CONSTANCE M. NITZ, Employee, v. ABBOTT NORTHWESTERN HOSP., SELF-INSURED/GALLAGHER-BASSETT SERVS., INC., Employer-Insurer/Appellant, and TWIN CITIES SPINE CENTER, Intervenor.
WORKERS' COMPENSATION COURT OF APPEALS
JANUARY 27, 2004
CAUSATION - SUBSTANTIAL EVIDENCE. Where the opinion of the employee’s treating doctor was that the work injury continues to be a substantial contributing factor in the employee’s need for restrictions, substantial evidence supports the decision of the compensation judge.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the decision of the compensation judge in awarding temporary partial disability compensation where post-injury work with the employer was not available and the employee found other employment within her restrictions.
INTERVENORS; STATUTES CONSTRUED - MINN. STAT. § 176.361, SUBD. 4. Where the motion to intervene was served and filed before the effective date of the 2002 amendment to Minn. Stat. § 176.361, subd. 4, the claim of the intervenors was properly granted despite its failure to attend the hearing.
Determined by: Pederson, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Ronald E. Erickson
Attorneys: Christine L. Tuft and Jennifer M. Spalding, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN for the Appellant. William G. Moore, Attorney at Law, Fridley, MN for the Respondent.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the findings that the employee’s work injury of July 23, 2001 was a substantial contributing cause of her current back problems and restrictions rather than a temporary aggravation of a pre-existing condition which has since resolved. The employer further appeals from the awards of temporary partial disability compensation for various periods, as well as from an order granting payment to an intervenor. We affirm.
The employee, Constance Nitz, was born in 1978 and is currently 25 years old. She graduated from high school in 1997 and completed a surgical technician training program in 1999. Later that year she began working in that capacity for the self-insured employer, Abbott Northwestern Hospital.
Between February and mid-April 2001, the employee treated for trochanteric bursitis and piriformis syndrome of her right hip with Dr. Robin Crandall. An MRI of the employee’s lumbar spine was reviewed on March 9, 2001 and read as normal. The chart notes of that date state “There certainly is no evidence of any disc process.” On April 13, 2001 she was noted to have had an excellent result with steroid injection in the piriformis recess. The employee testified that her symptoms resolved at that time.
On July 23, 2001 the employee sustained an admitted injury to the low back at work when she twisted to the left to pick up a heavy tray of surgical equipment. Her weekly wage as of the date of injury is stipulated to have been $689.53 based on a full time schedule with occasional overtime.
The employee went for treatment to Multicare Associates on July 25, 2001. Her primary complaint was of low back pain, more on the right than left, with some pain into the buttocks on both sides. On examination, Dr. Domino noted that the employee had palpable tenderness on the left and right lumbar spine and that forward flexion and lateral bending and twisting were slightly limited. He diagnosed an acute lumbar strain. The employee was placed on work restrictions which the employer attempted to accommodate with transitional light duty work. She was treated with medications and nine sessions of physical therapy through mid-August 2001.
On August 31, 2001 the employee returned to Dr. Domino and reported that she had started to notice increased right buttock pain with radiation down the back of the right leg to the top of the right foot. There was marked tenderness over the right SI joint area and deep pressure over this area elicited complaints of radiation of pain down the back of the employee’s right leg. Straight-leg raising on the right in the sitting position also elicited radiation of pain down the back of the right leg. Dr. Domino diagnosed a right lumbar strain with right leg radiculopathy and ordered a lumbar MRI scan to rule out a right-sided L5-S1 disc. He suspended physical therapy and continued the employee’s restrictions pending the results of the MRI. The MRI was performed on September 13, 2001. It was read as showing a small posterior disc bulge at L5-S1 and slight posterior element degenerative changes with mild to moderate narrowing of the right neural foramen.
The employee transferred her care at Multicare Associates to Dr. Orrin Mann, an occupational medicine specialist, whom she saw on September 14, 2001. Dr. Mann reviewed the employee’s MRI scan and noted that there was some suggestion of a lesion compatible with an annular tear at L5-S1. He was uncertain whether to assign clinical significance to the minimal findings shown and instead began to focus the employee’s therapy more on treatment for a pelvic joint dysfunction.
In September 2001 the employer transferred the employee to its Cosmetic Care Center in Edina in order to provide her more hours within her restrictions. Her work there consisted of filing, computer work, and putting slides in pockets. She worked about 25 hours a week and was paid workers’ compensation benefits for the difference in hours.
The employee returned to Dr. Mann on October 3, 2001. She was physically about the same. She told Dr. Mann that her work had been requiring her to exceed her restrictions on a regular basis, so that whatever improvement she experienced with physical therapy was cancelled out at work. Dr. Mann noted that biomechanically, the employee showed no pelvic joint dysfunction, but had a very inflamed and tender right SI joint. He took the employee entirely off work and ordered a right SI joint steroid injection, which was performed on October 16, 2001.
The employee returned to Dr. Mann on November 9, 2001 reporting that the injection had not resulted in an immediate improvement but that within three to four hours she had noticed a 60 percent improvement in her symptoms lasting about a week. She was now back to where she was prior to the injection. The employee exhibited dramatically reduced range of motion of the back in extension and flexion. Dr. Mann noted that he no longer saw any evidence of pelvic joint dysfunction, and that he had become increasingly suspicious that discogenic pain was the source of the employee’s symptoms based on her response to the SI injection. He recommended diagnostic discography to help sort out the source of the employee’s symptoms.
On November 28, 2001 the employee was seen at the Center for Diagnostic Imaging for a review of her prior MRI scan and for three level lumbar discography. The September 13, 2001 MRI was reread as showing show various mild degenerative changes at the L1-2 through L3-4 levels, as well as a diffuse annular bulge at L4-5 with mild crowding of the subarticular recess but no compression of the traversing nerve roots and no lateral stenosis. The L5-S1 level was seen to demonstrate mild dehydration and a diffuse annular bulge. Discography was performed at L3-4, L4-5 and L5-S1, and produced strongly concordant low back pain at the latter two levels.
Based on the discogram results, Dr. Mann on December 7, 2001 diagnosed two level lumbar discogenic pain and degenerative disc disease. He noted that the absence of significant extrusion of nucleus material or dye during the discogram suggested annular fissuring without actual rupturing of the annulus fibrosis. He now considered the types of symptoms the employee had reported to be fairly convincing evidence of a discogenic source of her back pain. He recommended that the employee undergo an epidural steroid injection and authorized her to return to work, still under restrictions including no lifting over 20 pounds.
The employee underwent a lumbar steroid injection on December 14, 2001. When next seen by Dr. Mann on January 8, 2002, she reported that the injection had given her worse pain than had the discogram. Her back pain had not improved and she was now having intermittent right leg tingling to the toes. Dr. Mann referred the employee to Dr. Richard Salib at the Institute for Low Back and Neck Care for evaluation. Dr. Salib saw the employee on January 14, 2002. Straight-leg raising was positive for radicular pain at about 30 degrees. He diagnosed degenerative disc disease and recommended that the employee undergo facet nerve injections bilaterally from L3 to the sacrum. If these produced good results, he considered her a candidate for rhizotomy, otherwise, for an IDET procedure.
The employee was seen on January 17, 2002 by Dr. Francis Denis for a second opinion. The employee exhibited an antalgic posture and tenderness at the lumbosacral junction. The right sciatic notch was tender and forward bending was limited to 60 degrees. Straight leg raising was positive on the right at 70 degrees, there was a positive bow string sign on the right side, and sensation was decreased in the right L5 dermatome. In view of the employee’s MRI and discogram findings, Dr. Denis diagnosed a likely annular tear on the right at L5-S1 with a small herniation accompanied by mild L5 radiculopathy. According to Dr. Mann’s chart notes, Dr. Denis offered five options, ranging from surgery through a repeat epidural steroid injection to continued conservative treatment. The employee elected to continue conservative treatment under the supervision of Dr. Mann.
Some time in January 2002 the employer gave the employee a new light duty work assignment as an assistant to its education coordinator. The employee’s hours in this assignment soon increased to full time. The job was not a permanent assignment but, according to the employee’s testimony, the education coordinator was beginning to explore the possibility of a permanent job and a job analysis had been proposed to determine whether the assignment could afford the employee continuing full time work within her restrictions.
At this point the employee’s husband accepted a job in the state of Virginia. In February 2002 the employee resigned her job with the employer to accompany him to that state. She was seen by Dr. Mann on February 5, 2002, shortly before her move. The doctor stated that she was not yet at maximum medical improvement and recommended that further treatment be managed by a physician of the employee’s choosing in Virginia. However, while the employee was in Virginia, she did not obtain any medical treatment. In mid-April 2002 the employee returned to Minnesota. She contacted her QRC about returning to work for the employer. She was advised by the employer to obtain current restrictions from Dr. Denis. After she submitted the restrictions to the employer, she was informed there was no work available within her restrictions.
On May 6, 2002 the employee returned to Dr. Denis reporting that she had continued right leg pain and that her low back pain had started to increase recently. Straight leg raising was again positive on the right, and left straight leg raising was now positive for right buttock pain. Dr. Denis attributed the employee’s complaints to right L5-S1 herniation. He recommended another epidural steroid injection. The epidural injection was performed on May 15, 2002, but the employee obtained no ongoing relief from this procedure. On June 24, 2002 Dr. Denis recommended continued conservative treatment and renewed the employee’s restrictions for another three months.
On May 6, 2002 the employee filed a claim petition alleging entitlement to temporary partial disability from April 16, 2002 and continuing. On July 22, 2002 the employee began a full time job within her restrictions as a radiology assistant with Suburban Radiologic Consultants at $12.50 per hour.
The employee was seen by Dr. Richard Reut, an osteopath, on August 23, 2002 for a medical evaluation on behalf of the self-insured employer. Dr. Reut reported that his examination was normal other than for subjective pain complaints. He diagnosed subjective low back pain and right leg symptoms without objective findings. In his view, the employee’s July 23, 2001 work injury most likely caused a temporary aggravation of a preexisting condition which had since healed. He believed that her current complaints were unrelated to the work injury, that she needed no further treatment or restrictions, and that she had reached maximum medical improvement (MMI) without permanent partial disability. While he acknowledged that the employee’s MRI scan appeared to show a very small disc problem at L5-S1, he considered her pathology unrelated to this finding. He considered the etiology of the disc unclear since she already had back problems prior to the July 2001 work incident.
On September 30, 2002 the employee returned to Dr. Denis reporting a sudden increase in her symptoms a few days before. Her pain had increased in both the low back and leg, and she had bilateral pain going down to her feet. Dr. Denis diagnosed a recurrence of her S1 radiculopathy. He suggested that the employee consider further steroid injections, but she had no interest in this form of treatment based on her prior experience with the injections.
In a letter report dated November 22, 2002 Dr. Denis opined that the work injury of July 23, 2001 had caused an aggravation of a pre-existing degenerative disc disease at L5-S1, and that the aggravation was permanent in nature, having brought on new symptoms of numbness, tingling and leg pain “consistent with the level of herniation as demonstrated on MRI.” He recommended that the employee continue under lifting restrictions.
In February 2003 the employee resigned from her job at Suburban Radiologic and returned to Virginia to be with her husband. After about three weeks, the employee returned to Minnesota. She was able to return to work for Suburban Radiologic, initially as a part-time casual employee. By April 2003, the employee had returned to full time work for this employer, now at $12.75 per hour, as a medical assistant.
On March 14, 2003 Dr. Denis signed a Health Care Provider Report indicating that the employee had reached MMI and was permanently partially disabled to the extent of seven percent of the whole body pursuant to Minn.R. 5223.0390, subp. 4.C(1). The employee continued to treat with Dr. Denis, seeing him again on March 31, 2003 and again a few days before the hearing. On each occasion, the doctor continued to impose work restrictions on the employee’s activities including limiting bending, twisting, kneeling and overhead reaching to occasional, and lifting or carrying to weights no greater than 20 pounds.
The employee’s claim petition was heard by Compensation Judge Ronald E. Erickson on June 5, 2003. In Findings and Order, served and filed June 26, 2003, the compensation judge found that the employee’s July 23, 2001 work injury was a substantial contributing cause of her current back problems and limitations and that she remained under work restrictions as the result of her work injury. He awarded temporary partial disability compensation for the periods from July 22, 2002 though February 1, 2003 and from March 1, 2003 through the date of hearing. Reimbursement to intervenor Twin Cities Spine Center was also awarded. The self-insured employer appeals.
1. Relationship between Restrictions and Work Injury
The compensation judge found that the employee’s work injury on July 23, 2001 was a substantial contributing cause of her back problems and limitations, and that the employee continued to require work restrictions as a result of this injury as of the date of hearing. The self-insured employer contends on appeal that the compensation judge’s findings are unsupported by substantial evidence.
In support of its position on appeal, the employer points to records of prior treatment of low back problems and to the opinion of its medical expert, Dr. Reut, who offered the opinion in August 2002 that the employee’s July 23, 2001 work injury had caused only a temporary aggravation of a preexisting condition which had since healed, that her current complaints were subjective and unrelated to the work injury, and that she needed no further treatment or restrictions.
The compensation judge, expressly accepted the opinions of the employee’s treating physicians who had placed restrictions on the employee continuously for all periods following the injury, including as recently as a few days prior to the hearing. He also expressly accepted the causation opinion of Dr. Denis, who in a letter report dated November 22, 2002 stated that the work injury of July 23, 2001 was the substantial contributing cause of a permanent aggravation to the employee’s pre-existing degenerative disc disease at L5-S1, causing her current symptoms. It is well-settled that this court must affirm a compensation judge’s choice between conflicting medical opinions so long as the opinions relied upon have adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). There is no suggestion in this case that the opinions of the employee’s treating doctors lacked sufficient foundation.
In addition, we note that the employee testified that the symptoms she had during the periods of prior treatment for back and hip problems were different in nature from those after that injury, and that the earlier symptoms had resolved before she sustained the July 2001 work injury. The medical records, including those in evidence regarding treatment of her prior back problems, were consistent with the employee’s testimony. The compensation judge made specific findings (Findings 3 and 4) regarding the resolution of the employee’s prior low back pain in 1998 and her right hip problems in February 2001. In so doing, the compensation judge found the employee’s testimony to be credible. It is the responsibility of the trier of fact to assess the credibility of a witness, and a finding based on this assessment will not be disturbed on appeal unless there is clear evidence to the contrary. Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 42 W.C.D. 421 (Minn. 1989); Tomlin v. Rocco Altobelli, slip op. (W.C.C.A. March 24, 2003).
We conclude that there is substantial evidence to support the compensation judge’s findings that the employee’s work injury on July 23, 2001 was a substantial contributing cause of her current back problems and limitations, and that the employee continued to require work restrictions as a result of this injury as of the date of hearing. We therefore affirm.
2. Award of Temporary Partial Disability Compensation
The compensation judge awarded temporary partial disability compensation for the period from July 22, 2002 through February 1, 2003, corresponding with the employee’s first period of employment with Suburban Radiologic Consultants, and for the period from March 1, 2003 through the date of hearing, corresponding with the employee’s second period of employment with Suburban Radiologic. The self-insured employer appeals both the totality and specific portions of these awards on a variety of grounds, which we will discuss in turn.
An employee is entitled to temporary partial disability benefits “while the employee is employed, earning less than the employee’s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee’s partially disabled condition is due to the injury.” Minn. Stat. §176.101, subd. 2(b). In order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability. See, e.g., Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Hughes v. Case Corp., slip op. (W.C.C.A. February 13, 2003).
We have already affirmed the compensation judge’s findings bearing on the presence of a work-related disability and accompanying restrictions, and need not here further discuss that portion of the employer’s appeal from temporary partial benefits based on the employer’s denial of an ongoing work-related disability.
The employer next asserts that the employee failed to demonstrate any post-injury loss of earning capacity, arguing that the employee’s post-injury earning capacity is presumptively unimpaired because she was paid full wages in the light-duty job which was provided by the employer in January and early February 2002. We note, however, that the employer did not offer this job, or indeed any job within her restrictions, to the employee after her return to Minnesota from Virginia in April 2002. Earnings in a job no longer available to the employee are of little evidentiary value in determining post-injury earning capacity. See, e.g., Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990). The compensation judge did not err in failing to consider the employee’s earnings in the light duty job which the employee performed for the employer in January and February 2002 to be dispositive on the issue of post-injury earning capacity for the periods here in dispute, from and after July 22, 2002, since that job was then no longer available to the employee.
The employer next contends that the employee’s voluntary termination from post-injury work within her restrictions providing full wages severs any causal connection between her injury and any subsequent loss of earning capacity. We disagree. It is true that the employee’s voluntary termination and removal to Virginia was the immediate cause of her wage loss for a period of time following the termination, and the compensation judge here treated this period as a withdrawal from the labor market, denying the employee temporary benefits during the period of her withdrawal. However, it has long been held in Minnesota that an employee who has quit employment and withdrawn from the labor market may redeem her right to wage loss benefits by returning to the labor market and demonstrating a causal connection between the injury and a loss of earning capacity. Johnson v. State, Dept. of Veteran Affairs, 400 N.W.2d 729, 39 W.C.D. 367 (Minn. 1987); Hughes v. Case Corp., slip op. (W.C.C.A. February 13, 2003).
That the employee successfully found suitable professional employment within her restrictions demonstrates a diligent job search for the period of that employment. See, e.g., Fielding v. George A. Hormel Co., 439 N.W.2d 12, 41 W.C.D. 942 (Minn. 1989). The compensation judge could thus reasonably conclude that the employee had reentered the labor market and redeemed her right to wage loss benefits when she began work with Suburban Radiologic Consultants. At that point, in the absence of evidence of better-paying work actually available to the employee, her wages in that post-injury employment became presumptive of her post-injury earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989).
Finally, the employer argues that the amounts awarded as temporary partial disability compensation should be reduced for any weeks in which the employee’s pay stubs show less than 40 hours worked, as the employee did not claim to be medically unable to work 40 hours per week. The employee testified that her diminished hours between her return to Minnesota in March 2003 and the beginning of April 2003, when she had returned to full time work with Suburban Radiologic, reflected a period of employment as a part-time casual employee during which full time hours were unavailable to her. The compensation judge accepted the employee’s testimony. In the absence of any evidence suggesting that the employee may have engaged in avoidance of available work, we do not conclude that the compensation judge erred in awarding temporary partial disability compensation based on actual earnings.
Finally, the employer asserts that the compensation judge improperly relied upon demonstrative evidence to support the award. We note that objection was made and sustained to the use of the employee’s wage calculations sheet as other than demonstrative evidence. However, the pay stubs submitted with the calculations do not fall within the scope of the objection and in fact no substantive objection was made as to their validity or accuracy. We see no indication that the compensation judge improperly relied upon merely demonstrative evidence without underlying evidentiary support.
The compensation judge’s award of temporary partial disability compensation had adequate support in law and fact, and we affirm.
3. Award to Intervenor
The employer argues on appeal that the compensation judge erred in awarding reimbursement to the intervenor. The employer contends that, because the intervenor did not appear at the hearing, the intervenor is barred from recovery under the provisions of Minn. Stat. § 176.361, subd. 4 (2002). That subdivision, as amended in 2002, provides:
Attendance by intervenor. Unless a stipulation has been signed and filed or the intervenor’s right to reimbursement has otherwise been established, the intervenor shall attend all settlement or pre-trial conferences, administrative conferences and the hearing. Failure to appear shall result in denial of the claim for reimbursement.
The first issue for consideration is whether the amended statute applies to the present case. The effective date of the amended statute was August 1, 2002. Minn. Stat. § 645.02. If an amendment to the statute affects the substantive rights of the parties, the amended statute applies only to those cases in which the date of injury occurs after the effective date of the amendment. See Grunzke v. Seaboard Farms, 60 W.C.D. 401 (W.C.C.A. 2000) in which the amendment to the statute limiting the period for the employee to request retraining to 104 weeks was determined to be substantive and applicable only to those cases in which the date of injury arose after the effective date of the amendment. Amendments to the statute which do not affect substantive rights but instead affect the procedures that parties must follow apply to pending cases. See Weidenbach v. Randall Building Supply Co., 38 W.C.D. 47 (W.C.C.A. 1985) which held that the amendment to the statute providing for concurrent payment of temporary partial disability compensation and permanent partial disability compensation applied to the case pending before the court. A statute may be constitutionally retroactive where it relates to a procedural right. Yaeger v. Delano Granite Works, 250 Minn. 303, 84 N.W.2d 368, 20 W.C.D. 27 (1957).
Minn. Stat. § 176.361, subd. 4 now requires the intervenor to attend conferences and the hearing and also changes the consequences of non-attendance.1 We conclude that this amendment does not affect the substantive rights of the parties and is a procedural change.
Because the statute requires the intervenor to attend conferences which would predate the hearing, it would not be appropriate to apply the amended statute only to cases in which the hearing date is after August 1, 2002. Since it is upon the issuance of the order granting intervention that the intervenor’s right to participate in conferences and the hearing is established, we conclude that Minn. Stat. § 176.361, subd. 4 as amended applies to all cases in which the order allowing intervention is served and filed after August 1, 2002. In the present case, the order allowing Twin Cities Spine Center to intervene was served and filed July 30, 2002. We conclude that Minn. Stat. § 176.361, subd. 4 (2002) does not apply to this case.
The compensation judge’s award to the intervenor is affirmed.
1 Prior to the amendment, the subdivision read:
Attendance by intervenor. Unless a stipulation has been signed and filed or the intervenors right to reimbursement has otherwise been established, the intervenor shall attend all settlement or pre-trial conferences and shall attend the regular hearing if ordered to do so by the compensation judge.