JOHN M. KUBIAK, Employee, v. RANGERS SEC., INC., and MIGA adm=d by GAB ROBINS, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 11, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee sustained a diminution in earning capacity as a result of his work-related injury and was entitled to payment of temporary partial disability benefits.
Determined by Johnson, C.J., Wilson, J., and Pederson, J.
Compensation Judge: Jeanne E. Knight
Attorneys: Richard J. Sullivan, McCollum, Crowley, Moschet & Miller, Ltd., Bloomington, MN, for Appellants. Mark J. Fellman, Attorney at Law, St. Paul, MN, for respondent.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s finding that the employee sustained a diminution in earning capacity as a result of his personal injury and the award of temporary partial disability benefits. We affirm.
John M. Kubiak, the employee, sustained a personal injury on November 13, 2000, while employed by Rangers Security, Inc., the employer, with claims assumed by the Minnesota Insurance Guarantee Association (MIGA) administered by GAB Robins. Prior to his injury, the employee worked three twelve hour shifts one week and four twelve hour shifts the following week. The compensation judge made no finding as to the employee=s weekly wage on the date of his injury.
Following his personal injury, the employee sought treatment from Dr. Barsanti at East Metro Family Practice Clinic complaining of headaches and dizziness. Dr. Barsanti prescribed physical therapy and, in January 2001, referred the employee to Dr. Sherief A. Mikhail at Physicians= Diagnostics & Rehabilitation. The employee then complained of neck and low back pain with pain in the left arm and both legs. Following a physical examination, Dr. Mikhail diagnosed nonspecific cervical spine pain, regional low back pain, deconditioning syndrome and headaches and prescribed a rehabilitation program.
A cervical MRI scan on January 4, 2001, showed mild degenerative disc changes at C5-6 with mild to moderate foraminal stenosis at that level. On March 7, the employee saw Dr. Richard Foreman, a neurologist, on referral from Dr. Barsanti. The doctor recommended medication for the employee=s recurring head and neck pain and encouraged the employee to continue his physical therapy.
After completion of the physical therapy at Physicians= Diagnostics & Rehabilitation, the employee was placed on a work-hardening program. By August 2001, the employee was working three nine hour shifts per week but told Dr. Mikhail that as he increased his hours, he experienced more neck and upper back pain with more frequent headaches. Dr. Mikhail released the employee to work three nine hour shifts per week.
In November 2001, the employee was seen by Dr. Todd Hess at United Pain Center on referral by Dr. Barsanti. The employee=s chief complaint was neck pain and headaches since November 13, 2000. Dr. Hess diagnosed cervical facet disease with headaches, Aoccipital neuralgia in nature,@ and prescribed cervical facet blocks, bilateral occipital nerve blocks, neuropsychometric testing and continued physical reconditioning. (Pet. Ex. A.) In January 2003, Dr. Hess gave the employee permanent restrictions of 8 1/2 hours per day, three days per week.
In December 2002, the employee was examined by Dr. Matthew Monsein at the request of the insurer. The doctor obtained a history from the employee, reviewed medical records and conducted a physical examination which was normal with the exception of some slightly decreased range of motion. The doctor concluded the employee suffered a cervical strain and rated a 3.5 percent whole body disability. Dr. Monsein opined the employee could return to work without restrictions and was physically capable of working three twelve hour shifts. Finally, Dr. Monsein concluded the employee had reached maximum medical improvement.
In February 2002, the employee underwent a neuropsychological consultation with Dr. George Montgomery at the request of Dr. Hess. The employee was given numerous intelligence, learning, comprehension and memory tests, including an MMPI. Dr. Montgomery concluded the Aassessment was rendered unreliable by [the employee=s] reactions to testing and resulted in false positive findings that under-represented his abilities.@ (Resp. Ex. 4.) The doctor found no compelling evidence of any disability on a neuropsychological basis.
The employee=s claim for temporary partial disability benefits was heard by a compensation judge at the Office of Administrative Hearings. In a Findings and Order filed September 4, 2003, the compensation judge found the employee had sustained a loss of earning capacity as a result of his work injury on November 13, 2000, and awarded the claimed wage loss benefits. The employer and insurer appeal.
The employer and insurer argue substantial evidence does not support the compensation judge=s finding the employee suffered a loss of earning capacity as a result of his personal injury. They contend the sole evidence of any disability is some minimal muscle spasm and decreased range of motion together with subjective complaints of pain. Accordingly, the appellants ask this court to reverse the compensation judge=s award of temporary partial disability benefits. We are not persuaded.
Dr. Monsein, the independent medical evaluator, rated a 3.5 percent permanent disability based on loss of range of motion. The employee testified he experiences daily headaches of varying intensity which affect his ability to work. Prior to his injury, the employee had a real estate business which he discontinued after his personal injury. The employee testified he feels he is not capable of working more than three 8 1/2 hour shifts per week. Dr. Hess, after treating the employee for more than a year, permanently restricted his hours of work to three 8 1/2 hour shifts per week. The appellants= do not assert nor can we conclude that Dr. Hess=s opinion lacked foundation. While Dr. Monsein concluded the employee could work without any restrictions, it is the function of the compensation judge to choose between conflicting expert opinion. See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Substantial evidence supports the decision of the compensation judge and it must, therefore, be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
 See Minn. R. 5223.0370, subp. 3.B.