to consider does not indicate that this factor must be omitted. Since the statute essentially codifies prior case law which requires a diligent job search as a prerequisite to temporary total disability compensation, we conclude that it contemplates application of the existing related case law as to the factors which a compensation judge may consider in determining the issue.
Rehabilitation services were added to the workers’ compensation statute in 1979. In the subsequent twenty four years, it has been stated time and again that when rehabilitation services are provided, the central question in determining eligibility for temporary total disability compensation is whether the employee has cooperated with the QRC in those rehabilitation efforts. Mayer v. Erickson Decorators, 372 N.W.2d 729, 38 W.C.D. 107 (1985), Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989), Hughes v. Case Corp., slip op. (W.C.C.A. February 13, 2003); Boeder v. MN Dept. Of Natural Resources, slip op. (W.C.C.A. August 7, 2003). We conclude that the statutory amendment does not change this long standing policy.
The rehabilitation plan prepared by the QRC in October 2002 and approved by the employer and insurer did not call for job search by the employee but rather focused on improving the likelihood for success in the employee’s self-employment by providing a computer course at an area vo-tech. The amendment to the rehabilitation plan which was prepared by the QRC and approved by the employer and insurer after it became apparent that self employment would not result in suitable employment did not call for job search but instead for vocational testing which would identify areas of job search which would likely be successful for the employee. As of the date of hearing that testing, through no fault of the employee, had not taken place. The JPPA which called for job search with new employers was not signed until February 10, 2003. The hearing in this matter took place on March 11, 2003.
Given the employee’s uncontroverted cooperation with her QRC, her own job search activity and the QRC’s testimony that she had been unable to locate any job openings within the employee’s restrictions, substantial evidence supports the compensation judge’s conclusion that the employee was entitled to temporary total disability compensation.
Maximum Medical Improvement
The compensation judge found that the employee had reached maximum medical improvement (MMI) from the purely physical component of her injury, but that she had not reached MMI from all conditions related to the injury, and that it was premature to find that the employee had reached MMI from her post-traumatic stress disorder or that this condition was merely temporary in nature. The employer and insurer argue that the compensation judge should have found that MMI had been reached from the employee’s psychological condition. They argue that there was insufficient evidence of a continuing condition given, among other factors, the employee’s ability to discontinue medications and the lack of any record of recent treatment with her medical providers.
The question of whether maximum medical improvement has been reached is one of ultimate fact for the compensation judge to decide. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989). The burden of establishing MMI is generally on the employer. DeNucci v. National Steel Pellet, slip op. (W.C.C.A. August 28, 2002). While the employer and insurer did offer the opinion of Dr. Rauenhorst that the employee’s long-standing depressive disorder was in remission, he did not find that the employee had sustained a post-traumatic stress disorder, and accordingly offered no opinion as to whether the employee had reached MMI from such a condition. Otherwise, the employer and insurer failed to show by clear medical or other evidence that the employee’s post-traumatic stress disorder was either fully resolved or that it was not reasonably likely to improve further. Accordingly, the conclusion reached by the compensation judge was not clearly erroneous and unsupported by substantial evidence. We therefore affirm.
The employer and insurer also appeal the attorney fees awarded to the employee’s attorney. As this appeal is predicated solely on the same grounds discussed above, we affirm the fee award.