TIMOTHY MILLER, Employee, v. NORTHWEST AIRLINES CORP., and KEMPER INS. COS., Employer-Insurer/Appellants, and HARTFORD LIFE, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 19, 2005
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. Where it was clear, from the judge=s memorandum and from the opinions of the doctors upon whom the judge relied, that the compensation judge reasonably inferred from the doctors= opinions that the doctors deemed the employee=s physical disability total and permanent on a solely medical basis, any search for work was in effect a moot issue regardless of the employee=s Aage, education, training, and experience,@ and the fact that the doctors= opinions did not expressly reference a standard embracing such nonmedical elements did not render those opinions insubstantial as support for the compensation judge=s finding that the employee was permanently and totally disabled.
APPEALS - LAW OF THE CASE; PERMANENT TOTAL DISABILITY - WITHDRAWAL FROM THE LABOR MARKET; PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the only wage replacement benefits effectively at issue in the former proceeding, in which the employee was denied benefits for having withdrawn from the labor market, were benefits up through the date of the hearing, where at the time of that proceeding the employee was still reasonably medically capable of performing at least some work, and where, subsequent to that proceeding, the employee=s condition deteriorated to the point where two doctors and ultimately the judge could reasonably conclude that the employee was totally incapable of work on a purely medical basis, the compensation judge=s award of permanent total disability benefits notwithstanding the absence of any affirmative reentry into the labor market was neither clearly erroneous nor unsupported by substantial evidence.
PRACTICE & PROCEDURE - ADMISSION OF EVIDENCE; EVIDENCE - CREDIBILITY. Where the judge indicated that she would give the employer and insurer four weeks in which to conduct and submit a post-hearing cross-examination of the employee, where the employer and insurer waived that option by subsequent letter to the judge, and where the judge=s arguably diminished opportunity to assess the credibility of a witness appearing by telephone as opposed to in person might just as well have worked to the benefit of the employer and insurer as to their detriment, the compensation judge did not abuse her discretion in permitting the employee to testify by telephone subsequent to the judge=s denial of a motion to compel attendance and arguably without notice that the testimony would even occur.
Determined by: Pederson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: James M. Gallagher, James Michael Gallagher & Associates, Minneapolis, MN, for the Respondent. David J. Klaiman and Tracy E. Tracy, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants. Frederick E. Kaiser, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Intervenor.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's award of permanent total disability benefits. We affirm.
On January 12, 1993, Timothy Miller sustained an injury to his low back in the course of his work as a mechanic with Northwest Airlines Corp. Mr. Miller [the employee] was thirty-three years old on that date and was earning a weekly wage of $725.36. Subsequent to his injury, the employee underwent low back fusion, fusion revision, and refusion surgeries on March 23, 1994, March 25, 1996, and July 8, 1997, respectively. The employee=s low back problems continued, and on May 20, 1999, he underwent an MRI scan that was read to reveal only solid interbody fusions at L4-5 and L5-S1 and a solid dorsolateral fusion at L5-S1, with no posteroperative complication, no nerve root impingement, and Ano evidence of significant arachnoiditis.@ On June 2, 1999, the employee=s surgeon, Dr. James Ogilvie, permanently restricted the employee from working more than twenty hours a week, from more than occasional lifting of up to ten pounds, from more than occasional bending, sitting, and standing, and from doing any twisting, kneeling, squatting, overhead reaching, or climbing. On June 25, 1999, the employee filed a claim petition, alleging entitlement to temporary total or permanent total disability benefits consequent to his work injury on January 12, 1993, commencing June 12, 1999, together with payment of unspecified medical and rehabilitation expenses. The employee apparently amended his petition subsequently, withdrawing his claim for temporary total disability benefits. In late August, 1999, the employee moved from Minnesota to Greybull, Wyoming, a childhood home.
On September 10, 1999, the employee was examined for the employer and insurer by Dr. Gary Wyard, who diagnosed multilevel lumbar degenerative disc disease with three failed lumbar fusions at two levels of the employee=s spine. Dr. Wyard opined that the employee=s January 12, 1993, work injury appeared to have been a low back sprain/strain superimposed upon a degenerative lumbar disc. He opined further that the employee was able to work full time but should be restricted from lifting over forty pounds, should be allowed flexibility in sitting and standing, and should avoid repetitive or prolonged stooping, squatting, bending, twisting, lifting, pushing, or pulling. He concluded further that the employee had reached maximum medical improvement [MMI] from all conditions related to his January 1993 work injury, subject to a related permanent partial disability of 22.5% of his whole bodyB17.5% for the fusion at one vertebral level and 5% for the fusions at the second level--pursuant to Minnesota Rules section 5223.0070, subpart 1D, as scheduled on the date of the employee=s injury.
The matter came on for hearing on March 16, 2000, before Compensation Judge Bernard Dinner, and the record in that proceeding closed on March 28, 2000. By findings and order filed May 23, 2000, Judge Dinner denied the employee=s claim to permanent total disability benefits, concluding that the employee had voluntarily withdrawn from the labor market by moving from Minnesota to Greybull, described by the judge as Aa sparsely populated area where substantially no employment opportunities for him existed,@ quoting Paine v. Beek=s Pizza, 323 N.W.2d 812, 816, 35 W.C.D. 199, 206 (Minn. 1992). Judge Dinner=s decision was subsequently appealed to this court.
In August of 2000, the employee began treatment with Dr. Leland Stanley in Cody, Wyoming, for radicular symptoms in his left leg, and Dr. Stanley ordered an MRI scan and referred the employee to see Dr. Robert Wood in Billings, Montana. The MRI was conducted on September 5, 2000, and was read to reveal in part a probable posterior bony fusion from L4 to the sacrum, with A[n]o evidence for arachnoiditis.@ The employee saw Dr. Wood on September 10, 2000, who diagnosed multiple previous laminectomies and fusion with chronic low back and left leg pain and ordered a myelogram. The myelogram, conducted the following day, revealed no nerve root compression and was also otherwise normal.
The employee=s symptoms continued to deteriorate, and on January 8, 2001, Dr. Stanley signed an AAttending Physician=s Statement of Continued Disability,@ on which he indicated, on separate pages, both that the employee was Anot able to work@ and that this restriction was Apermanent.@ On January 16, 2001, Judge Dinner=s decision of May 23, 2000, denying permanent total disability status, was affirmed by this court. Subsequent to denial of his claim for workers= compensation benefits, the employee received long term disability benefits from the Hartford Life insurance company.
The employee=s left leg radicular pain continued, and on June 27, 2001, Dr. Stanley reiterated that the employee was Aunable to do any significant type of work@ and that Aany standing for an hour at the most leaves [the employee] with significant pain requiring bed rest.@ The employee=s general condition was Ano better@ on September 12, 2001, on which date Dr. Stanley indicated that A[i]f [the employee=s] condition gets worse [we] will consider a morphine pump.@ By November 28, 2001, Dr. Stanley was reporting that the employee Amight qualify for serious disability in every way that I can document at this point in time.@ In the spring of 2002, the employee began complaining of even more severe symptoms, including cervical as well as lumbar radicular problems and lower bowel problems that Dr. Stanley concluded on May 15, 2002, Acould be related to his fundamental disease process and/or his medication.@
On August 8, 2002, the employee was examined by neurosurgeon Dr. John Oakley, who diagnosed Aa mixed neuropathic nociceptive pain syndrome, involving the back and lower extremities,@ with Aevidence of arachnoidal scarring on his MRI scan and myelography,@ referencing Aan MRI scan from 2001" that Ashows a typical clumping of the nerve roots and attachment to the lateral dural walls of arachnoiditis.@
In a memorandum ATo Whom It May Concern@ dated October 7, 2002, Dr. Stanley opined that the employee had Asevere post traumatic neurodystrophy and probable chronic arachnoiditis causing back and leg pain,@ which the doctor saw no sign of getting better and expected Ato gradually get worse over the next few years.@ On that conclusion, Dr. Stanley indicated that A[i]t would be appropriate at this time for [the employee] to try a morphine pump in order to control his chronic pain,@ which the doctor rated at a level seven on a scale of zero to ten. On November 11, 2002, the employee was examined by psychologist Dr. David Gumm, who concluded that the employee was psychologically able to proceed with morphine pump implantation surgery.
On November 19, 2002, the employee underwent an independent medical examination by orthopedic surgeon Dr. David Cook, who issued a Aworking@ diagnosis of arachnoiditis as being the diagnosis that Aseems to best account for [the employee=s] past and present pain progression, as well as his treatment failures, and >atypical= pain syndromes,@ although A[a]rachnoiditis may seem to neatly package [the employee=s] chronic pain syndrome and still be no more accurate than the previous diagnoses.@ Dr. Cook concluded in part that the prerequisites for a morphine pump had been met, with a caveat that support of a psychiatrist with a strong interest in chronic pain management should be made available to the employee. Referencing his own report and Dr. Oakley=s neurosurgical report as support, Dr. Cook concluded further that, as a result of his work-related condition, the employee was totally disabled, quoting as a standard the following Anecessary factors to satisfy the total disability requirements for Arachnoiditis as required by the Social Security Administration and outlined in >The Blue Book=@ (bold face in Dr. Cook=s report):
Disability Evaluation Under Social Security Disorders of the spine 1.04. . . B. Spinal arachnoiditis, confirmed by an operative note or pathology report of tissue biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful dysesthesia, resulting in the need for changes in position or posture more than once every 2 hours.
(Italics and bold face in quoted original.)
On January 3, 2003, the employee was examined for the employer and insurer by Dr. John Dowdle. After performing a review of all available medical records and scans regarding the employee=s low back condition, Dr. Dowdle diagnosed persistent back and leg pain, status post anterior and posterior lumbar fusion, concluding further that, based on review of the employee=s MRI scan of May 1999, there was no evidence of arachnoiditis. Dr. Dowdle did, however, conditionally recommend prescription of a morphine pump with psychiatric evaluation and support, and he related the employee=s need for such a pump to his January 1993 work injury.
On May 5, 2003, the employee was examined again by Dr. Oakley preparatory to installation of a morphine pump. Dr. Oakley noted again that the employee=s MRI scan from 2001 showed Atypical clumping of the nerve roots and attachment to the lateral walls of arachnoiditis,@ and he admitted the employee for the procedure, which was commenced on May 6, 2003, and completed three days later.
On August 5, 2003, Dr. Stanley reported to the employee=s attorney that certain shortness of breath that the employee had been treated for earlier in the year was related to the employee=s morphine therapy for his Asevere and chronic disabling back problem,@ which had ultimately rendered the employee permanently and totally disabled and likely to be requiring a wheelchair within a few months.
On October 21, 2003, the employee filed a claim petition, alleging entitlement to permanent total disability benefits commencing on and continuing from March 17, 2000, together with payment of unspecified out-of-pocket medical expenses, consequent to his work injury on January 12, 1993.
On February 2, 2004, the employee was examined again by Dr. Stanley, who indicated that the employee=s condition had deteriorated Ato the point where any type of travel causes him severe pain.@ He indicated that the employee had severe arachnoiditis, that he could not stand for any significant length of time, and that he would soon require a wheelchair. He indicated that driving to Billings, Montanta, and then boarding a plane for Minnesota would cause the employee severe pain, that flying with his morphine pump would require approval from his neurosurgeon, and that any sort of riding in a car causes him nausea that might result in vomiting.
The matter had been scheduled for hearing on October 6, 2004, and at the pre-trial conference on September 7, 2004, the employee=s attorney indicated that he did not intend to have the employee appear. In response, on September 15, 2004, the employer and insurer filed a AMotion to Compel [the employee=s] Attendance at Hearing.@ In a letter to the employee=s attorney dated September 15, 2004, Dr. Stanley indicated that the employee would be unable to travel from Greybull to Minnesota, noting in particular the employee=s dependence on morphine every six hours and his reliance on a Fentanyl pump. The employee filed an objection to the motion to compel attendance on September 20, 2004. By order filed September 29, 2004, Compensation Judge Peggy A. Brenden denied the motion, ordering that Athe motion to compel the employee=s physical presence in the courtroom at the upcoming hearing is denied@ and that Athe employer/insurer may call the employee as a witness by way of either audio or video deposition at or before the time of hearing@ (underscoring added). At the eventual hearing on October 6, 2004, the principal issue was whether or not the employee had been permanently totally disabled since March 29, 2000, as a result of his January 12, 1993, work injury. Evidence offered at hearing by the employee included the employee=s testimony by telephone apparently without notice until the date of the hearing. That testimony was admitted by the judge over the objection of the employer and insurer, with the provision that, if they felt presently unprepared to cross-examine the witness, the employer and insurer could cross-examine him by telephone at a later date, at the expense of the employee, with the deposition due November 3, 2004, four weeks after hearing. On October 7, 2004, subsequent to conclusion of the hearing on October 6, 2004, counsel for the employer and insurer wrote to the compensation judge, indicating that, while he continued to believe that his client had been Aunduly prejudiced@ by the employee=s testimony at hearing, he did not intend to make a supplemental cross-examination of the employee.
By findings and order filed November 10, 2004, the compensation judge concluded in part that the evidence failed to establish either that the employee was medically unable to work during the period March 29, 2000, through January 17, 2001, or that he made a reasonable and diligent search for work during that period. On those findings the judge denied and dismissed with prejudice the employee=s claim for permanent total disability benefits during the period March 29, 2000, through January 17, 2001. The judge further found, however, that as of January 18, 2001, the employee was medically unable to work and, from that date through the date of hearing, was not required to search for work to remain eligible for wage loss benefits, because such a search would have been futile given the employee=s significant physical limitations due to his January 1993 work injury. On those findings the judge concluded that the employee had been permanently totally disabled from January 18, 2001, through the date of hearing, that the January 1993 work injury was a substantial contributing factor in that disability, and that intervenor Hartford Life was entitled to reimbursement of long term disability benefits that it had paid to the employee since January 18, 2001. The employer and its insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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, Aunless 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 compensation judge found that the employee had become medically unable to work as of January 17, 2001, and that he was thereafter not required to conduct a search for work in order to be eligible for benefits because any such search would have been futile. The employer and insurer contend on appeal that the judge erred in this conclusion, arguing (1) that the judge relied on medical reports that applied an incorrect medical standard, (2) that Judge Dinner=s affirmed finding of voluntary removal from the labor market precludes a subsequent award of permanent total disability compensation without reentry into the labor market, and (3) that the judge erred in permitting the employee to testify at hearing by telephone, having denied the employer and insurer=s motion to compel his attendance.
1. The Legal Standard
The employer and insurer cite Minn. Stat. ' 176.101, subd. 5(b) (1992), as containing the applicable standard for determining permanent total disability on the date of the employee=s work injury. That statute provides that an employee is Atotally and permanently incapacitated@ when Athe employee=s physical disability, in combination with the employee=s age, education, training, and experience, causes the employee to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@ Minn. Stat. ' 176.101, subd. 5(b) (1992). The employer and insurer argue that the compensation judge expressly relied on the expert medical opinions of Drs. Cook and Stanley and that neither of those doctors based their opinions expressly on the standard contained in Minn. Stat. ' 176.101, subd. 5(b) (1992). Instead, they argue, Dr. Cook applied a standard applicable only in social security matters, without any mention of the employee=s work restrictions or ability to work subject to them, while Dr. Stanley identified no standard at all according to which he was asserting his opinion. We are not persuaded.
We acknowledge that neither Dr. Cook nor Dr. Stanley cited the statutory standard for permanent total disability in rendering his opinion that the employee was permanently and totally disabled. Arguably, those doctors rendered their opinions based solely on Athe employee=s physical disability,@ without reference to the elements of Athe employee=s age, education, training, and experience,@ which a judge must normally consider Ain combination with@ that physical disability. It is clear to us, however, from the judge=s memorandum and from the opinions of the doctors, that the compensation judge reasonably inferred from the doctors= opinions that the doctors deemed the employee=s physical disability total and permanent on a solely medical basis - - by itself - - regardless of how young and well educated and trained and experienced the employee might have been. If an employee is deemed by his doctors to be restricted from all work on a solely medical basis, any search for work is in effect a moot issue, regardless of the employee=s Aage, education, training, and experience.@ See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978) (only injured workers who are capable of work are required to affirmatively seek employment as a prerequisite to obtaining total disability benefits); see also Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988) (Aemployees who are capable of work must make a diligent job search to establish total disability@ (emphasis added)). Thus, any nonmedical elements of the standard are in effect moot.
2. Withdrawal from the Labor Market
At Finding 15 of his decision filed May 23, 2000, Compensation Judge Dinner concluded that the employee had withdrawn from the labor market when he moved to Wyoming. The employer and insurer suggest that this finding, affirmed in the course of this court=s decision filed January 16, 2001, permanently precluded the employee=s subsequent receipt of permanent total disability benefits, at least absent reentry into the labor market and some demonstration of a reasonable and diligent job search. We are not persuaded.
The only wage replacement benefits effectively at issue before Judge Dinner were benefits up to the date of the hearing before that judge, based on the employee=s disability up through that date. At the time of the hearing before Judge Dinner, the employee was reasonably still medically capable of performing at least some work. That being the case, the employee=s entitlement to total disability benefits was dependent on his demonstration of a reasonably diligent search for employment. See Redgate, 421 N.W.2d at 733, 40 W.C.D. at 954 (Aemployees who are capable of work must make a diligent job search to establish total disability@). A deliberate move, by an employee capable of work, away from a more promising job market into an evidently less promising one may reasonably be found to be a withdrawal from the labor market, in effect rendering any search for work not reasonably diligent and so disqualifying the employee from receipt of wage replacement benefits. Concluding that the employee was medically capable of working at the time of the proceeding before him and that he had nevertheless withdrawn from the labor market, Judge Dinner made such a finding. Subsequent to the proceeding before Judge Dinner, the employee=s condition evidently deteriorated, to the point where not only Dr. Stanley but also Dr. Cook, and ultimately Judge Brenden, could reasonably conclude that the employee was totally incapable of work on a purely medical basis, that status relieving the employee of any obligation to search for work. The judge dated the employee=s arrival at total medical disability at January 18, 2001, which she suggests was the first date on which Dr. Stanley indicated that the employee was both permanently and totally disabled. It appears to us that the judge=s reference is to the AAttending Physician=s Statement of Continued Disability@ signed by the doctor on January 8 rather than January 18, 2001, but we conclude this apparent inconsistency is not significant and that the judge=s dating of the employee=s permanent total disability was not unreasonable, and therefore we affirm the judge=s award of benefits commencing on that date. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
3. Permission of the Employee to Testify by Telephone
The employer and insurer argue finally that the judge, having denied their Motion to Compel Attendance at Hearing, erred in permitting the employee to testify by telephone, in that his credibility could not be as well scrutinized in the telephone context and in that there had remained ambiguity prior to trial as to whether the employee would even be testifying at all. We are not persuaded.
When the employer and insurer raised this issue at hearing, objecting to the employee=s testimony by telephone, Judge Brenden indicated that she would give them three weeks in which to conduct a post-hearing cross-examination of the employee and a fourth week to submit that deposition into evidence. The employer and insurer waived this option by letter to the judge the day after the hearing. We conclude that this waiver effectively waived any actionable issue as to notice of late-offered evidence. With regard to the judge=s arguably diminished opportunity to assess the credibility of a witness appearing by telephone as opposed to in person, we conclude that any arguable prejudice is at most minimal and might just as well work to the benefit of the employer and insurer as to their detriment. The compensation judge=s admission of the telephone testimony of the employee, particularly given her permission of post-hearing cross-examination by the employer and insurer, was not unreasonable and does not constitute a breach of the judge=s discretion.
Having concluded that the judge did not err as a matter of law with regard to the applicable legal standard or exceed her discretion in permitting the employee to testify by telephone, and having concluded also that it was neither legally erroneous nor factually unreasonable for the judge to find that the employee was medically disabled from all work and that a diligent job search would have been futile for the employee after January 17, 2001, we affirm the compensation judge=s award of permanent total disability benefits commencing January 18, 2001. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 We find in evidence no radiologist=s report on a 2001 MRI scan.