RANDALL C. MANN, Employee/Appellant, v. OFFSET PLATE SERV., INC., and MINNESOTA WORKERS= COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM=RS CO., Employer-Insurer, and CLASSIC SPACE, INC., UNINSURED, and SPECIAL COMP. FUND.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 15, 2006
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence in the records supports the compensation judge=s findings that the employee has no residual disability related to his December 12, 2001, work injury and that he is not entitled to payment of temporary partial disability benefits.
Determined by: Rykken, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Catherine A. Dallner
Attorneys: Dean M. Salita, Brabbit & Salita, Minneapolis, MN, for the Appellant. Joseph G. Twomey, Hanson, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents Offset Plate and ARP/Berkley.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge=s denial of his claim for temporary partial disability benefits. We affirm.
The employee, Randall C. Mann, sustained an admitted injury to his low back on December 12, 2001. At that time, he was employed by Offset Plate Service, performing maintenance and cleaning duties in a building in Minneapolis, Minnesota. On December 12, 2001, the employee injured his low back while moving a furnace, and was unable to continue working that day. His low back symptoms progressed and he was unable to twist his back, had difficulty sitting down and experienced difficulty walking. The employee ultimately sought chiropractic treatment with Dr. Terra Flemming, D.C., on January 9, 2002. His pain and symptoms persisted, and he received chiropractic treatment between January 11 and February 13, 2002. The employee testified that his activities were restricted as a result of his low back condition, and advised that these were self-imposed restrictions, as his chiropractic records in early 2002 do not list any restrictions assigned by Dr. Flemming. The employee testified at the hearing that Dr. Flemming inquired whether he wanted to have restrictions imposed and that he declined, in fear that he would lose his job.
The employee continued to work for Offset Plate Service until late May 2002. On July 3, 2002, the employee consulted his family physician, Dr. Gene Velasco, at Oakdale Family Practice. At that time, the employee reported flu-like symptoms that seemed to be related to his back brace he was wearing to alleviate his low back pain. On examination, Dr. Velasco noted some mild tenderness in the low back. Dr. Velasco prescribed Vioxx for the employee=s back symptoms, and also referred the employee to the Physician=s Neck and Back Clinic.
The employee again consulted Dr. Velasco on October 11, 2002. He reported that he continued to note pain, although the Vioxx did Ahelp.@ The chart notes reflect that the employee continued to have mild tenderness with palpation in his back. Dr. Velasco again prescribed Vioxx, and again referred the employee to the Physician=s Neck and Back Clinic. The employee testified that Physician=s Neck and Back Clinic declined to provide medical treatment to him, due to his lack of proof of insurance coverage. The employee testified that due to his inability to pay for medical bills and due to lack of insurance coverage, he discontinued medical treatment and restricted his activities on his own, even though his low back symptoms never completely resolved. There are no additional medical records in the hearing record referring to chiropractic or medical treatment the employee received following his December 2001 injury.
At the hearing, the employee testified that although he had notified the owner of Offset Plate Service of his injury, on the date of injury, that employer evidently did not complete a first report of injury at that time, and did not report the injury to the workers= compensation insurer until later. The employee also testified, and a representative of Offset Plate Service confirmed, that although the employee had been promised health insurance coverage, Offset Plate failed to provide that coverage.
The employee=s position with Offset Plate was terminated in late May 2002. He was provided severance pay through July 15, 2002, and has been self-employed since that time. The employee has looked for other work on a limited basis since July 2002; he submitted into evidence copies of his wage records generated since July 2002. Since that time, the employee has worked on a contract basis with various companies, including a condominium development, a staffing agency, a construction company and a restoration company, performing superintendent and management duties. He has also continued to perform snow plowing services for the condominium development, and has performed home repair work for individuals.
At the request of the employer and insurer, the employee underwent an independent medical examination with Dr. Robert Barnett on January 31, 2003. At that exam, the employee reported symptoms in his mid and lower back, extending into his shoulder area. He advised that his symptoms were aggravated by long periods of standing, sitting and lying flat in bed. He also reported that long periods of sitting in a truck resulted in back pain, and advised that he had limited tolerance for working, turning and twisting to climb in and out of a truck, heavy lifting, bending and carrying. At the time of that examination, the employee was performing various types of work, primarily supervisory work but also some building maintenance and cleaning. He was taking Vioxx at that time to treat his low back pain.
In his report dated January 31, 2003, Dr. Barnett noted that the employee had a normal examination findings, and diagnosed Asubjective symptoms of low back pain without objective evidence of physical impairment or deformity to the lumbosacral spine.@ Dr. Barnett concluded that there was no evidence to suggest that the employee had sustained any permanent injury to his low back as a result of injuries that might have occurred on December 12, 2001. Based on his assumption that the employee sustained a soft tissue strain to his low back as a result of his work activities, Dr. Barnett concluded that the soft tissue injury was temporary and has since resolved. He concluded that the employee=s medical evaluations and treatment since that injury had been reasonable and necessary, but that the employee required no further medical evaluation or treatment related to his December 2001 injury. Dr. Barnett also concluded that the employee required no specific work restrictions or activity modification as a result of his work injury.
In a follow-up report dated January 9, 2006, Dr. Barnett confirmed his diagnosis of a soft tissue strain to the lumbar spine as a result of the December 12, 2001, injury, and advised that injuries to soft tissue structures around the lumbar spine generally heal, recover and rehabilitate within approximately six months from the date of injury. On that basis, he concluded that the employee=s injury would have resolved by approximately six months following his injury, and assigned a date of maximum medical improvement in resolution of his temporary injury as being June 12, 2002.
The employee filed a claim petition on October 30, 2002, seeking wage loss benefits, permanent partial disability benefits and payment of medical expenses attributable to his December 12, 2001 injury. The Special Compensation Fund petitioned for reimbursement of costs it had paid related to the employee=s claim, evidently based on the uninsured status of the originally-presumed employer, Classic Space. The employee=s claim petition and the Fund=s petition were addressed at a hearing on January 26, 2006. Multiple issues were addressed at that hearing, including whether the employee was an independent contractor on the date of injury; whether he was an employee of Offset Plate Service, Inc., Classic Space, Inc., or both on the date of injury; and whether the employee was entitled to temporary partial disability benefits between July 16, 2002, and December 31, 2005.
In her Findings and Order, served and filed April 14, 2006, the compensation judge determined that the employee was not an independent contractor on the date of injury, but instead was an employee of Offset Plate Service. She concluded that the employee=s injury was temporary and had resolved at least by January 31, 2003, the date of Dr. Barnett=s examination, and that the employee had no restrictions on his work activities attributable to his work injury. The compensation judge denied the employee=s claim for temporary partial disability benefits and also denied the Special Compensation Fund=s claim for reimbursement benefits paid on behalf of the employee.
The employee appeals from the denial of temporary partial disability benefits. No party appealed from the findings addressing the employment and independent contractor issues, and the Special Compensation Fund did not appeal from the denial of its claim for reimbursement of costs.
The employee appeals from the compensation judge=s denial of temporary partial benefits from July 16, 2002, through December 31, 2005. The employee argues that the compensation judge erred in finding that the employee had no restrictions on his work activities attributable to his personal injury of December 12, 2001, that his injury had resolved, and therefore he was not entitled to temporary partial disability benefits.
Temporary partial benefits are payable while an employee is employed, Aearning 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(2)(b). In order to be eligible for temporary partial benefits, the employee must establish a reduction in earning capacity that is causally related to the work injury. Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48 (Minn. 1988). An employee must show (1) a work-related injury resulting in disability, (2) an ability to work subject to that disability, and (3) an actual loss of earning capacity that is causally related to the work-related disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990).
The compensation judge concluded that the employee=s low back injury was temporary in nature, and that he does not have any restrictions on his work activities attributable to that injury. She outlined her review of the medical and chiropractic records generated in 2002 following the 2001 injury, and noted that there was no indication in any of the records that the employee was assigned work restrictions. The compensation judge concluded that:
Mr. Mann does not have any restrictions on his work activities attributable to the personal injury of December 12, 2001. The employee treated with a chiropractor, Dr. T. R. Fleming of Fleming Chiropractic, on numerous occasions from January 11, 2002 through February 13, 2002. Specifically, the employee received chiropractic treatments on January 11, 15, 16, 21, 23, 25, and 28, 2002 as well as on February 1, 4, 8, 11, and 13, 2002. There is no indication in Dr. Fleming=s records that he imposed any restrictions on the employee=s work activities due to the employee=s low back injury. The employee was also seen by Dr. Gene W. Velasco at Oakdale Family Practice on July 30, 2002 and on October 11, 2002. Dr. Velasco did not impose any work restrictions for the employee due to the low back injury of December 12, 2001. The back brace which the employee was wearing at the time of the hearing in January of 2006 was not prescribed by any of the employee=s medical providers. None of the employee=s treating or examining physicians totally disabled him from working for any period of time following the low back injury of December 12, 2001. None of the employee=s treating or examining physicians imposed any restrictions on the employee=s work activities attributable to the low back injury of December 12, 2001.
The compensation judge also referred to Dr. Robert Barnett=s report and his opinion that the employee sustained, at most, a soft tissue strain to his low back as a result of lifting and moving a furnace on December 12, 2001. The judge referred to the normal examination findings from Dr. Barnett=s exam, and referred to Dr. Barnett=s opinion that the employee demonstrated subjective symptoms without objective evidence of physical impairment with respect to his lumbar spine, and that the employee required no work restrictions or activity modification as a result of his low back injury, and that any effects from his injury would have resolved within six months of his injury.
The employee argues that the compensation judge erred in relying on Dr. Barnett=s opinion as it was without adequate foundation and was not supported by the evidence as a whole. The employee argues that the compensation judge did not take into consideration the employee=s testimony at time of trial concerning the intentional denial of workers= compensation coverage and health insurance. The employee also argues that Dr. Barnett did not have the correct history when preparing his report, in that he assumed that because the employee=s treatment discontinued, the employee therefore no longer suffered the effects of his work injury.
Adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991). To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence. McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990). Dr. Barnett examined the employee, took a history from him, and reviewed his medical records. As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion. See Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1987); Schaar v. Andersen Corp., slip op. (W.C.C.A. Sept. 10, 2004). As his opinion has foundation, it was not unreasonable for the compensation judge to accept Dr. Barnett=s opinion that the employee had no residual disability or restrictions on his activities as a result of his December 2001 injury. See Cull v. Wal-Mart Stores, Inc., 64 W.C.D. 264 (W.C.C.A. 2004), summarily aff=d (Minn. July 20, 2004).
The employee also argues on appeal that the compensation judge erred in finding that the employee had no restrictions and therefore is not entitled to temporary partial disability. The employee argues that the judge applied an incorrect standard by basing her denial of temporary partial disability benefits on the lack of written restrictions from the employee=s physician or chiropractor. The employee argues that his ability to work was and continues to be limited as a result of his low back injury, that he self-limited his activities following his injury, and that his testimony supported the fact that he had restrictions. The employee also argues that the employer representative=s acknowledgment of the employee=s residual limitations is further proof that the employee had a residual disability as a result of his work injury.
The presence of physical restrictions and the effect of such restrictions on an employee=s ability are a central consideration in determining entitlement to temporary partial disability benefits. Jenson v. Erickson, et. al., 55 W.C.D. 362, 366 (W.C.C.A. 1996), citing Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). The compensation judge had the opportunity to hear the employee=s testimony and testimony of the employer representative, and to review medical and chiropractic records generated in 2002 following his 2001 injury. The judge relied on information derived from those medical and chiropractic records, which constitute the sole medical records generated following the employee=s injury other than Dr. Barnett=s report. She also relied on the opinion of Dr. Barnett, when reaching her conclusions that the employee had no residual disability resulting from his work injury.
It is the compensation judge=s role to determine which factors are significant in a particular case and how much weight should be given to any factor. See Bergin v. Cass Lake-Bena Sch. Dist. No. 115, No. WC05-265 (W.C.C.A. Mar. 28, 2006). It is not the role of this court to reevaluate the evidence or substitute our judgment for that of the compensation judge. Where evidence is conflicting or more than one inference may reasonably be drawn, the findings of the compensation judge are to be upheld. Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). As the employee argues, evidence was presented on the underlying reasons why the employee=s medical treatment following his injury was so limited, specifically, the lack of medical or workers= compensation insurance coverage needed to provide payment for treatment. We cannot say, however, that the compensation judge did not take those factors into consideration when reaching her conclusions.
And, the issue before the court is not whether the evidence will support a different result but is whether the factual findings are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1. 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). We conclude that substantial evidence in the record supports the compensation judge=s finding that the employee sustained a temporary injury as a result of his December 12, 2001, low back injury that has since resolved and that he had no residual disability from that injury. We affirm the compensation judge=s findings and order, and the corresponding denial of temporary partial disability benefits.
 The employee=s chiropractic expenses were paid by Offset Plate Service.