PETER D. HALDEMAN, Employee, v. NEXT INNOVATIONS, LTD., and AUTO OWNERS INS. GROUP, Employer-Insurer/Appellants, and MERITCARE MED. GROUP, and TWIN CITIES SPINE CTR., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 12, 2006
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that the employee=s work injury was a substantial contributing cause of the employee=s continuing low back condition.
JOB OFFER - REFUSAL. Under the circumstances of this case, where the employee had worked the graveyard shift for the employer prior to his injury in order to have his days free to complete a restaurant remodeling project, the compensation judge did not err in concluding that it was reasonable for the employee to reject the employer=s offer of a day shift job after the injury.
Determined by: Wilson, J., Rykken, J., and Johnson, C.J.
Compensation Judge: James F. Cannon
Attorneys: John P. Bailey, Bailey Law Office, Bemidji, MN, for the Respondent. Laura L. Myslis, Gislason & Hunter, Minneapolis, MN, for the Appellants. Jacqueline S. Anderson, Nilles Law Firm, Fargo, ND, for MeritCare Medical Group, Intervenor.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s findings that the employee=s work-related injury was a substantial contributing cause of the employee=s current back condition, that the employee did not unreasonably refuse an offer of suitable, light-duty work, and that the recommended selective nerve root injections are reasonable and necessary medical treatment. We affirm.
The employee began employment with Next Innovations, Ltd. [the employer], in June of 2004, working the graveyard shift, from 10 p.m. to 6 a.m. or from 11 p.m. to 7 a.m., with two other employees. His job involved cutting eye-catchers (decorative items) out of sheets of metal and then sanding and cleaning the eye catchers.
On October 29, 2004, the employee stepped into a hole when he went outside the employer=s building to use a portable bathroom. His left leg went in the hole; his right leg stayed on the ground. He testified that he felt Aall sorts of pulls and strains throughout my back and my hips, my rear end, everything was pulled.@ He then went back into his place of employment and waited for Lance Sumstad, his supervisor, to arrive for work. After reporting his injury to Mr. Sumstad, the employee drove home and then to North Country Regional Hospital in Bemidji, where he was seen in the emergency room. Exam at that time showed that the employee was mildly tender in the midline and moderately tender in the left paraspinal musculature, and he was diagnosed as having a paraspinous muscle strain secondary to stepping in a hole. X-rays taken at that time showed degenerative disc disease at L2-3, L4-5, and L5-S1, with narrowed interspaces and osteophytes present.
The employee began treating with Physician=s Assistant Catherine Lowe, at the MeritCare Clinic, on November 2, 2004. She treated him for a lumbar strain with right groin pull, referred him to physical therapy, and kept him off of work. On December 3, 2004, MeritCare physician Dr. William M. Petersen examined the employee and recorded that the employee had noted improvement with physical therapy. Physical therapy was continued with the goal being to Aget him back to work in 2 to 3 weeks.@ When the employee followed up with P.A.-C Lowe on December 23, 2004, she discontinued therapy, ordered an MRI, and completed a work ability form that released the employee to light-sedentary work.
The employer offered the employee a light-duty job, within his work restrictions, to begin on December 27, 2004. The offered job was on the day shift. The employee declined the offered job in order to continue working on building his restaurant business during the day.
On December 28, 2004, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits, contending that the employee had refused an offer of light-duty work that was within his restrictions and within the bounds of the rehabilitation plan. When the matter later proceeded to an administrative conference, a compensation judge allowed the discontinuance. The employee subsequently filed an objection to discontinuance.
The employee was seen by Dr. Petersen again on December 30, 2004, at which time the doctor took the employee off work pending completion of an MRI. The employee returned to the clinic on January 7, 2005. Dr. Petersen noted that the MRI performed three days earlier showed diffuse degenerative changes in the lumbosacral spine and the possibility of a compression of exiting nerve rootlets. Further noting that the employee did not feel that he could work because of his pain, Dr. Peterson restricted the employee from working and referred him for chronic pain evaluation. The employer=s workers= compensation insurer refused to approve the evaluation. The employee continued to be treated with medications.
The employee was seen by Dr. Joseph Tambornino at the request of the employer and insurer. In a report dated May 12, 2005, Dr. Tambornino opined that the employee had sustained a lumbar strain on October 29, 2004, that that injury had resulted in three weeks of temporary total disability, and that the employee had reached maximum medical improvement about three weeks following the work injury. It was Dr. Tambornino=s opinion that the employee did not require any physical restrictions related to the work injury and that the offered light-duty job was within his capabilities.
In a letter dated May 13, 2005, Dr. Peterson noted that the employee continued to have a moderately severe painful low back condition and that he was on chronic pain medication. Dr. Peterson requested that the employee be seen by a neurosurgical specialist at the Twin Cities Spine Center. On August 5, 2005, Dr. Petersen wrote to the employee=s attorney, opining that the employee continued to suffer from a 2004 work-related low back injury and that the pain was debilitating. He reiterated that he wanted the employee to be seen at the Minnesota Spine Center but that A[w]orkmen=s comp seems to be significantly impairing the process.@ The referral to the Minnesota Spine Center was approved by the insurer in August, and the employee was examined by Dr. Francis Denis on August 29, 2005. In his office notes of that date, Dr. Denis diagnosed disc herniations at L5-S1 and L4-5 and multi-level degenerative changes. He recommended selective nerve root injections Ato better delineate the source of his pain.@
On September 12, 2005, the employee filed a claim petition, seeking temporary total disability benefits, undetermined permanent partial disability benefits, medical expenses, and retraining benefits. On that same date, the employee also filed a medical request, seeking authorization to proceed with the selective nerve root injections recommended by Dr. Denis. The earlier objection to discontinuance, the medical request, and the claim petition were consolidated for purposes of hearing.
In a November 2, 2005, office note, Dr. Petersen noted that the employee=s pain had become substantially worse over the previous two weeks and that the employee was complaining of more radiation of pain into the left lower extremity. Dr. Peterson increased some of the employee=s pain medications and observed that the employee Amay need a repeat MRI if his condition continues to deteriorate.@
On November 29, 2005, Dr. Tambornino wrote a follow-up report after reviewing additional medical records and the actual MRI scan. It was his opinion that the proposed selective nerve root injections were not related to the work injury and that the employee did not require a repeat MRI scan.
The matter came on for hearing on March 17, 2005. In findings and order filed on June 5, 2006, the compensation judge found that the employee had reasonably refused the employer=s light-duty job offer, that the employee=s work injury was still a substantial contributing cause of the employee=s current back problems, and that the employee was entitled to temporary total disability benefits and the recommended selective nerve root block treatment. The employer and insurer appealed.
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).
The employer and insurer contend that the conclusions of Dr. Tambornino Arest on solid foundation@ and should have been adopted by the compensation judge. This court=s function, however, is not to determine whether substantial evidence supports an alternative decision, but whether substantial evidence supports the compensation judge=s finding that the employee=s work injury is a substantial contributing cause of his current condition.
A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The judge accepted the opinions of Dr. Petersen and Dr. Denis over those of Dr. Tambornino. The employer and insurer contend that the judge erred in this regard, in that Dr. Petersen and Dr. Denis did not have any information regarding the employee=s prior low back injuries and treatment. The employer and insurer mention specifically the doctors= failure to review the employee=s deposition testimony or the records of two chiropractors with whom the employee treated. We are not persuaded.
Dr. Petersen has treated the employee since December 3, 2004. He has examined the employee on multiple occasions and reviewed the x-rays, physical therapy records, and the MRI report. The employer and insurer have not pointed to any facts assumed by Dr. Peterson in rendering his opinions that are not supported by the evidence. Clearly, Dr. Peterson had adequate foundation to render his opinions.
Dr. Petersen=s office notes often reflect little more than the employee=s reported complaints of pain. However, on July 24, 2005, he noted significant limitations of range of motion and decreased sensation of the lower extremities, and, on November 2, 2005, he noted that the employee=s left ankle jerk was diminished compared to the right. In addition, Dr. Denis interpreted the January 4, 2005, MRI as showing disc herniations at L5-S1 and L4-5. These objective findings and the opinion rendered by Dr. Petersen in his August 5, 2005, letter provide substantial evidence to support the judge=s finding that the employee=s August 2004 work injury continues to be a substantial contributing cause of the employee=s low back condition.
2. Refusal of a Light-Duty Job Offer
Minn. Stat. '176.101, subd. 1(i) provides a follows:
(i) Temporary total disability compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the commissioner which meets the requirements of section 176.102, subdivision 4, or, if no plan has been filed, the employee refuses an offer of gainful employment that the employee can do in the employee=s physical condition. Once temporary total disability compensation has ceased under this paragraph, it may not be recommenced.
In an unappealed finding, the compensation judge found that the employee was offered a light-duty job within his work restrictions, to begin on December 27, 2004. However, the judge also found that the employee reasonably refused that offer, because the offered job was for the day shift and Awould dramatically alter [the employee=s] ability to engage in building his restaurant business with respect to a number of projects going on during the day.@
The employer and insurer contend that the Adeterminative issue relative to whether the Employee is entitled to temporary total disability benefits is whether his refusal of the suitable, light duty job offer within his restrictions was reasonable.@ The employer and insurer further contend that the Areason for the refusal must relate to childcare or care of other relatives (such as an elderly parent), familial, or marital considerations.@ This is an overly restrictive interpretation of the case law. The case of Begin v. Thermo Serv. Co., 36 W.C.D. 404 (W.C.C.A. 1984), is instructive. In Begin, the employee was working the night shift at the time of his injury and attending college during the day. This court held that it was not unreasonable for that employee to refuse an offer of daytime employment in order to continue his college attendance during the day. Begin has been cited by this court, in subsequent cases, for the proposition that an injured worker need not dramatically alter a reasonable and responsible pattern of living in order to maintain eligibility for workers= compensation benefits. See, e.g., Parson v. Bureau of Engraving, Inc., slip op. (W.C.C.A. Oct. 26, 2000).
In the instant case, the employee testified that he took the job with the employer only because it allowed him to work the graveyard shift and that he needed to have his days free to remodel a property that he was converting into a restaurant. He pointed to specific work, insulation and sheet rocking, that had been scheduled to be done in the daytime hours during the week that the employer offered him the day shift job. The employee further testified that he had to be present to supervise the work because the workers were not professionals. The employee notified the employer that he would be willing to perform the offered job on the graveyard shift - - which he had worked since beginning employment with the employer - - but the employer could not make this accommodation. Given all the circumstances, we cannot conclude that the compensation judge erred in characterizing the employee=s refusal as reasonable, and we therefore affirm that finding.
3. Nerve Root Injections
The employer and insurer contend that the employee did not prove that his back pain is the result of his work injury and therefore cannot meet the burden of proving causation with respect to the requested treatment. As we have affirmed the judge=s finding that the work injury is a substantial contributing cause of the employee=s current low back condition, we also affirm the judge=s medical expense award.
 We note that while Dr. Tambornino did reference a review of medical records preceding the work injury, his report reflects that those records concerned treatment for neck symptoms, not low back symptoms. Dr. Tambornino did not reference prior low back injuries or chiropractic records.
 This is in keeping with this court=s decision in Rivas v. Car Wash Partners, slip op. (W.C.C.A. June 4, 2004).