GENE TUTTLE, Employee, v. SOCIETY OF ST. VINCENT DE PAUL, UNINSURED, Employer/Appellant, and REGIONS HOSP., NEUROSURGERY ASSOCS., MN DEP=T OF ECON. DEV., BLUE CROSS BLUE SHIELD OF MINN., TWIN CITIES ANESTHESIA ASSOCS., and ST. PAUL RADIOLOGY, Intervenors, and SPECIAL COMP. FUND.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 22, 2005
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY. The employee=s testimony about the manner in which he was injured was not clearly Acontrary to the laws of physics@ and the compensation judge did not err in accepting the employee=s testimony as credible.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Where the evidence as to an earlier date for attainment of MMI was equivocal, the compensation judge did not err in finding that MMI had been reached no later than the date of the employer=s independent medical examination.
ARISING OUT OF AND IN THE COURSE OF - VOLUNTEERS. Substantial evidence supports the compensation judge=s finding that the employee=s injury arose out of and in the course of his employment where he was performing his usual job duties as a thrift store manager and where, although he had reported his time on the date of injury as Avolunteer hours,@ this merely reflected the employer=s timekeeping practices and refusal to pay overtime hours for work performed in excess of 40 hours per week.
CAUSATION - PERMANENT INJURY. Substantial evidence, including medical records, lay testimony and expert medical opinion, supported the compensation judge=s finding that the employee=s low back injury was permanent rather than temporary.
EARNING CAPACITY - SUBSTANTIAL EVIDENCE; JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence supported the compensation judge=s findings that the employee had performed a reasonably diligent job search and that his post-injury employment reasonably reflected his impaired earning capacity, so that the awards of temporary total and temporary partial disability compensation were appropriate.
Determined by: Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Kathleen Behounek
Attorneys: Michael J. Patera, Michael J. Patera, Chartered, Buffalo, MN, for the Appellant. Jason Schmickle and Karen K. Hatfield, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employer appeals from the compensation judge=s determination that the employee sustained an injury to his low back arising out of and in the course of his employment on December 16, 2000, and that he was entitled to permanent partial disability compensation, reimbursement of medical expenses, and payment of wage loss benefits for certain periods. The employer also appeals from the compensation judge=s findings as to the date of maximum medical improvement (MMI). We affirm.
Gene Tuttle, the employee, began working for the employer, the Society of St. Vincent De Paul, in 1989 as a laborer in one of the employer's thrift stores. In 1995 the employee was promoted to manager of a thrift store. His duties included opening and closing the store, processing and marking donated items, assisting customers and keeping business records. The employer's policy required that the store be staffed by at least two people during operating hours from Monday through Saturday. In December 2000 the store had only two paid employees, the employee and his mother, Martha Parkhurst. Since the employee's duties generally took at least eight hours to perform each day, the employee regularly worked more than forty hours per week. However, the employer did not authorize overtime hours, and the employee accordingly listed time in excess of 40 hours as "volunteer time" on his time records, in accordance with a long-standing practice at the employer=s stores. The parties have stipulated that the employee=s average weekly wage was $380.00.
The employee alleged that he sustained an injury to his low back at the thrift store on Saturday, December 16, 2000, at about 5:00 P.M. He was helping a customer load a dresser onto the customer's pickup truck behind the store when the customer lost his footing, causing the employee to bear the full weight of the dresser while twisting to the left. The employee experienced an immediate onset of pain in his right lower back. On December 19, 2000, the employee sought medical attention at the HealthPartners Medical Clinic in Saint Paul, where he was seen by Dr. Cynthia Fay, an internal medicine specialist. He told Dr. Fay that he had injured his back at work lifting furniture and that he continued to have back pain and spasm, particularly with prolonged sitting or standing. The employee noted that he had previously treated with a chiropractor for prior back problems. Dr. Fay gave the employee a prescription for Naprosyn, suggested that he follow up with his chiropractor if his back did not improve, put him on light duty restrictions for the next two weeks, and told him to return or call in if he needed an extension of the work restrictions.
The employee then treated with Dr. Steve Torgerud, his chiropractor, for his low back symptoms on a regular basis from December 29, 2000, through March 2001. Dr. Torgerud diagnosed a lumbar myofascial syndrome associated with a sprain/strain injury.
The employer had instructed the employee to close the store and take a week=s vacation to recover following the December 2000 holiday season. On January 8, 2001, Dr. Torgerud noted that the employee could work now but should avoid lifting as much as possible. The employee returned to work for the employer doing pricing, operating the cash register and moving light merchandise. In February 2001 Dr. Torgerud noted that the employee continued to improve, as his job had not required him to do a lot of lifting, and on March 26, 2001, Dr. Torgerud recorded that the employee=s symptoms seemed to have returned to pre-injury levels. He recommended that further treatment continue on an as-needed basis. According to the employee=s testimony, however, while his symptoms had at first greatly improved during the chiropractic treatment, they returned as before on April 7, 2001, while he was lifting a bag of books at work, and continued to worsen thereafter.
The employee was terminated by the employer on April 9, 2001. A few days later, on April 13, 2001, he sustained a non-work injury to his head, neck and mid-back in a motor vehicle accident. The employee resumed treatment with Dr. Torgerud a few days later. He testified that he continued to have some low back problems during this period but that chiropractic treatment was focused principally on the effects of the motor vehicle accident through April 2001.
The employee was unemployed until July 2001, when he began working assignments for Atlas Temporaries. He testified that his low back pain and leg pain increased while working for Atlas. Atlas closed or went out of business at the end of July, and the employee was again unemployed.
The employee testified that he had deferred further medical treatment for his low back until he had been approved for MinnesotaCare, as the uninsured employer had denied liability for his injury. He did obtain MinnesotaCare coverage, and returned to Dr. Fay on October 3, 2001, reporting that his back pain had worsened and that he now had pain and tingling down his left leg along the lateral aspect of the calf to the knee. Straight leg raising was positive at about 30 degrees. Dr. Fay diagnosed radicular, cervical and lumbar pain due to back injury. An MRI of the employee=s spine on October 11, 2001, showed degenerative vertebral and intervertebral disc disease in the lumbar spine from the L2-3 through the L4-5 levels with associated anterior posterior central canal stenosis, most severe at L4-5.
The employee was then seen by Dr. Jay Brieler at Ramsey Family Physicians Clinic on November 21, 2001, for continued management of back pain. He told Dr. Brieler that he had injured his low back at work lifting a chest of drawers a year before and then had sustained a whiplash type injury to his neck in April in a motor vehicle accident. Although he had experienced periods of intermittent back pain prior to the December 2000 injury, he reported that his back pain after the December 2000 injury had been much more significant and that he now had pain in the back of his leg. Dr. Brieler diagnosed chronic lumbar pain with symptoms consistent with spinal stenosis.
The employee=s physicians referred him to Dr. Jerone Kennedy, a neurosurgeon and spine specialist at Regions Hospital, who saw him on February 11, 2002. The employee=s chief complaint was low back pain, with occasional posterior left lower extremity pain. He told Dr. Kennedy that these problems had been present since December 2000. He also reported occasional pain radiating from the right shoulder into the right hand. Dr. Kennedy concluded that the employee likely had a cervical radiculopathy for which an anterior diskectomy and fusion were appropriate. He recommended continued conservative treatment for the employee=s low back pain while his cervical spine was treated. On February 19 he imposed work restrictions which included no extreme bending or twisting, no lifting more than 10 pounds, and no prolonged sitting or standing.
The employee filed a claim petition on March 14, 2002 seeking wage loss benefits for various dates, reimbursement of medical expenses, and permanent partial disability in an undetermined amount. The employer answered on April 10, 2002, denying primary liability.
On April 30, 2002, the employee underwent an anterior cervical diskectomy and fusion at C6-7. He was entirely off work for reasons related to the cervical condition and surgery until October 28, 2002, when he was released to work with a 25-pound lifting restriction by Dr. Kennedy. A few days later, at the beginning of November 2002, the employee began part time work delivering neighborhood newspapers for Lillie Suburban, Inc.
The employee was examined on behalf of the uninsured employer by Dr. David Boxall on November 26, 2002. Dr. Boxall opined that the employee=s December 2000 work injury had resulted in a temporary back strain which had resolved on March 26, 2001, with attainment of maximum medical improvement on that date. In his view, the employee did not thereafter require work restrictions or further treatment for his low back. The employer served the employee with notice of maximum medical improvement on December 9, 2002.
The employee worked almost full time in a seasonal job as an ice rink attendant for the City of North St. Paul from mid-January through mid-March, 2003. He also continued to deliver fliers for Lillie Suburban.
On March 13, 2003, he returned to Dr. Brieler reporting increasing lumbar pain. The doctor diagnosed chronic degenerative disc disease and referred the employee for physical therapy. The employee began the physical therapy on March 20, 2003. His primary complaint was stiffness and locking up of the low back, preventing him from standing up straight and doing day to day activities. Back flexion and extension were limited and straight leg raising was positive. The employee was discharged from physical therapy on May 15, 2003. On June 20, 2003, Dr. Brieler restricted the employee from lifting, carrying or pushing and pulling more than 30 pounds, and recommended that he change postures as needed.
The employee was evaluated by Dr. Robert Wengler for litigation purposes on September 18, 2003. Dr. Wengler diagnosed the employee with multiple level degenerative disc disease in the low back together with segmental instability and spinal stenosis at L4-5. He rated the employee with a 10 percent permanent partial disability under the workers= compensation disability schedules and recommended permanent lifting restrictions and restrictions on repetitive bending or stooping, heavy pushing or pulling, or working in positions of postural stress. In Dr. Wengler=s opinion, the employee=s work injury on December 16, 2000, had been a substantial contributing cause of the employee=s ongoing low back condition. He concluded that medical and chiropractic treatment to date had been reasonable and necessary.
The employee testified that between April 2003 and July 2004 he earned small amounts of money doing yard care and in self-employment offering a Aguide service@ for hunting, archery and target shooting. However, the employee was unable to continue the guide service activities when the land to which he took clients became inaccessible to him. In June 2004 the employee tried working for the Minneapolis Star Tribune doing newspaper delivery but found this to be too hard for him physically. In July 2004 the employee found a part time job with Romolo=s Pizza working about 20 hours per week. He also continued in his part time job with Lillie Suburban.
The employee=s claims came on for hearing before Compensation Judge Kathleen Behounek on November 3, 2004. Following the hearing, the judge found that the employee sustained a permanent injury to his low back arising out of and in the course of his employment on December 16, 2000, and that he was entitled to permanent partial disability compensation, reimbursement of medical expenses, and payment of wage loss benefits for certain periods. The judge found that maximum medical improvement had been reached no later than the date of service of Dr. Boxall=s report on December 9, 2002. The self-insured employer appeals.
1. Credibility of Employee's Testimony
At the hearing below, the employer disputed the occurrence of the employee=s injury, arguing that the employee was not a credible witness. The compensation judge expressly found the employee credible and accepted his account of an injury sustained while assisting a customer in loading a dresser.
On appeal, the employer argues that the injury as described by the employee=s testimony is Amechanically impossible" and "contradicted by physics,@ such that the compensation judge's reliance on the employee's testimony was manifestly unreasonable. The employer characterizes the employee's testimony as describing an incident in which he and a customer were each carrying one end of a five-foot-long dresser, with its back parallel to the ground. The employer contends that the employee could not have held up a five-foot-long dresser, carried with its back parallel to the ground, from one end. However, the transcript reveals that the employee did not assert that the dresser being carried was five feet long, rather that it was five feet high. Further, in his cross-examination testimony, he specifically denied that the dresser was being carried with its back parallel to the ground. He explained how it was carried using gestures, stating "we had it right here coming to here (indicating)." We cannot see and interpret his gestures, but the compensation judge could. We cannot conclude from the transcript that the employee's description of the way in which the injury occurred, including the gestures viewed by the compensation judge, involved a "mechanically impossible" situation.
The employer also points to various factors which, it contends, weigh against the employee's credibility. For example, purchases at the store on the date of the injury were few and none were keyed as furniture. The employer also suggests that, as the employee=s store was slated for closure, he might have been motivated to fabricate an injury rather than take a transfer to a non managerial position. Considerable testimony was taken exploring such motive and credibility issues. The employee also presented evidence and testimony in explanation of the various discrepancies and allegations. The weight of this evidence was for the compensation judge, who found the employee credible. Generally, "[a]ssessment of witnesses' credibility is the unique function of the trier of fact." Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989). We therefore affirm.
2. Whether the Employee=s Injury was Sustained in the Course of Employment
Minn.Stat. '176.011, subd. 16, defines a compensable Apersonal injury@ under the workers= compensation act as an injury Aarising out of and in the course of employment . . . while engaged in, on, or about the premises where the employee=s services require the employee=s presence as a part of that service at the time of the injury and during the hours of that service.@ An employment relationship exists wherever a person Aperforms services for another for hire.@ Minn.Stat '176.011, subd. 9. This definition, however, normally does not extend so far as to include a volunteer performing services without an expectation of payment. Preese v. Boy Scouts of America, 283 Minn. 284, 167 N.W.2d 737, 24 W.C.D. 863 (1969).
The employer points out that the employee had completed his 40 hours of weekly paid employment by the date of injury and entered his time on that date as that of a volunteer. The employer further points out that the injury occurred after the store=s usual Saturday closing time. Accordingly, they argue, the compensation judge erred in finding that the employee=s injury was sustained within the course and scope of his employment.
The compensation judge, on the other hand, noted that the employee was expected to perform certain duties as manager of the store. Time records and the employee=s testimony indicate that it generally took him more than 40 hours per week to finish these duties, but the employer did not pay overtime hours and required that employees report no more than forty hours per week as paid hours on time records. There was testimony that the usual practice both at the employee=s store and at other stores was that work above forty hours was to be reported as volunteer time. There was also uncontradicted testimony that the employer required the store to be open and staffed by at least two people each day from Monday through Saturday, but would only authorize the employee to retain two paid employees, himself and Mrs. Parkhurst.
The compensation judge also noted that the employee performed exactly the same job duties on Saturdays that he did on the other days of the week. She reasoned that since the hours were reported on a Monday through Sunday basis, and the employee had generally reached the 40 hours he was permitted to report as paid time by Saturday, the attribution of his hours that day as volunteer time was simply the result of the way the employee=s time records were required to be kept and not reflective of an intent by the employee to provide gratuitous services separate from the duties of his regular employment.
As to the fact that the employee was injured after the store=s posted closing hour, there was testimony, including that of the employer=s own president, Darrell G. Bach, that a store manager=s job included a number of duties which might require him to work past the posted closing time. Among these, it was the employer=s policy that customers who were in the store at closing time be allowed to stay past that time to complete their purchases. Mr. Bach also testified that it was within each store manager=s discretion to assist customers who needed help carrying their purchases to their vehicles.
Whether an injury arose out of and in the course of employment is generally a question of fact for the compensation judge. Franze v. National Delivery Serv., 49 W.C.D. 148 (W.C.C.A. 1993); Jolitz v. Technical Erectors, Inc., slip op. (W.C.C.A. Apr. 5, 2005). The compensation judge=s finding on this issue has substantial support in the record, and we affirm.
3. Date of MMI
In his November 26, 2002 report, Dr. David Boxall offered the opinion that the employee had reached MMI, and further opined that, based on the records of the employee=s chiropractor, the employee likely reached MMI as of March 26, 2001. The employer served the employee with Dr. Boxall=s report on December 9, 2002.
The compensation judge found that maximum medical improvement had been reached by the date of service of Dr. Boxall=s report on December 9, 2002 and was effective with the service of MMI by the employer. However, the compensation judge apparently did not accept Dr. Boxall=s opinion that MMI had been reached as early as March 26, 2001. On appeal, the employer contends, in effect, that the judge should have accepted Dr. Boxall=s opinion in its entirety.
Maximum medical improvement is defined as "the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability." Minn. Stat. ' 176.011, subd. 25. Whether MMI has been reached is a question of ultimate fact to be determined by the compensation judge. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528‑29, 41 W.C.D. 634, 639 (Minn. 1989). Generally, the burden of proving MMI is on the employer and insurer. DeNucci v. National Steel Pellet, slip op. (W.C.C.A. Aug. 28, 2002). MMI is legally effective only as of the employer or insurer=s service or the employee=s actual receipt of a written medical report indicating attainment of MMI. Minn. Stat. '176.101, subd. 1(j).
Since there is no evidence of any receipt or service of a medical report evidencing MMI prior to the employer=s service of Dr. Boxall=s report, there would appear to no legal significance in this case to a finding that the employee had actually reached MMI prior to Dr. Boxall=s report. Dr. Torgerud, the employee=s chiropractor, did note on March 26, 2001, that the employee=s symptoms seemed to have returned to pre-injury levels. However, the employee=s motor vehicle accident took place only a few weeks later, and the employee=s chiropractic treatment thereafter focused principally on his cervical symptoms, so that the medical records do not clearly indicate whether the employee=s low back symptoms had subsided for any appreciable period. After the employee qualified for MinnesotaCare, he returned to Dr. Fay on October 3, 2001, to seek further treatment for his low back symptoms, which he reported had continued to worsen. The compensation judge could reasonably have concluded Dr. Torgerud=s March 26, 2001, chart note was insufficient evidence of significant lasting improvement so as to clearly demonstrate MMI had already been reached.
4. Permanent vs. Temporary Injury; PPD
The compensation judge found that the employee's December 2000 work injury was permanent, rather than merely temporary, in nature, accepting the opinion of Dr. Wengler over that of Dr. Boxall. The compensation judge also accepted Dr. Wengler=s opinion that the employee=s work injury substantially contributed to a 10 percent permanent partial disability. The employer does not contest the extent of the permanency, but disputes a causal relationship to the injury on the basis that the compensation judge should have found that the work injury was temporary in nature.
Generally, this court must affirm a compensation judge=s choice between contrary expert medical opinions unless the opinion relied upon is without adequate foundation. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employer contends on appeal that Dr. Wengler=s opinion had an inadequate foundation, asserting that it was Abased upon an insufficient history@ which Aassumed ongoing low back complaints@ from the date of injury through the date of Dr. Wengler=s examination. The employer points out aspects of the medical records and the employee=s testimony which might support a contrary conclusion.
We agree with the employer that the evidence in the case could support a variety of contradictory findings. Clearly, Dr. Wengler and Dr. Boxall reached different conclusions from their interpretation of the records and the employee=s history as to the extent to which the employee=s symptoms were ongoing. Neither doctor treated the employee and both depended on the employee=s history and the medical records, in addition to their own examinations, in rendering their opinions as to whether the employee=s injury was temporary or permanent. Both doctors note in their reports that they reviewed essentially the same medical records, including the records of Dr. Torgerud on which Dr. Boxall largely based his opinion. Dr. Wengler simply interpreted the significance of Dr. Torgerud=s records differently. Where two experts plausibly reached different conclusions from the same records, the issue remains one of a difference in expert opinion rather than one of a lack of foundation. We affirm.
5. Temporary Benefits
The compensation judge found that the employee=s non-work cervical injury was an intervening cause of the employee=s disability and loss of income until October 28, 2002, when he was released to return to work following his cervical spine surgery. The compensation judge determined that the employee thereafter conducted a reasonably diligent job search and awarded temporary total disability compensation from October 28 to November 1, 2002. She further found that the employee=s actual earnings since November 1, 2002, were an accurate reflection of his earning capacity, and awarded temporary partial disability compensation from November 1, 2002, through the date of hearing. The employer disputes the finding of a reasonably diligent job search and requests that the compensation judge=s awards of temporary total and temporary partial disability benefits be vacated.
a. Temporary Total Disability
An employee who is able to work must generally conduct a reasonably diligent job search to establish entitlement to temporary total disability benefits. Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). A diligent job search is a search that is reasonable in light of all the facts and circumstances of the case, including the rehabilitation assistance provided to the employee. Whether an employee has engaged in a reasonably diligent job search is a question of fact for determination by the compensation judge. Tomlin v. Rocco Altobelli, slip op. (W.C.C.A. Mar. 24, 2003).
In the present case, the employee found part-time work within a week of his release by Dr. Kennedy on October 28, 2002. The compensation judge could reasonably conclude that this demonstrates a diligent job search for the brief period of time for which she awarded temporary total disability benefits. See, e.g., Fielding v. George A. Hormel Co., 439 N.W.2d 12, 41 W.C.D. 942 (Minn. 1989).
b. Temporary Partial Disability
Temporary partial benefits are payable while an employee is working and "earning less than [his] weekly wage at the time of injury, and the reduced wage the employee is able to earn in [his] partially disabled condition is due to the injury." Minn. Stat. ' 176.101, subd. 2(b). To establish entitlement to temporary partial benefits the employee must show (1) a physical disability, (2) ability to work subject to the disability, and (3) an actual loss of earning capacity that is causally related to the disability. Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 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). The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability. Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).
As a general rule, an employee=s post‑injury earnings are presumed to be an accurate reflection of the employee=s ability to earn or 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). Whether wage loss during part‑time employment is a result of the personal injury is generally a question of fact. Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995). A reasonable and diligent job search is not a legal prerequisite to an award of temporary partial disability benefits but is evidence which the compensation judge may consider in determining whether the employee=s wage loss is causally related to the work. Stauty v. Luigino=s, Inc., 52 W.C.D. 119 (W.C.C.A. 1994).
The compensation judge awarded temporary partial disability compensation from November 1, 2002, to the date of hearing. Throughout the entire period, the employee worked part-time for Lillie Suburban delivering newspapers. In December 2002 the employee obtained an additional, seasonal job with the City of North Saint Paul in which he averaged close to full-time hours until mid-March, 2003. After this job ended, the employee tried to develop a guide business and did have some earnings in self-employment. When it became apparent that the guide service business was not tenable, the employee tried an additional newspaper delivery route for the Minneapolis Star & Tribune in June 2004, which turned out to be too difficult for him as a result of his low back condition. He then obtained a part-time job with Romolo=s Pizza in July 2004.
The employer raises various objections to the quality and extent of the employee=s job search activities but offered no evidence of any better-paying work actually available to the employee which might demonstrate a different post-injury earning capacity. 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.
 Several specific categories of volunteer workers have been brought within the coverage of the act by explicit inclusion within numbered subparts of Minn.Stat. 176.011, subd. 9. However, none of these specific categories are relevant to the present case.