KRIS HAHN, Employee/Appellant, v. GRACO, INC., SELF-INSURED, adm=d by ASU RISK MGMT. SERVS., Employer.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 17, 2006
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Where the only physician indicating that the employee had reached maximum medical improvement subsequently rescinded his opinion, and the employee was scheduled to undergo surgery the day after hearing, the compensation judge erred in concluding that the employee had reached maximum medical improvement.
CAUSATION - PERMANENT AGGRAVATION; MEDICAL TREATMENT & EXPENSE - SURGERY. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s work injury permanently aggravated the employee=s underlying condition and that recommended surgery was reasonable, necessary, and causally related to the work injury.
Affirmed in part and reversed in part.
Determined by: Wilson, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Lawrence C. Miller, Miller & Carlson, Minneapolis, MN, for the Appellant. James S. Pikala & Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s findings that the employee reached maximum medical improvement, that the employee did not make a diligent search for work, and that the employee was not medically unable to continue working beginning on January 31, 2005. The self-insured employer cross-appeals from the judge=s findings that the employee=s work injury resulted in a permanent aggravation of an underlying condition and that proposed surgery is reasonable and necessary. We reverse the judge=s finding on maximum medical improvement and affirm the remaining findings.
The employee sustained a work-related injury on December 16, 2003, while working for Graco, Inc. [the employer], which was self-insured for workers= compensation purposes. He was seen in the emergency room of North Memorial Health Care on December 27, 2003, complaining of left flank, back, and left leg pain. The employee described the pain as similar to the pain he had experienced when he had kidney stones. He indicated the pain had started Aabout a week ago@ and had become progressively worse. The discharge diagnosis was left lower extremity radiculopathy.
The employee was treated by Dr. Joseph Gasik on December 29, 2003, for complaints of mid to lower back pain radiating down his left leg, which had begun at work on December 16, 2003. An x-ray of the lumbar spine showed some L4-5 disc space narrowing. Dr. Gasik took the employee off work and prescribed medications. The employer admitted liability for the work injury and began paying temporary total disability benefits.
When the employee returned to Dr. Gasik on January 5, 2004, his symptoms were improved; however, the doctor noted limitation of range of motion in the back and a minimal diminished sensation in the lateral aspect of the left foot. The employee=s pain apparently increased greatly the next day, and an MRI revealed severe impingement upon the foraminal segment of the left L5 nerve root due to foraminal disc herniation, vertical interspace collapse, and L5-S1 spondylolisthesis. The MRI also disclosed a substantial central disc herniation at L5-S1, with only minimal effacement of the ventral thecal sac and no S1 nerve root displacement, and bilateral spondylolysis with 10% spondylolisthesis of L5 upon S1.
The employee was seen by orthopedic surgeon Paul Crowe on January 13, 2004. According to the history recorded by Dr. Crowe, the employee had been bending over at work on December 16, 2003, when his back Apopped.@ Dr. Crowe diagnosed L5-S1 spondylolisthesis and a herniated disc at the same level. He reported that the employee would be a surgical candidate but had Adecided to try an epidural injection on the left at L5-S1 first.@ The employee returned to Dr. Crowe on February 10, 2004, at which time the doctor noted that the injection had seemed to have helped the employee. He also noted that the employee was not ready to go back to work as he was still having too much sciatic pain and stated that the employee Adoesn=t want another shot, nor does he want surgery.@ He put the employee on tapered prednisone for nine days.
When he returned to Dr. Crowe on February 24, 2004, the employee indicated that he felt much better and was ready to return to work. Dr. Crowe offered to recommend work restrictions, but the employee said that his regular job was easier than light duty, and he was therefore released without restrictions.
The employee did return to work in his regular job on February 25, 2004, and the employer discontinued temporary total disability benefits. On April 5, 2004, Dr. Crowe completed a health care provider report indicating that the employee had reached maximum medical improvement [MMI] as of April 3, 2004, his final diagnosis being L5-S1 spondylolisthesis and herniated disc. It was Dr. Crowe=s opinion that the employee=s injury was caused, aggravated, or accelerated by the work injury. The employee went without further medical treatment until July 29, 2004.
The employer provided lifts, which reduced the bending and stooping required by the employee=s job, and the employee modified his job further to limit lifting. He was able to work without time off due to his condition. However, at some point, the epidural injection started to wear off, and the employee=s symptoms increased. The employee returned to Dr. Crowe on July 29, 2004, complaining that the pain had returned. Dr. Crowe discussed the possibility of surgery, but the employee elected instead to undergo a repeat left L5-S1 epidural steroid injection, which was performed on August 17, 2004. The employee obtained symptom relief from that injection and continued to perform his usual duties at work.
The employee was terminated by the employer on December 8, 2004. The employee was told that he was being terminated for insubordination. When seen by Dr. Crowe again on January 31, 2005, the employee complained that his low back pain and radiculopathy were getting worse. The doctor noted that the employee was a good surgical candidate and would require a decompression and instrumented spinal fusion. The employee indicated that he wanted to look into disc replacement surgery and was referred to Dr. Ensor Transfeldt.
Dr. John Dowdle performed an independent medical examination on April 11, 2005, and diagnosed the employee as having mechanical low back pain, spondylolisthesis with degenerative disc at L5-S1, and radiculitis at L5 on the left. He opined that the spondylolisthesis and degenerative disc were pre-existing but that the radiculitis was a new condition related to the work injury. He also opined that the employee had not reached MMI, that the employee had a permanent physical impairment, and that a decompression and fusion were reasonable treatment, concluding that the need for the decompression and fusion Ais substantially related to the preexisting condition, but there was a permanent aggravation that occurred on December 16, 2003, that necessitated additional care and treatment.@ He recommended restrictions on lifting, bending, and single-position activities.
The employee returned to Dr. Crowe on June 6, 2005, at which time the doctor noted that the employee had an upcoming appointment with Dr. Transfeldt. At his appointment with Dr. Crowe, the employee indicated that he was thinking that he would go ahead with the fusion and decompression unless Dr. Transfeldt recommended the disc replacement. Dr. Crowe gave the employee a note indicating that he was able to work with some permanent restrictions on bending, squatting, kneeling, pushing, pulling, lifting, carrying, and overtime.
When the employee was examined by Dr. Transfeldt on June 10, 2005, Dr. Transfeldt discussed treatment options, including continued conservative treatment, with occasional epidural steroids, and anti-inflammatories. It was Dr. Transfeldt=s opinion that surgery would be a last resort when conservative treatment had failed. Dr. Transfeldt opined that the employee would not be a candidate for artificial discs and recommended a decompression and fusion at the L5-S1 level.
On November 14, 2005, Dr. Crowe wrote a letter to the employee=s attorney, stating that the employee=s spondylolisthesis was a preexisting condition but that the employee had suffered a permanent aggravation of that condition on December 16, 2003, that that injury was a substantial contributing cause of the employee=s present condition, and that the recommended surgical procedure was medically necessary because the employee had failed conservative treatment. Dr. Crowe also opined that the employee had not reached MMI and would reach it once he recovered from the surgery. He stated that the employee was temporarily partially disabled and referred to the work restrictions that he had given the employee on June 6, 2005.
Dr. Dowdle issued a follow-up report on November 15, 2005, after reviewing additional medical records. He noted that there was no substantial medical treatment after the work injury and opined that, at most, the injury of December 2003 was a temporary aggravation of the employee=s underlying degenerative disc condition. He related the L5 nerve root problems to the spondylolisthesis and stated, Aif there had been a substantial acute event relative to the fall, then the symptoms would have been persistent and medical care would have been continuous after that time.@ He reiterated that, if the employee was having persistent symptoms of L5 radicular pain, the recommended decompression and fusion were reasonable treatment but were not related to the work injury. Dr. Dowdle did not readdress the issue of MMI.
The employee=s claim petition and amended claim petition came on for hearing on November 16, 2005. The employee=s surgery was scheduled for the next day. At the time of hearing, the employee was claiming entitlement to temporary total disability benefits from and after January 31, 2005, a rehabilitation consultation, and approval for the scheduled surgery. In findings and order filed on January 11, 2006, the compensation judge found that the employee had reached MMI on April 5, 2004, based on the report of Dr. Crowe; that the employee had been terminated from his employment with the employer on December 9, 2004, for reasons unrelated to the work injury; that the termination occurred later than 90 days post MMI; that the work injury had resulted in a permanent aggravation of the employee=s underlying condition and had substantially contributed to the need for the surgery proposed by Dr. Crowe; that the employee had not been medically unable to continue working from January 31, 2005, to date of hearing; and that temporary total disability benefits may not be recommenced where the employee was not medically unable to continue working. The judge also found that the employee had failed to prove that he had made a reasonable and diligent search for work within his restrictions. The employee appeals and the employer cross appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
MMI is defined as Athe 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.
The compensation judge found that the employee had reached MMI as of April 5, 2004, when Dr. Crowe issued his report indicating that the employee had reached MMI. Acknowledging that Dr. Crowe had subsequently sent a letter on November 14, 2005, stating that the employee had not reached MMI, the judge went on to observe that Ahe did not specify that his initial opinion was rescinded.@ The employee contends that substantial evidence does not support the judge=s finding of MMI. We agree.
Dr. Crowe=s April 2004 MMI report was issued almost two months after he released the employee to return to work. While the doctor released the employee without formal restrictions, it appears that he did so at the employee=s request, and the employee testified that he altered the amount of weight he lifted at one time and that the employer had altered his worksite further to reduce the need for stooping and bending. Treatment records reflect that Dr. Crowe was still recommending surgery at the time he released the employee to return to work but that the employee did not want surgery.
The updated medical opinions before the compensation judge in January of 2006 included the April 11, 2005, report of Dr. Dowdle, stating that the employee had not reached MMI, and Dr. Crowe=s November 14, 2005, letter, also stating that the employee had not reached MMI. In addition, the compensation judge had the November 15, 2005, fax of attorney Lawrence Miller to Dr. Crowe, reminding Dr. Crowe that he had indicated in April of 2004 that the employee was at MMI. Mr. Miller asked Dr. Crowe if the employee had in fact reached MMI on April 3, 2004, or anytime thereafter, and Dr. Crowe responded that the employee had not. Also, both Dr. Crowe and Dr. Dowdle were recommending surgery, and that surgery was scheduled for the day after the hearing. Proposed surgery may be a factor to consider in determining MMI. Wilson v. Decker Lumber Co., 46 W.C.D. 319 (W.C.C.A. 1991). Dr. Crowe=s letter of November 14, 2005, stating that he recommended surgery and that the employee was not at MMI, and his fax of November 15, 2005, clearly constituted a recision of the doctor=s earlier MMI opinion. Under these circumstances, we believe the compensation judge=s finding as to MMI was premature. We therefore reverse the judge=s finding on this issue.
2. Medically Unable to Continue Working
Temporary total disability benefits were paid from December 9, 2003, through February 24, 2004, when the employee returned to work without restrictions. At the hearing, the employee was claiming temporary total disability benefits continuing from January 31, 2005. The compensation judge found that Minn. Stat. '176.101, subd. 1(e)(2), a recommencement statute, did not apply, because the employee was not medically unable to continue at a job as of January 31, 2005, as claimed. The judge further found that, even if the employee had been medically unable to continue at a job at that time, the employee had not been working and, pursuant to Melin v. Lakehead Constructors, slip op. (W.C.C.A. Aug. 26, 2003), the recommencement statute applies only if the employee is actively employed upon becoming medically unable to work. The employee agrees that this recommencement statute is applicable only if the employee has reached MMI and was actively employed when he became medically unable to continue. Given our reversal of the judge=s finding of MMI, Minn. Stat. '176.101, subd. 1(e)(2) is inapplicable, and this issue is moot. See Hanson v. Team Pers. Serv., slip op. (W.C.C.A. May 7, 2004).
3. Temporary Total Disability
The employee treated with Dr. Crowe on January 31, 2005. Dr. Crowe, however, did not indicate that the employee was physically disabled from working at that time, nor did he place restrictions on the employee=s work activities. Therefore, the judge=s denial of temporary total disability benefits beginning on January 31, 2005, is supported by substantial evidence.
The employee was not subject to any formal restrictions until Dr. Dowdle first recommended them on April 11, 2005. An employee who has been released to return to work must make a reasonably diligent search for work in order to establish temporary total disability. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). The employee contends that substantial evidence does not support the judge=s finding that the employee did not make a reasonable and diligent search for work. It is the employee=s position that he Adid what he could,@ given his lack of a driver=s license, reliance on public transportation, and lack of rehabilitation assistance. We are not persuaded.
In his deposition, the employee apparently testified that he checked for work at three different temporary agencies and five machine shops after January 31, 2005. At hearing, he testified that he searched for work for two to three days a week for four or five weeks in January and February of 2005. He estimated that he actually completed twelve to fifteen applications for employment. After February of 2005, the employee decided to pursue self employment as a franchise owner and made several trips out of state to investigate purchasing a franchise.
The issue of whether the employee made a reasonable and diligent search for work is generally a question of fact for the compensation judge to resolve. Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989). The absence of rehabilitation assistance is an element to be considered in evaluating the diligence of a job search, but it does not relieve the employee of the burden of proving a diligent job search. Mattson v. State, Dep=t of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992). The employee provided no evidence that his lack of a drivers= license or reliance on public transportation impacted his job search in any way. Given that he looked for work for only two to three days a week for a period of four to five weeks and then focused solely on self-employment, we cannot say that the judge=s finding was clearly erroneous or unsupported by the record as a whole. We therefore affirm that finding as well as the resulting denial of temporary total disability benefits.
4. Permanent Injury
The employer cross-appeals from the compensation judge=s determination that the December 2003, work injury permanently aggravated the employee=s underlying condition, contending that the judge erred in relying on the opinions of Dr. Crowe, because those opinions were lacking in foundation. We are not persuaded.
In support of its argument regarding foundation, the employer cites Dr. Crowe=s failure to acknowledge certain facts in his opinions, including the fact that the employee did not seek any medical treatment until nearly two weeks post-injury and the fact that the employee did not mention a work injury when he first sought treatment. We note, however, that no doctor mentioned those facts as being relevant to a determination of temporary versus permanent injury.
The employer also points out that the history of the injury recorded by Dr. Crowe is different than the history of injury the employee described at hearing. Dr. Crowe=s history of the injury, however, is similar to that relied upon by Dr. Dowdle. Both reported that the employee=s back Apopped@ at work.
Finally, the employer argues that Dr. Crowe=s opinion should not be accepted because he found the employee was at MMI in April 2004, and he never recanted that opinion. As we have concluded that Dr. Crowe did recant that opinion, as evidenced by his November 14, 2005, letter and the November 15, 2005, fax, this argument has no merit.
A judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are unsupported in the record. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employer has pointed to no facts relied upon by Dr. Crowe that are not in the record. The record as a whole, including Dr. Crowe=s records and the employee=s testimony, supports a finding that the employee had persistent symptoms from the occurrence of the work injury until the date of trial. Because substantial evidence supports the finding that the employee sustained a permanent work injury, that finding is affirmed.
The employer also cross-appeals the judge=s finding that the proposed surgery is causally related to the work injury and is reasonable and necessary, contending that two doctors have opined that the employee could benefit from additional conservative treatment. We are not convinced.
While Dr. Transfeldt did state that surgery would be a last resort after conservative treatment had failed, the employee had treated conservatively for almost two years before the scheduled surgery date. Moreover, in November of 2005, Dr. Dowdle opined that Dr. Crowe=s recommended decompression and fusion are Aa reasonable form of care and treatment relative to the condition.@ While he also opined that, A[i]f there are no persistent symptoms with radicular pain, then management on a conservative basis can be accomplished,@ the employee testified at hearing that he has had persistent radicular pain into his left leg.
The opinions of Dr. Dowdle and Dr. Crowe provide substantial evidence to support the conclusion that the surgery proposed by Dr. Crowe is reasonable and necessary, and the opinion of Dr. Crowe supports the conclusion that the employee=s need for surgery is causally related to the work injury. The judge=s decision on this issue is therefore affirmed.
 The employee also appealed from the compensation judge=s finding that the employee was terminated from employment for reasons unrelated to the work injury. Issues raised in the notice of appeal but not addressed in the brief shall be deemed waived. Minn. R. 9800.0900, subp. 2.
 The deposition was not introduced as an exhibit at hearing.
 Dr. Dowdle apparently changed his opinion that the injury was permanent based on his conclusion that the employee=s symptoms were not persistent and medical care was not continuous after the injury.
 Dr. Crowe reported that the Apop@ occurred while the employee was bent over, while Dr. Dowdle reported that it occurred when the employee slipped.