ARDITH L. NEFZGER, Employee, v. SHARON=S PLACE and STATE FUND MUTUAL COS., Employer-Insurer/Appellants, and BLUE CROSS/BLUE SHIELD/BLUE PLUS OF MINN., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 3, 2003
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee was totally disabled from working through the date of the hearing.
Determined by Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Joan G. Hallock
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal the compensation judge=s finding that the employee is entitled to temporary total disability benefits. We affirm.
On September 27, 2000, Ardith L. Nefzger, the employee, sustained a thoracic spine injury while working as a waitress for Sharon=s Place, the employer, which was insured for workers= compensation liability by State Fund Mutual Insurance, the insurer. The employee was initially taken off work by Dr. Dennis Hanson, a chiropractor, a few days after the injury. Dr. Hanson indicated that the employee was completely unable to work from October 3, 2000, through October 30, 2000. The employee also treated with Dr. Wesley Ofstedal at the Dakota Clinic in Fosston for back pain. A December 6, 2000, MRI indicated mild degenerative changes at L4-5 and L5-S1, but no significant appearing nerve impingement. The employee continued to treat with Dr. Ofstedal for low back pain.
In January 2001, the employee consulted with Dr. Dennis Sollom of the physical medicine and rehabilitation department of the Dakota Clinic. Dr. Sollom ordered thoracic spine x-rays and a bone scan, which ruled out compression fracture, infection or inflammation or tumors. Dr. Sollom recommended a physical therapy program to attempt to improve the employee=s sprain/strain. In April 2001, the employee reported mid to low back pain. Dr. Ofstedal noted tenderness of the paraspinous lumbar muscle posteriorly, decreased range of motion of the back in forward flexion to about 30 degrees, and that the employee tended to flex her knees when walking. Dr. Ofstedal indicated that the employee was still disabled from her usual work because of these problems and that she would continue to be so for the foreseeable future.
The employee was evaluated by Dr. John Dowdle at the employer and insurer=s request on May 10, 2001. Dr. Dowdle opined that the employee=s September 2000 injury was a substantial contributing factor to the employee=s need for medical treatment, but that the employee was capable of working with restrictions since the date of the injury. Dr. Dowdle stated that he did not anticipate a permanent injury related to the employee=s condition. He concluded that she was not at maximum medical improvement and that further care and treatment would relieve her of her symptoms. He concluded that the medical treatment the employee had received had been reasonable. He also concluded that the passive chiropractic treatment the employee received during the first three months post-injury had been reasonable, but that any chiropractic treatment beyond that would not be reasonable and necessary.
In June 2001, Dr. Ofstedal, in response to Dr. Dowdle=s report that the employee was not completely disabled, opined that this was not realistic since the employee=s skills were limited to waitressing and bartending, and she could not perform the lifting tasks required for these jobs. Dr. Ofstedal opined that the employee is disabled. His examination of the employee in July 2001 indicated pain at the T6-T7 area on the right. The employee was treated with cortisone injection. In August 2001, Dr. Ofstedal began completing work injury reports which indicated that the employee was currently unable to work, the most recent of which was dated November 6, 2001.
The employee filed a claim petition on February 9, 2001. The employer and insurer denied primary liability, and therefore paid no wage loss benefits nor medical expenses, and provided no rehabilitation assistance to the employee. A hearing was held on May 14, 2002. The employer and insurer maintained their denial of primary liability, claimed inadequate notice, and did not stipulate that the employee was totally disabled. The compensation judge found that the employee had sustained a work-related injury on September 27, 2000, that the employee had given adequate notice of the injury, and that she had been totally disabled from the date of injury. The employer and insurer appeal the compensation judge=s finding that the employee has been totally disabled from the date of injury.
STANDARD OF REVIEW
In reviewing cases 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, "[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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." Id.
The employer and insurer argue that the employee failed to meet her burden of proof for the award of temporary total disability benefits, claiming that the employee did not prove the nature and extent of her injury, nor any need for work restrictions, and that she had not made a diligent job search. An employee capable of working must generally make a diligent job search to establish entitlement to temporary total disability benefits, even if maximum medical improvement has not been reached, unless factors such as age, physical condition, training, and experience indicate that the employee is incapable of obtaining anything but sporadic work with insubstantial income. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). However, an injured employee is not required to seek and be denied employment as a prerequisite to a finding of total disability if a job search would be futile. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 431-33 (Minn. 1978). The employer and insurer argue that the employee has not shown that she was incapable of working, that she has made a diligent job search, or that a job search would be futile.
The compensation judge found that the employee has been temporarily totally disabled since the date of the injury. Dr. Hanson took the employee off work when he treated her a few days after the injury. While Dr. Dowdle opined that the employee was capable of working with restrictions since the date of the injury, Dr. Ofstedal stated that this opinion was not realistic since the employee=s skills were limited to waitressing and bartending, and she could not perform the lifting tasks required for these jobs. The employee=s medical records from her treatment with Dr. Ofstedal which were entered into evidence at the hearing are dated through January 2, 2002, when Dr. Ofstedal noted that the employee was using a cane and sometimes crutches, that her symptoms had worsened, and that she remained disabled. The compensation judge found that the employee Awas removed from work by Dr. Hanson and by her treating doctor at Dakota Clinic. Only Dr. Dowdle opines that employee was capable of working after the injury, and his opinion regarding employee=s capability to work is rejected.@ 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 temporarily totally disabled through the date of the hearing, and we affirm.