ROGER E. ROSS, Employee, v. NEWMECH COMPANIES., INC. and CNA COMMERCIAL INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 12, 2003
TEMPORARY OR PERMANENT AGGRAVATION - Substantial Evidence. Substantial evidence including medical opinion and records and the employee=s testimony supported the compensation judge=s finding of a permanent injury.
RESTRICTIONS - Substantial Evidence. Substantial evidence including medical opinion and records and the employee=s testimony supported the compensation judge=s finding that the employee was subject to medical restrictions.
JOB SEARCH - Reasonably Diligent. Substantial evidence supports the compensation judge=s finding that the employee had conducted a reasonably diligent job search for the period during which the employee, consistent with his 25 years of prior practice, relied exclusively on his union hiring hall in seeking employment within his restrictions.
TEMPORARY PARTIAL DISABILITY - The compensation judge did not clearly err in awarding temporary partial disability compensation where there was no evidence that jobs within the employee=s restrictions actually existed in Minnesota and where there was evidence indicating that driving for long distances to work was medically inappropriate for the employee as a result of the work injury.
Determined by Wilson, J., Pederson, J, and Stofferahn, J.
Compensation Judge: Gary P. Mesna
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s finding that the employee sustained a permanent, rather than temporary, aggravation to his low back condition on October 31, 2000. The employer and insurer further appeal from the compensation judge=s awards of temporary total and temporary partial disability compensation. We affirm.
The employee, Roger E. Ross, is a resident of Westby, Wisconsin, which is located about 25 miles southeast of LaCrosse. He began working in the ironworking trade in 1976 and has continued in that trade ever since. In 1979 he joined the union and began his apprenticeship, becoming a journeyman in 1984. He is a member of Iron Workers Local 383 in Madison, Wisconsin.
The employee has sustained a number of work and non work injuries over the years, including several to the low back. His first specific low back injury occurred in 1984 while he was working for Lunda Construction doing rebar work for a box culvert. He was off work from seven to ten days and treated at Gunderson Lutheran Hospital in La Crosse and with a chiropractor, Dr. Martin Erlandson. He fully recovered from the injury within a couple of months and resumed his work as an ironworker without restrictions. The employee sustained another injury in the same area of his low back in 1991 while carrying some I-beams at work for another employer. He missed no time from work but treated chiropractically and had symptoms which lasted about two months before they fully resolved.
In 1996 the employee slipped and fell while hunting and had a brief problem with his low back for which he treated again with Dr. Erlandson and in 1998 he reinjured his low back in the same place as before when getting out of his car. Both of these aggravations resolved quickly without ongoing residual problems. The employee treated sporadically over the years with Dr. Erlandson for minor episodes of back pain which he did not associate with any specific injury.
On October 15, 1999, the employee returned to Dr. Erlandson with complaints of low back pain and stiffness which started while moving iron at work. Dr. Erlandson noted that the employee also had decreased range of motion in his right sacroiliac joint. He treated the employee by chiropractic adjustment to the right sacroiliac joint. The employee continued to treat for this injury with Dr. Erlandson, who performed adjustments at the employee=s L5 spinal level about a dozen times through mid-December 1999. Dr. Erlandson=s notes continued to mention pain in the employee=s sacroiliac joint through October 21 but thereafter the treatment focused on low back pain. On December 14, 1999, Dr. Erlandson noted that the employee had reached maximum medical improvement without residual injury and dismissed him from treatment without any restrictions.
In March 2000 the employee learned from a relative who worked for the employer herein, NewMech Companies, that the employer had work for which the ironworkers= local in Minnesota had been unable to provide enough ironworkers. The employee decided to come and work for the employer on this project. As New Mech is a Minnesota employer, special arrangements had to be initiated by the employer so that the employee could obtain authorization to be temporarily associated with the Minnesota ironworkers local hiring hall.
The employee first worked for New Mech on a project in Shakopee where he worked substantial overtime doing heavy work with no low back problems. After this project finished he continued to work for the employer at a project at the 3M plant in Hutchinson. In October 2000 this project also finished and the employee continued working for the employer at a project in Dexter, Minnesota. On October 31, 2000, the employee was working in the employer=s break shack and reached over a desk to lift a five-gallon water bottle intending to make coffee. As he picked up the bottle he felt an immediate stabbing pain in the low back.
The employee sought treatment with his chiropractor, Dr. Erlandson, the same day. Dr. Erlandson noted that the employee=s pain crossed between the sacroiliac joint on each side and included the lumbar area. He performed a chiropractic adjustment at L5 and took the employee off work. The employee was advised to return for three adjustments each week for the next two weeks. By November 1, 2000, the employee was reporting a decrease in the sharpness of his pain. He told Dr. Erlandson he was attempting to return to work that day, though probably on light duty. The employee continued to show some improvement during several treatments with Dr. Erlandson through early December 2000 although he reported increased pain on sitting, lifting or driving for long periods of time. He continued to work for the employer in light duties. Dr. Erlandson diagnosed a low back strain.
On December 13, 2000, the employee reported that his pain had been exacerbated by twisting and falling in the warehouse while at work the day before. On December 22 Dr. Erlandson noted that the employee had now slipped and stumbled several times at his job because of working outside in ice and snow, and while overall treatment had resulted in a decrease in back pain, the employee was still exhibiting severe swelling at L4-5 bilaterally with a double leg raise sign bilaterally and a positive iliac compression test. On January 24, 2001, Dr. Erlandson noted that numerous slips and falls since the work injury had resulted in increased spine discomfort and that the employee had also received a large bruise over the iliac crest on the left side and increased pain recently when a co-worker dropped his end of a piece of iron he and the employee had been carrying. The employee expressed frustration that he was not improving.
On February 5, 2001, employee sought treatment for his low back problems with Dr. Scorby at the Gunderson Lutheran Hospital in La Crosse. He now was experiencing numbness down the right leg with prolonged sitting and intermittent left leg pain as well. Dr. Scorby diagnosed mid to low back strain, prescribed physical therapy, and restricted the employee to light to medium work over the next few weeks. The employee told the doctor that he was scheduled to perform mostly office work for the employer over the next few weeks anyway.
On February 19, the employee told Dr. Scorby he was still working in job duties that did not require much physical activity and he had gone to one physical therapy session. He was feeling somewhat improved in that he was not having leg pain and his mid back pain was much better, but he still had low back pain. Dr. Scorby continued physical therapy, medications and work restrictions. However, on March 30, 2001, when the employee returned to Dr. Scorby, he reported that he had not improved further despite three physical therapy appointments. He was now working for the employer at a construction site and had not been able to stay within his restrictions since there was not much light duty work. Dr. Scorby diagnosed low back strain with chronic low back pain. He referred the employee to Dr. Evan Nelson at the hospital=s physical medicine and rehabilitation clinic.
Dr. Nelson saw the employee on April 20, 2001. The employee described two pain sites. His worst pain was in the lower lumbar area and over the sacroiliac joint, but he also had pain in the upper lumbar area, as well as an occasional burning sensation in the left lower leg to the knee. Symptoms increased with bending, lifting, standing, walking, reaching, driving, squatting and climbing. Dr. Nelson diagnosed a musculoligamentous problem and prescribed new medications and continuing physical therapy. He authorized the employee to work only under light or medium restrictions.
On May 24, 2001, the employee started physical therapy at the Institute for Athletic Medicine, where he told the therapist that pain prevented him from sitting more than a half hour at a time. Dr. Nelson similarly noted on June 1, 2001, that while the employee=s pain was primarily in the mid lumbar region, it at times radiated into the thigh, primarily while driving. The employee had numbness in the same distribution. Dr. Nelson recommended that the employee undergo an MRI scan to check for a L5-S1 disc herniation. The MRI was performed on June 6 and showed mild degenerative disc disease and facet arthropathy at L4-5 and L5-S1 with mild foraminal stenosis but no focal disc herniation or central canal stenosis.
Because the employee=s symptoms persisted, Dr. Nelson recommended a trial of epidural injections. The employee received an epidural steroid injection at L4-5 on July 11, 2001, which afforded no relief. A second series of epidural injections in August 2001 also failed to provide relief. In September 2001 because the employee=s pain had proven to be non-responsive to conservative treatment, Dr. Nelson recommended consideration of a diskogram or an IDET procedure, but these procedures were denied by the insurer.
On November 15, 2001, the employee was seen for a neurosurgical opinion by Dr. Burton Onofrio, who noted that the employee=s symptoms, despite 13 months of conservative therapy, were essentially undiminished since their onset. His neurological examination was normal. Dr. Onofrio noted that the employee=s current diagnosis was that of a mechanical backache and his MRI scan had demonstrated only minimal changes at L5-S1. He considered it Ainconceivable@ that the employee would be helped by surgery and had no treatment suggestions to make.
The employee returned to Dr. Nelson on December 27, 2001. The doctor suggested that since conservative treatment had been exhausted and since surgery was not an option, the employee might benefit from an IDET procedure, but would first need a diskogram. Other options the doctor mentioned included work hardening and a functional capacities evaluation.
The employee was seen by Dr. Paul Diekmann for an orthopaedic consultation at the request of the employer and insurer on January 29, 2002. Dr. Diekmann noted that the employee=s difficulties began with his injury on October 31, 2000, and had continued ever since despite two epidural steroid injections, physical therapy, work hardening, and pain management treatment. The employee told Dr. Diekmann that most of his pain was low in his back, at the waist and into the buttocks. Pain radiated into both legs, on the left extending into the foot, but on the right stopping at the knee. On examination, Dr. Diekmann noted that the employee=s left hemipelvis was elevated as compared to the right and the employee was tender throughout his sacroiliac joint. The left hip also showed slightly reduced flexion and rotation compared to the right. Dr. Diekmann suspected that most of the employee=s pain was coming from his sacroiliac joint complex and that he had a very subtle sacroiliac joint subluxation which had been chronic since his injury. He noted that this would be consistent with the mechanism of injury that the employee had described. The doctor referred the employee to Dr. Orrin Mann, an occupational health specialist with expertise in management of sacroiliac joint instability problems.
The employee began to treat with Dr. Mann on February 8, 2002. Dr. Mann initiated a physical therapy course specifically directed at restoration of pelvic alignment. The employee obtained approval to be off work to attend the therapy. By March 13, 2002, the employee was reporting that his back pain was 70 percent improved and the leg pain was 90 percent improved, although he continued to have some pain in the right lumbar region. Dr. Mann continued the therapy and kept the employee off work. By April 3, 2002, the employee had been able to withdraw completely from the use of narcotic pain medication and his leg pain was completely gone. His back pain was dramatically reduced. Dr. Mann released the employee to work with restrictions.
On April 24, 2002, Dr. Mann noted that the employer had not permitted the employee to return to work under the restrictions provided. However, on May 22, 2002, the employee returned accompanied by a QRC and informed the doctor that the employer was now apparently able to accommodate some restrictions. Dr. Mann continued the employee=s restrictions and recommended that he work in conjunction with his physical therapy as a work hardening program. He authorized the employee to increase his work load on a trial basis but was adamant that the employee should not be assigned to work beyond restrictions. On June 19, Dr. Mann accepted the employee=s request to try working in unrestricted activities but limited him to four hours per day, to increase one hour per day every week. On July 17, the employee returned and indicated that the work hardening approach was not working and that his back pain had returned. Dr. Mann noted that he was not surprised that this had been the result of the attempt at unrestricted work. He reinstituted restrictions and sent the employee to a neck and back clinic for an aggressive lumbar reconditioning program.
On August 22, 2002, the employee was seen for a medical opinion on behalf of the employer and insurer by Dr. Stephen E. Barron. Dr. Barron noted no positive findings on examination of the lumbar spine. He opined that the employee=s work injury in October 2000 had been a temporary aggravation to the employee=s underlying low back condition, in the form of a lumbar strain, which had healed within six months of the date of injury with maximum medical improvement having been reached by April 30, 2001. In his view, the employee needed no further treatment or restrictions.
The insurer contacted the employee=s QRC on September 26, 2002, to instruct him that rehabilitation was being terminated. Based on the opinion of Dr. Barron, the employee attempted a return to work without restrictions but was able to work only part of each of two days. On October 3, 2002, the employer and insurer filed a notice of intent to discontinue temporary total disability compensation based on a return to work at full wages. The employee filed an objection to discontinuance on October 9, 2002. When the employee was unable to continue working without restrictions, the employer laid him off on October 10, 2002. The next day, the employee contacted his local hiring hall in Wisconsin requesting work within his restrictions. He continued to contact the hiring hall over the next several months but no work was provided to him.
In a letter report dated October 16, 2002, Dr. Mann reiterated the employee=s restrictions which included that he not lift over 50 pounds, push or pull over 100 pounds, or perform more than occasional bending, stooping or twisting. He was to be permitted to change positions as needed. Dr. Mann opined that the employee had sustained a permanent injury at work in October 2000. In January 2003 the employee began calling employers on his own seeking union ironwork, although, he testified, this was rather unusual in the ironworking trade, had only become permissible within the last year or two, and was something he had never needed to do before during his career in this trade. However, the personal contacts proved effective and the employee found work within his restrictions near his home in Wisconsin which he started on January 28, 2003.
A hearing was held before a compensation judge of the Office of Administrative Hearings on February 4, 2003, on the employee=s objection to discontinuance. Issues presented included whether the employee=s work injury was temporary or permanent in nature; whether the employee had physical restrictions as a result of the injury; whether he had performed a reasonably diligent job search, and whether the employee was entitled to temporary total and temporary partial disability. The compensation judge found in favor of the employee on all issues and the employer and insurer now appeal.
1. Temporary or Permanent Aggravation.
The employer and insurer contend on appeal that the compensation judge erred in finding that the employee had sustained a permanent injury on October 31, 2000. They argue that the compensation judge should have adopted the opinion expressed by their medical expert, Dr. Barron, who considered the October 2000 work injury to be temporary.
Generally, this court must affirm a compensation judge=s choice of expert medical opinion unless the opinion has an inadequate factual foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge in this case accepted the opinion of the employee=s treating physician, Dr. Mann, who considered the employee=s October 2000 work injury to be a permanent aggravation of the employee=s prior condition.
The employer and insurer point out that the employee=s chiropractor, Dr. Erlandson, noted and treated symptoms of a sacroiliac joint problem in October 1999 as part of his treatment of the employee for a prior low back injury, until the employee=s symptoms fully resolved in December of that year. They argue that the expert opinion of Dr. Mann, who may have been unaware of this prior SI joint treatment, was accordingly deficient as to foundation, and that the opinion of Dr. Barron, whose account of the employee=s medical history specifically mentions this prior SI joint treatment, should have been considered unopposed medical opinion which the compensation judge was obligated to adopt.
We disagree. We do not think that a detailed history of all of the details of the employee=s prior treatment was an absolute foundational prerequisite to rendering an opinion as to the temporary or permanent nature of the employee=s symptoms from and after a subsequent injury. Even if Dr. Mann did not know that Dr. Erlandson had briefly treated the employee=s SI joint in 1999, the employer and insurer have not been suggested that he was unaware of the nature and course of the employee=s symptoms and treatment following the October 2000 work injury. As such, we conclude that he had sufficient foundation to render an opinion on the matter at issue. Other evidence in the case included the employee=s failure to improve despite extensive conservative treatment, the repeated and prolonged imposition of work restrictions by the employee=s physician, and the employee=s inability to return to his regular duties at work following the October 2000 work injury, as contrasted with the pre-injury situation in which the employee consistently had experienced a full resolution of prior low back and SI problems with no restrictions or problems with returning to full duties in a very physically demanding trade. The compensation judge did not disregard Dr. Barron=s report; rather, he simply failed to find Dr. Barron=s view to be convincing in light of the evidence taken as a whole.
The employer and insurer next point out that Dr. Erlandson, despite treating the employee for an SI problem in 1999, failed to diagnose any SI joint problem during the employee=s treatment with him after the October 2000 work injury. This appears to be in essence an argument on the question of causation, and only indirectly an argument as to whether the employee=s injury was temporary or permanent in character. The employer and insurer apparently seek to suggest that the employee=s sacroiliac joint problem, even if now permanent in nature, was unrelated to the October 2000 work injury, and that the 2000 work injury thus involves only a purely low back component which has resolved.
We note, first, that this opinion was not specifically expressed by any of the medical experts. Second, and more importantly, we note that there was contrary medical evidence which supports the conclusion that the October 2000 work injury did result in an injury or aggravation to the employee=s SI joint. Particularly noteworthy is the opinion of Dr. Diekmann, who specifically stated in his records that a sacroiliac joint subluxation was quite consistent with the mechanism of injury that the employee described and that the SI joint problems were chronic since the October 2000 work injury. In addition, we note that the very symptoms which the employee had exhibited ever since the October 2000 work injury all markedly improved when Dr. Mann instituted treatment directed at an SI joint problem.
The nature and extent of an employee=s restrictions after a work injury is a question of fact committed to the compensation judge. Here, the compensation judge accepted the restrictions offered by the employee=s treating physician, Dr. Mann, over Dr. Barron=s view that the employee needed no work restrictions.
The appellants repeat the same argument regarding an alleged foundation deficiency in Dr. Mann=s opinion. We have previously rejected that argument in the context of the issue of whether the employee sustained a permanent injury. The argument has even less merit where the issue is one of assessing what restrictions are appropriate for the employee=s condition following the October 2000 work injury.
The issue of the employee=s restrictions was raised in the context of the employee=s entitlement to temporary total and temporary partial disability compensation for certain periods. Dr. Mann, who was the employee=s treating physician for the periods in question, clearly had sufficient foundation to render an opinion on that issue. The compensation judge=s choice between opposing medical opinions is affirmed. Nord, supra, 360 N.W.2d 337, 37 W.C.D. 364. The only
3. Job Search.
The employer and insurer appeal from the award of temporary total disability compensation from October 8, 2002 to January 28, 2003, alleging that the employee did not conduct a reasonable and diligent job search during the period of time for which benefits were awarded. An individual 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. A total disability is temporary when it is likely it will exist for a limited period of time only." Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967). "The injured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail." Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).
The employee was laid off by the employer on October 8, 2002, when the employer determined that it could not accommodate the employee=s restrictions. The employee contacted his local union hiring hall that same day seeking work, but conducted no further job search until some time in January 2003. The compensation judge found that the employee had conducted a reasonably diligent search for work within his restrictions during this period.
The employer and insurer contend on appeal that the compensation judge erred and that the employee=s job search was insufficient as a matter of law. We disagree. This court has previously held that contact with the union hiring hall by a union trades person may support a finding of a reasonably diligent job search in appropriate circumstances. See, e.g., Radika v. Hanna Mining, 56 W.C.D. 52 (W.C.C.A. 1997).
The determination of whether or not an employee=s job search is diligent is a question of fact for the compensation judge to resolve. Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). Here, the employee testified that throughout his 25-year work history as a union ironworker he had previously successfully relied solely on seeking work though his union hall. He also testified that seeking non-union employment could have resulted in loss of his union benefits. After it became obvious to the employee that reliance on the union hall was proving unsuccessful, the employee then sought union work through direct contact with employers and found work through this means in late January 2003.
In view of the employee=s prior history of obtaining work through the union hall and the relatively short period of unsuccessful reliance on that method in the closing months of 2002, we cannot conclude that the compensation judge clearly erred in finding that the employee=s job search activities were sufficiently diligent to support an award of temporary total disability benefits for the period in question.
4. Causal Nexus Between Injury and Wage Loss.
Temporary partial disability benefits are payable where the employee has a physical disability, is able to work subject to that disability, and has an actual loss of earning capacity causally related to the disability. Morehouse v. Geo. A. Hormel & Co ., 313 N.W.2d 9, 34 W.C.D. 314 (Minn. 1981); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).
Once an employee finds post‑injury employment within his restrictions, his actual earnings became presumptively representative of his post‑injury earning capacity. Patterson v. Denny's Restaurant, 42 W.C.D. 868, 875 (W.C.C.A. 1989), citing Einberger v. 3M Co., 41 W.C.D. 727, n.14 (W.C.C.A. 1989). The employer and insurer, however, assert that the presumption is rebutted because, they contend, there is no causal nexus between the employee=s wage loss and his injury and disability.
Specifically, they point to uncontested evidence that the union wage scale for an ironworker in Wisconsin, where the employee found his post-injury employment, is $5.00 less per hour than the comparable union scale paid to union ironworkers in Minnesota. This difference is the sole amount by which the employee=s post-injury wages are less than those he earned while working for the employer. Further, the employee himself admitted that he did not contact the Minnesota ironworkers union hiring hall or perform a search for another ironworker job in Minnesota after being laid off by the employer given the distance to Minnesota from his home in Wisconsin. The employer and insurer argue that, on these facts, any wage loss should have been found, as a matter of law, to be wholly due to factors causally unrelated to the employee=s work injury and disability.
We disagree, and affirm. This court has repeatedly cautioned that in order to rebut the presumption of earning capacity, an employer and insurer must present specific evidence of physically appropriate, better paying work which is actually available in the employee=s labor market. See, e.g., Passofaro v. Blount Constr. Co., Inc., 49 W.C.D. 535 (W.C.C.A.1993) (and cases cited therein). The employer and insurer provided no evidence below that any union ironworker jobs within the employee=s medical restrictions were actually available with Minnesota employers during the period in question. Thus it was merely speculative whether the employee could have attained a higher hourly wage had he sought work in Minnesota.
Further, there was testimony from the employee as well as medical evidence which indicated that driving from the employee=s home in Wisconsin to a job in Minnesota would not have been physically tenable for him on a day-to-day basis as a result of his work injury. Among such evidence, we note that his medical restrictions required that he change positions frequently, and that there are notations in his medical records which indicated that he could not drive for more than one-half hour without increased symptoms, including numbness of the right leg. The compensation judge could reasonably have concluded from this evidence that Minnesota was not within the employee=s labor market because of the effects of his work injury.
Whether reduced earning capacity is attributable to the disability or to some other factor is a question of fact for the compensation judge. Borchert v. American Spirits Graphics, 582 N.W.2d 214, 215, 58 W.C.D. 316, 318 (Minn. 1998). The record in this case provides substantial evidence to support the compensation judge=s determination of a causal link between the employee=s work injury and a post-injury loss of earning capacity. We therefore affirm.