RONALD J. LANG, Employee/Appellant, v. HARVEY VOGEL MFG. CO., and STATE FUND MUT. INS. CO., Employer-Insurer/Cross-Appellants, and HARVEY VOGEL MFG. CO., and FIREMAN=S FUND INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 19, 2007
CAUSATION - PSYCHOLOGICAL CONDITION; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including the well-founded opinion of the employee=s treating psychologist, support the compensation judge=s finding that the employee=s July 15, 2005, personal injury was a substantial contributing factor to the employee=s psychological condition.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including the well-founded opinion of the independent medical examiner, a psychiatrist, supports the compensation judge=s determination that the employee=s psychological condition was not of such a degree as to totally disable the employee.
DISCONTINUANCE - MATTERS AT ISSUE. Where counsel for the employee agreed at the start of the hearing on discontinuance that job search would be an issue, the compensation judge did not impermissibly expand the issues to include the defense of failure to diligently search for work.
JOB SEARCH; REHABILITATION - COOPERATION; TEMPORARY TOTAL DISABILITY. An injured employee proves total disability by showing, by a diligent job search to no avail, that work the employee is capable of doing in his injured condition is unavailable. Where the employee failed to cooperate with the vocational rehabilitation plan in effect, the compensation judge=s denial of temporary total disability benefits from and after June 21, 2006, must be affirmed.
JOB OFFER - REFUSAL; STATUTES CONSTRUED - MINN. STAT. ' 176.101, subd. 1(i). On the facts of this case, the employer and insurer failed to meet their burden of proving the May 24, 2006, job offer was consistent with the plan of rehabilitation as required by Minn. Stat. ' 176.101, subd. 1(i), and the compensation judge=s refusal to discontinue temporary total disability benefits on the basis of refusal of a job offer is affirmed.
Determined by: Johnson, C.J., Wilson, J., and Rykken, J.
Compensation Judge: James F. Cannon
Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Appellant. Gregory G. Heacox and Tracy M. Borash, St. Paul, MN, for the Cross-Appellants. M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s finding that the employee=s psychological condition was not so severe as to totally disable the employee and from the judge=s denial of temporary total disability benefits on the basis of failure to conduct a reasonably diligent job search. The employer and its insurer, State Fund, appeal from the compensation judge=s findings that the employee=s July 15, 2005, personal injury was a substantial contributing cause of the employee=s psychological condition, and that a job offer made by the employer was not suitable. We affirm.
Ronald J. Lang, the employee, began working for Harvey Vogel Manufacturing Company, the employer, in 1987, where he remained continually employed until May 2006. His primary job was operating a punch press machine. In July 1990, the employee=s left thumb and a portion of his two middle fingers were amputated as a result of a non-work injury. The employee is left handed. After a medical leave of approximately six months, the employee returned to work for the employer and eventually resumed his full-time punch press job.
On May 24, 1999, the employee sustained a personal injury while working for the employer which was then insured by Fireman=s Fund Insurance Company. The employee=s right hand was crushed in a punch press resulting in the loss of all of his fingers. The employer and Fireman=s Fund admitted liability for the employee=s personal injury. Ultimately, the employee returned to work with the employer subject to permanent restrictions.
On or about July 15, 2005, the employee sustained an admitted Gillette-type personal injury to his right and left hands and wrists in the nature of bilateral carpal tunnel syndrome. The employer and its then insurer, State Fund Mutual Insurance Company, admitted liability for this injury.
Dr. Robert Anderson performed a right carpal tunnel release in September 2005, and a left carpal tunnel release in October 2005. Following the second carpal tunnel release, the employee returned to work for the employer driving a forklift and training new employees. Michael Anderson, a qualified rehabilitation consultant (QRC), completed a rehabilitation consultation on October 14, 2005, and recommended rehabilitation services for the employee. A rehabilitation plan was prepared with a vocational goal of exploring suitable employment options with the employer. The employee returned for followup with Dr. Anderson in November 2005. The doctor noted the employee was doing extremely well with some occasional tingliness in his hand, and stated the employee could continue to work with a 10-pound restriction.
In December 2005, the employee=s job changed and he trained new employees for four hours a day and ran a press for the remaining four hours. On January 9, 2006, the employee told Dr. Anderson he had been operating a punch press at work which required him to hold material of up to 30 to 50 pounds on a regular basis and this was causing him trouble. Dr. Anderson reiterated the employee had a 10-pound permanent lifting restriction. In March 2006, the employee complained to Dr. Anderson of a new onset of pain into his arms over the past several weeks. The doctor recommended physical therapy, stating he would not change the work restrictions because the employee did not believe his current job duties were causing any substantial problems. The employee returned to Dr. Anderson on May 1, 2006, with continued complaints of pain and a recently developed hand tremor. The doctor discontinued physical therapy since there had been no realistic long-term improvement. Dr. Anderson stated, AI see no physiologic reason to continue him on any persistent restrictions beyond what he presented with before the surgery, which is a 10# permanent restriction.@ Dr. Anderson told the employee he did not believe he had any further treatment that would augment his function outcome. (Resp. Ex. 12.)
The employee saw Dr. John Eikens, his family physician, on May 11, 2006, complaining of bilateral arm pain. The doctor noted the employee had a chronic hand tremor and was having problems emotionally handling the pain. Dr. Eikens prescribed Neurontin, took the employee off work for two weeks, and referred the employee to Dr. Paul Biewen, an orthopedic surgeon.
The employee saw Dr. Biewen on May 19, complaining of bilateral arm pain and a right arm tremor. The doctor stated the etiology for the employee=s symptoms was not entirely clear, opined there was an element of symptom magnification and felt depression maybe contributing to the employee=s status. The doctor released the employee to work subject to a 10-pound lifting restriction.
Also on May 19, 2006, the employee went to Fairview Lakes Regional Medical Center emergency room complaining of hand pain, tremors, depression, and stress. The diagnosis was hand pain and tremor, depression and suicidal ideation and he was prescribed Cymbalta, an antidepressant. The employee saw Dr. Paul Reitman, a psychologist, on May 24, 2006, on referral from Fairview Lakes Medical Center. The doctor recorded a recent history of severe suicidal ideation with severe suicidal gesture and a prior history of chronic pain, alcohol abuse, and alcohol dependency. The doctor diagnosed severe depressive illness with disabling anxiety and chronic pain due to the employee=s wrist and hand problems. Dr. Reitman recommended aggressive drug intervention to alleviate symptoms of severe depression and suicide, therapy and a chronic pain management program. Dr. Reitman opined the employee was not capable of competitive employment, even with low productive goals, and stated the employee Ais simply unable to work in any competitive job.@ (Pet., Ex. B.).
The employee did not return to work for the employer after May 11, 2006. On May 24, 2006, Donna Winter, the employer=s human resources manager, called the employee and offered him a job operating a press. The employee stated he believed the job exceeded his restrictions and requested additional vacation time. Ms. Winter prepared a memo dated June 20, 2006, recounting her telephone conversation with the employee on May 24. The memo stated in part:
On 5/24/06 I called Ron Lang to tell him that I received a message from his supervisor stating that Mr. Lang called and requested to take vacation time. He was requesting vacation 5/24 through 6/5. I told him that his vacation was recorded and I asked if he wanted me to mail his check or if he wanted to come in and pick it up.
I proceeded with the conversation by stating that we (Harvey Vogel Mfg. Co.) could have him run the 35 ton blanker-progressive tooling (this machine basically runs itself - you push a button and its automatic run time) and this would fit into his restrictions. I said, Awhen you come back from vacation on Tuesday, June 6th do you want to start running this machine or would you even just want to come back tomorrow and start and not use vacation?@ He replied with, AI can=t answer that right now. Let=s just leave it with me on vacation as I asked.@
In August 2006, the employee temporarily moved to Florida to be with his wife who had moved to Florida in April 2006 to care for her mother. By December 2006, the employee had returned to Minnesota. He has conducted no job search since May 11, 2006.
Dr. Mark Holm examined the employee on June 5, 2006, at the request of the employer and Fireman=s Fund. The doctor diagnosed post-traumatic amputation through the second, third, fourth, and fifth fingers of the right hand and status post-carpal tunnel release on the right, and post-traumatic amputation of the left thumb, middle and ring fingers in 1990, status post-metacarpal fractures in 1996, and status post-carpal tunnel release on the left. Dr. Holm was unconvinced the employee had right-sided carpal tunnel syndrome, and opined the employee suffered from nerve stump pain due to a transected median nerve. The doctor apportioned 50% of the responsibility for the carpal tunnel syndrome to the 1999 injury and 50% to a Gillette-type injury occurring on or about July 15, 2005. The doctor apportioned 100% liability for the left-sided carpal tunnel syndrome to the 2005 injury. Dr. Holm opined the employee could work subject to restrictions and opined the employee had reached maximum medical improvement on February 4, 2000, from the results of the 1999 injury.
The employee returned to see Dr. Biewen on June 20, 2006, complaining of pain in his arms and paresthesias. Dr. Biewen diagnosed moderately severe bilateral median nerve entrapment but noted the employee=s pain and degree of impairment appeared greater than the objective physical and EMG findings. Dr. Biewen stated the employee remained released for light-duty work, with restrictions of lifting up to 10 pounds, push/pull to 25 pounds and light gripping and handling. Dr. Biewen restricted the employee from operating a forklift, operating machines, using hand tools, and driving vehicles.
By report dated September 5, 2006, Dr. Reitman diagnosed major depressive disorder, severe, with suicidal ideation, secondary to chronic pain, general anxiety disorder and chemical dependency in full remission. The doctor stated the work injuries were substantial contributing factors that reactivated the employee=s psychological complaints and symptoms. Dr. Reitman opined the employee was currently incapable of any gainful employment due to pain and depression. The doctor recommended chronic pain management treatment, psychopharmacologial psychiatric treatment and individual cognitive behavioral therapy.
Dr. John Rauenhorst examined the employee on September 6, 2006, at the request of the employer and State Fund. The doctor diagnosed post traumatic stress disorder secondary to sexual abuse as a child and a history of marijuana and Vicodin abuse, in remission. Dr. Rauenhorst stated that although the 1999 injury was a severe stressor, it was not nearly so severe as the on-going abuse the employee suffered as a child. The doctor opined the employee=s current symptoms were a function of the stress disorder caused by the childhood abuse. The doctor opined the employee was not totally disabled from gainful employment for psychological or psychiatric reasons because the psychiatric symptoms, while present, were not of such a degree as to disable the employee.
The employer and State Fund filed a Notice of Intention to Discontinue Benefits (NOID) alleging the employee had been released to return to work with restrictions and the employer made an offer of suitable light duty work on May 24, 2006, which the employee refused. Following an administrative conference, a compensation judge discontinued the employee=s temporary total disability benefits and the employee filed an objection to discontinuance.
At a hearing before a compensation judge, counsel for State Fund asserted the employee was not entitled to temporary total disability benefits because he refused a suitable job offer, had reached maximum medical improvement (MMI), was not disabled from a psychological standpoint based upon the report of Dr. Rauenhorst, and because the employee removed himself from the labor market and failed to conduct a reasonable and diligent job search. Mr. Nelson, the employee=s attorney, stated he objected to expanding the issues to include MMI as a defense. (T. at 23-24.) The compensation judge then stated: ASo all the other issues that were raised in the opening statement as defenses you=re going to have addressed but not the MMI issue on the merits.@ In response, Mr. Nelson stated: AThat=s essentially fair, yeah.@ (T. at 25.)
Following the hearing, the compensation judge found the May 1999 and July 2005 injuries were substantial contributing causes of the employee=s psychological condition. The judge found, however, that the employee=s psychological condition was not so severe as to totally disable the employee from employment. The compensation judge found that since the employee had not made a reasonable or diligent job search since leaving the employ of Harvey Vogel Manufacturing, State Fund was entitled to discontinue temporary total disability benefits. Finally, the compensation judge found the employer=s job offer was not a suitable position for the employee because it was not within Dr. Biewen=s restrictions. The employee appeals the judge=s finding that the employee=s psychological condition was not so severe as to totally disable the employee and contends the compensation judge erred in expanding the issues at the hearing to include job search. The employer and State Fund appeal the compensation judge=s finding that the July 2005 injury was a substantial contributing cause of the employee=s psychiatric condition and the judge=s finding that the job offer was not suitable.
1. Extent of July 15, 2005, Personal Injury
The employee sustained an admitted Gillette-type personal injury to his hands and wrists in the nature of bilateral carpal tunnel syndrome on or about July 15, 2005. The compensation judge found the 2005 personal injury was a substantial contributing factor to the employee=s psychological condition. The employer and State Fund contend this finding is unsupported by substantial evidence. The appellants acknowledge Dr. Reitman opined a causal relationship between the 2005 personal injury and the employee=s mental condition, but contend the doctor=s opinion lacks foundation. Although Dr. Reitman reviewed some of the employee=s medical records, the appellants assert, he did not have a clear picture of the employee=s family life or the circumstances that led up to the May 24, 2006, examination. Specifically, they assert Dr. Reitman was unaware at the time of his examination that the employee=s house had recently been foreclosed upon. The employer and State Fund further contend it was not until the employee=s wife decided to move to Florida and he lost his home that his mental symptoms developed. These facts, together with the opinion of Dr. Rauenhorst, the appellants argue, require a reversal of the compensation judge=s factual finding.
Where a work-related physical injury causes, aggravates, accelerates, or precipitates a mental injury, that mental injury is compensable. Hartman v. Cold Spring Granite Co., 243 Minn. 264, 67 N.W.2d 656, 18 W.C.D. 206 (1954). It is not necessary that the physical injury be the sole cause of the mental injury, it is sufficient if the work-related physical injury is a substantial contributing factor in the mental injury. Miels v. Northwestern Bell Tel. Co., 355 N.W.2d 710, 37 W.C.D. 164 (Minn. 1984).
There is no dispute the employee was a victim of childhood sexual abuse. However, as the compensation judge noted, the employee was able to work from August 1999 through June 2005 with essentially no time loss due to any psychological symptoms. On May 19, 2006, Dr. Genia at the Fairview Lakes emergency room diagnosed hand pain, depression, and suicidal ideation and prescribed Cymbalta. The employee was then referred to Dr. Reitman who diagnosed a severe depressive illness with disabling anxiety and chronic pain. Dr. Reitman opined the employee=s work-related physical injuries were substantial contributing factors that reactivated the employee=s psychological complaints and symptoms. Following his examination of the employee, Dr. Reitman prepared two medical reports, the first dated June 20 and a second dated September 5, 2006. These two doctor=s reports reflect Dr. Reitman reviewed 175 pages of medical records regarding the care and treatment for the employee=s two personal injuries, an MMPI-II and records regarding the employee=s prior mental health history. In addition, the doctor interviewed the employee and administered psychological tests. We have on many occasions stated this level of experience with the subject matter at issue provides ample foundation for an expert opinion. Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88 (Minn. 1983)). While Dr. Reitman may have been unaware of the home foreclosure, such lack of knowledge goes to the weight afforded his opinion not its foundation. See, e.g., Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997). Although Dr. Rauenhorst opined the employee=s psychological symptoms were a function of a stress disorder caused by childhood abuse, the compensation judge adopted the causation opinion of Dr. Reitman. It is the function of the compensation judge to chose between conflicting expert opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s causation finding is supported by substantial evidence and must, therefore, be affirmed.
2. Extent of Disability
The compensation judge found the employee=s psychological condition was not so severe as to totally disable the employee. The employee contends this finding is clearly erroneous and unsupported by substantial evidence. The employee contends the evidence presented at the hearing overwhelmingly establishes the combination of the employee=s amputation injuries, the resulting carpal tunnel syndrome, and the continuing chronic pain have had the cumulative effect of exacerbating the employee=s pre-existing depressive state to such a degree that he cannot function in a work environment. Although Dr. Rauenhorst disagreed, the appellant contends his opinions lack foundation. The employee argues Dr. Rauenhorst minimized the effects of the employee=s hand injuries and his work history after those injuries, and instead, focused on the employee=s prior sexual abuse and other emotional difficulties. Accordingly, the employee seeks a reversal of the compensation judge=s finding.
The evidence presented by the employee in support of his claim, including his own testimony and that of Mr. Anderson, together with the medical reports of Dr. Reitman, certainly support a conclusion that the employee is totally disabled due to the effects of his personal injuries. The issue before the court is not, however, whether the evidence will support a contrary result, but whether the compensation judge=s decision is supported by substantial evidence. Minn. Stat. ' 176.421, subd. 1. Dr. Rauenhorst is a licensed psychiatrist who interviewed the employee and reviewed an extensive amount of medical and psychiatric records, including the raw data from the MMPI testing completed by the employee. As we stated with respect to the opinions of Dr. Reitman, Dr. Rauenhorst also had ample foundation to render an expert opinion in this case. The compensation judge adopted Dr. Rauenhorst=s opinion that the employee=s psychological condition was not of such a degree as to totally disable the employee. This finding is supported by substantial evidence and must, therefore, be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
3. Expansion of Issues
The employee contends the compensation judge impermissibly expanded the issues at the hearing to include the defense of failure to diligently search for work. We disagree.
The basis for State Fund=s NOID was that the employee had been released to return to work with restrictions and refused a suitable offer of light-duty employment on May 24, 2006. Minn. Stat. ' 176.238, subd. 6, provides that the hearing shall be limited to the issues raised by the NOID unless all parties agree to expanding the issues. At the hearing, counsel for State Fund asserted the employee was not entitled to temporary total disability benefits because he failed to conduct a reasonably diligent job search. In response to a question from the compensation judge, the employee=s attorney agreed job search would be an issue at the hearing. Accordingly, we reject the employee=s contention that the compensation judge erroneously expanded the issues to be heard.
4. Job Search Requirement
The employee argues it is not settled law that an employee who claims total disability benefits must, to initially receive those benefits, immediately conduct a job search. The employee argues the obligation to commence a job search does not commence until the total disability ends which is the date the employee reaches maximum medical improvement. Since MMI was not an issue at the hearing, the employee asserts he had no obligation to conduct a job search. We disagree.
Minn. Stat. ' 176.101(g) provides that A[t]emporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee=s physical restrictions.@ Minn. Stat. ' 176.101, subd. 1(l), states, AParagraphs (e) to (k) do not limit other grounds under law to suspend or discontinue temporary total disability compensation provided under this chapter.@ In Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988), the Minnesota Supreme Court held A[t]he injured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.@ This principle remains good law. Whether under paragraph (g) or paragraph (l) of Minn. Stat. ' 176.101, an employee must prove total disability by showing the unavailability of suitable work after a diligent search.
In Scott v. Southview Chev. Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978), the supreme court held a job search may not be necessary where the employee establishes that no jobs exist for which the employee is physically or vocationally suited. The employee argues he had no duty to search for work because such a work search would have been futile. Michael Anderson, the employee=s QRC, testified, given the employee=s intelligence, education, training, and experience in conjunction with his continuing pain and work restrictions, he was essentially unemployable in the Minnesota labor market. Dr. Reitman also opined the employee was incapable of any competitive employment given his psychological state and level of pain. Based upon this evidence, the employee contends the compensation judge erroneously imposed on the employee an obligation to search for work.
The rehabilitation plan in effect was for a return to work at a suitable job with the employer. From June 2006 through the date of hearing, Mr. Anderson testified he essentially had no contact with the employee. The employee did not communicate the employer=s job offer to his QRC or maintain any reasonable contact with the QRC, and he left the state for two months or more with apparently no intention of complying with his rehabilitation plan. Mr. Anderson did not provide any job search or vocational rehabilitation during that time. In providing rehabilitation, Mr. Anderson had to take into consideration Dr. Reitman=s opinion that the employee was totally disabled due to his psychological status. The compensation judge rejected Dr. Reitman=s opinion and concluded the employee=s psychological condition was not sufficiently serious to totally disable the employee. The initial basis for the requested discontinuance was the alleged refusal of the May 24, 2006, job offer but the issues were expanded at hearing to include the issue of job search after May 24. Given the procedural posture in this case, we conclude neither party had an opportunity to fully develop and litigate the issue of the employee=s employability should the employee be unable to return to work with the employer. We do not, therefore, decide the issue of whether the employee is employable in the labor market. Clearly, however, the employee did not cooperate with his rehabilitation plan. Accordingly, we affirm the compensation judge=s denial of temporary total disability benefits from and after June 21, 2006.
5. Refusal of Offer of Work
Minn. Stat. ' 176.101, subd. 1(i), provides that temporary total disability Ashall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the commissioner. @ The compensation judge found the May 24, 2006, job offer made by the employer was not a suitable job because it was not within Dr. Biewen=s work restrictions. The employer and State Fund contend this finding is unsupported by substantial evidence.
Ms. Winter testified the job she offered to the employee in May 2006 was a modified job operating a machine. She stated another employee would load the machine and do the tooling and set-up so all the employee would have to do was push a button to start the machine after which the machine operated automatically. Although Dr. Biewen did restrict the employee from operating machines, the appellant contends the job offered to the employee did not require any machine operation; the employee simply had to turn the machine on and off. These duties, the appellants contend, were clearly within the employee=s restrictions. Accordingly, the appellants assert the compensation judge erred in determining the job offer was not appropriate for the employee.
Minn. Stat. ' 176.101, subd. 1(i), requires the offer of work be consistent with the plan of rehabilitation. The statute does not, however, define what makes an offer of work consistent with the plan of rehabilitation. That determination will vary depending upon the facts and circumstances of each case. Here, the job offer was not communicated to the employee in writing and the employer did not apprise Mr. Anderson, the employee=s QRC, of the job offer. After learning of the job offer in June, Mr. Anderson requested permission to do an on-site job evaluation. Mr. Anderson testified State Fund replied Ait was their preference that I not perform that analysis.@ (T. at 170.) Mr. Anderson testified he made a second request to perform an on-site job analysis and again was denied. The QRC testified he could not determine whether the job was within the employee=s physical restrictions without performing an on-site job analysis.
The employee has sustained significant work and non-work injuries with extensive restrictions. When the employee returned to work in October 2005, he was working at what Mr. Anderson described as light-duty jobs performed on a temporary basis. The employee periodically complained that his job required him, on occasion, to exceed his lifting restrictions. Mr. Anderson testified he felt the job evaluation was necessary because whenever there is Aa question or an issue or complaint about whether an employer is accommodating a person=s restrictions or not I think it is good practice for a QRC to investigate that and oftentimes to perform a Job Analysis to make sure that person indeed is not working outside of their physical restrictions.@ (T. at 171.) The employer had some concern whether they would be able to find a job for the employee within his restrictions and prior to the telephone conversation of May 24, 2006, apparently dealt with the QRC on return to work issues. Thereafter, Mr. Anderson was not included in the return to work discussions and was not afforded the opportunity to conduct an on-site job analysis which he considered necessary. We conclude the employer and insurer failed to meet their burden of proving the May 24, 2006, job offer was consistent with the plan of rehabilitation. On this basis, we affirm the compensation judge=s refusal to discontinue temporary total disability benefits under Minn. Stat. ' 176.101, subd. 1(i).