HELEN MADDEN, Employee, v. PRAIRIE CMTY. SERVS., and GE YOUNG & CO., Employer-Insurer/Appellants, and CENTRAL MINN. NEUROSCIENCES, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 5, 2007
CAUSATION - SUBSTANTIAL EVIDENCE; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s conclusion that the employee continued to suffer from the effects of her work injury, that she has restrictions as a result of that injury, and that she has not yet reached maximum medical improvement.
TERMINATION OF EMPLOYMENT - MISCONDUCT. Given the employee=s explanations for her actions, it was reasonable for the compensation judge to conclude that the employee was not terminated for misconduct for the purposes of Minn. Stat. ' 176.101, subd. 1(e)(1).
TEMPORARY TOTAL DISABILITY - JOB SEARCH; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee=s treating doctor had indicated that the employee was capable of work within restrictions, and where there was no medical or vocational evidence establishing that the employee was unable to work or look for work, substantial evidence did not support the compensation judge=s award of temporary total disability benefits.
Affirmed in part and reversed in part.
Determined by: Wilson, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Janice M. Culnane
Attorneys: Thomas A. Klint and William J. Marshall, Babcock, Neilson, Mannella, Klint, Anoka, MN, for the Respondent. George W. Kuehner, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge=s findings on the nature of the injury, maximum medical improvement, temporary total disability, and the reason for the employee=s termination. We reverse the award of temporary total disability benefits but affirm the judge=s decision on all other issues.
The employee was employed at the Glenwood Group Home, which was run by Prairie Community Services [the employer], supervising residents with developmental disabilities as well as cleaning and cooking for them. On February 21, 2003, the employee was struck during an altercation between residents. The employer admitted that the employee sustained an injury at that time.
By the time she was seen by Dr. D. Eric Westberg on February 25, 2003, the employee was complaining of upper back discomfort, with radiation into the left shoulder and elbow, and she was concerned because her symptoms were getting worse rather than better. Dr. Westberg noted muscle spasm in the lower cervical and upper thoracic spine and prescribed Flexeril. The employee told Dr. Westberg that she did not need any restrictions to continue in her work, and, on March 10, 2003, without seeing the employee again, Dr. Westberg issued a report indicating that the employee had reached maximum medical improvement [MMI].
The employee went without further treatment until September 12, 2003, when she returned to Dr. Westberg. At that time, the employee complained of having experienced intermittent pain since her last visit, and she requested a change in medication and some physical therapy. Dr. Westberg prescribed Skelaxin and physical therapy. Physical therapy was continued on October 14, 2003. When seen by Dr. Westberg again on February 12, 2004, the employee complained of daily pain across the mid back into the left shoulder blade. The employee did not report any weakness in the shoulder or arm; however, she did report that any lifting on the left side increased her symptoms. While continuing to work for the employer, the employee modified her activities by having the residents of the group home lift the mop bucket for her.
An MRI, ordered by Dr. Westberg, was performed on February 23, 2004, and revealed mild kyphosis at T7-8, with slight posterior bulging of the disc at that level causing contact with the anterior aspect of the thoracic cord. When the employee subsequently complained of mid back pain, worse with raking and mopping, Dr. Westberg referred her to Dr. Sunny Kim for a surgical consultation.
Dr. Kim examined the employee on June 2, 2004. At that time, the employee complained of persistent left-sided thoracic pain and noted some radiation of pain up the left shoulder blade coming down into the left arm. Dr. Kim diagnosed a thoracic disc bulge but opined that the employee was not a candidate for surgery. He recommended light-duty restrictions with lifting limited to no more than 20 pounds.
At the suggestion of disability case manager Tom Nelson, the employee was apparently seen by a neurosurgeon, Dr. Jeffrey Gerdes, on August 6, 2004. Dr. Gerdes reviewed the employee=s scans and x-rays, opined that the employee=s symptoms were due to a soft tissue injury, and indicated that she was not a surgical candidate. He referred the employee to physiatrist Dr. Leslie Hillman for conservative treatment.
The employee was seen by Dr. Hillman on August 18, 2004. Dr. Hillman noted that the employee complained of pain in the region of the left scapula and paraspinals, which she rated as a 5-6 on a scale of 1-10. The pain was described as worse with lifting and twisting and better with lying down and heat. At that time, it was noted that the employee had a 5-pound lifting restriction but was working full time within that restriction. On examination, Dr. Hillman noted muscle spasm over the left thoracic paraspinals around T8-10 and the left latissimus dorsi. Range of motion was full. Dr. Hillman diagnosed left scapulothoracic pain, reinitiated physical therapy, and began the employee on a trial of Mobic. On August 30, 2004, the employee had a reaction to Mobic, and Dr. Hillman switched her to Norflex and Celebrex.
An initial work conditioning evaluation was performed at Northwest Industrial Rehabilitation Services on September 2, 2004. During the functional testing, the employee reported increased thoracic pain with lifting to/from floor, waist-level lifting, pushing, and attempted reaching. The employee was found to be capable of sedentary work, and a goal was set to increase the employee=s physical capacities to the light work level. An active work conditioning program was initiated, and the employee was fitted with a TENS unit.
Dr. Hillman=s October 12, 2004, office note reflects that the employee was doing a little better, but it was noted that the employee was lifting only 3 pounds from waist level occasionally and that her pain increased with repetition. The employee was still working full time at that point, and Dr. Hillman changed her lifting restriction to 3 pounds and recommended trigger point injections if the employee did not respond to ongoing conservative care. On exam that day, Dr. Hillman noted increased spasm throughout the scapular musculature with a trigger point in the left thoracic paraspinals.
Later in October, the employee had an allergic reaction to Norflex, and her prescription was changed to Robaxin. When she had no relief with that medication, she was switched to Neurontin.
On November 18, 2004, the employee underwent trigger point injections to the left paraspinal area, administered by Dr. Sam Elghor. Dr. Elghor apparently took the employee off work from November 18 through November 26, 2004. The employee was scheduled to work on November 20, 2004, but it was her understanding that the work release form would be faxed to the employer, so the employee did not notify the employer that she would not be reporting for work. The employer did not receive any form from Dr. Elghor, and, when the employee failed to show up for work on November 20, 2004, the employee=s coworkers had to cover her two shifts that date on short notice. The employer apparently gave the employee a written warning, suspended her for five days, and advised her that, if she had another attendance issue, she would be terminated.
The employee returned to Dr. Westberg on November 30, 2004, complaining that the employer was not accommodating her restrictions. Dr. Westberg and Dr. Hillman agreed to release the employee to work 8 hours per day with a 3-pound weight restriction. The employee was scheduled to work back-to-back shifts on December 4, 2004, totaling 16 hours. She called the employer to tell them that she had an 8-hour work limit, and she arranged for someone else to cover the second shift. The employee also worked one shift on December 5, 2004. She continued to work only 8-hour shifts but was scheduled to work 10:00 p.m. to 7:00 a.m. on December 16, with the understanding that, if Dr. Hillman did not lift the 8-hour limit at her next appointment, she would only be required to work from 11:00 p.m. to 7:00 a.m.
When she was seen by Dr. Hillman again on December 14, 2004, the employee reported that she was a little worse. By this time, physical therapy had been suspended due to her increased pain and lack of progress. Even working only 8-hour shifts with a 3-pound lifting restriction, the employee reported difficulty making it to the end of the day. On exam that day, the employee had increased spasm throughout the scapular musculature with trigger point in the left thoracic paraspinals at about T7. Dr. Hillman continued the employee on the 3-pound lifting restriction, 8 hours a day. On December 15, 2004, after an inquiry from the employer, Dr. Hillman completed a return to work form indicating that the employee could return to work to Anew transitional job, working 10 p.m. to 7 a.m.@ Her office records indicate that this form was faxed to the employer and discussed with the employee.
The employee did not report to work on December 16, 2004, until 11:00 p.m. Four days later, on December 20, 2004, the employee was terminated from her job. According to a form provided to her by the employer, the employee had failed to meet expectations in the areas of attendance, attitude, and communication with coworkers and supervisors.
The employee returned to Dr. Elghor on January 13, 2005, reporting that the trigger point injections in November of 2004 had given her only short-term relief. Dr. Elghor recommended radio frequency and Phenol facet joint denervation. On February 9, 2005, a diagnostic thoracic medial branch block was performed at T7-10, and the employee reported that she had experienced more than 7-8 hours of 100% relief from her symptoms.
On February 22, 2005, the employee filed a claim petition alleging that she had sustained a work-related injury on September 21, 2003, and seeking temporary total disability benefits continuing from December 20, 2004.
On March 9, 2005, Dr. Elghor performed a left T7-9 thoracic radio frequency and Phenol facet joint denervation. When seen in follow up by Dr. Elghor on April 7, 2005, the employee reported that her pain had improved significantly and that Athe remaining amount of pain is tolerable and bearable.@
On April 12, 2005, when she was seen by Dr. Hillman, the employee reported that she was doing much better, that she had stopped taking Celebrex, and that she was weaning herself off Neurontin. On exam, there was still some muscle spasm at T7-9. Dr. Hillman indicated that the employee could work with a 5-pound bilateral lift and carry limit, a 3-pound limitation on lifting with outstretched left upper extremity, avoidance of repetitive use, and frequent change of position. She recommended an FCE. On a form completed that day, Dr. Hillman listed the employee=s diagnosis as thoracic facet syndrome.
The employee was examined by independent medical examiner Dr. Mark E. Friedland on June 13, 2005. In his report of that date, Dr. Friedland noted that the employee had touch-me-not tenderness in the thoracic musculature and no muscle spasm. It was Dr. Friedland=s opinion that, based on the medical records, the employee=s injury had occurred on February 21, 2003, that the injury was a mild thoracic strain/sprain, and that the employee had reached MMI from that injury by at least March 1, 2003.
Dr. Hillman did not treat the employee again until December 23, 2005. At that time, the employee reported that she had experienced increased pain when lifting Christmas boxes and when making her Thanksgiving meal. On exam, there was still some muscle spasm at T7-9. Dr. Hillman continued the employee on Lidoderm and gave her a prescription for ibuprofen, 600 mg. Dr. Hillman also referred the employee back to Dr. Elghor to see if the denervation should be repeated. The employee=s previous restrictions were continued, and the doctor noted that the employee was not looking for work.
When the claim petition proceeded to hearing on January 12, 2006, the employee was claiming an injury date of February 21, 2003. Depositions of Dr. Hillman and Dr. Friedland were taken post-hearing. In findings and order filed on March 28, 2006, the compensation judge found that the employee had sustained an injury to her back, left shoulder, and left arm on February 21, 2003; that she had not been terminated for misconduct on December 20, 2004; she had not yet reached MMI; that the work injury was a substantial contributing factor in her work restrictions; that she was unable to search for work; and that she had been temporarily totally disabled continuing from December 20, 2004. The employer and insurer appeal.
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 (2006). 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).
1. Nature and Extent of the Injury/Restrictions
The employer and insurer advance several arguments regarding the nature and extent of the employee=s work injury, asserting that the injury was so minor that the employee could not recall whether it had happened in February or September of 2003; that the compensation judge Awrongly believed@ that the employee struck the wall or some other surface with her body at the time of incident; that the causation opinion of Dr. Hillman was Aequivocal at best@; that Dr. Hillman found no objective basis to impose any restrictions; that a 3-pound lifting restriction for a back or shoulder injury is not credible; and that the employee is lacking in credibility. We are not persuaded.
At hearing, the employee testified that she believed that her back struck a wall at the time of the work incident in February of 2003. While LeAnne Harmsen testified that she witnessed the injury and that the employee did not hit the wall, the compensation judge obviously found the employee=s testimony more credible, as that is the testimony that she accepted. Assessment of a witness=s credibility is the unique function of the trier of fact, Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and we find no basis to conclude that the judge erred in this regard.
Also, contrary to the employer and insurer=s argument, Dr. Hillman did note objective findings on multiple examinations of the employee. She repeatedly found that the employee had muscle spasm in the left thoracic paraspinal, and she testified in her deposition that such findings were Aconsistent with her history and that they may be contributing to some of her pain complaints.@
Furthermore, while the employer and insurer contend that a 3-pound lifting restriction is not Acredible,@ that restriction was imposed by two doctors. Dr. Hillman initially set that restriction in October of 2004, and, in late November of 2004, Dr. Westberg, during conversation with Dr. Hillman, agreed. It is true that independent medical examiner Dr. Friedland did not think that the employee needed such a restriction, but a judge=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).
Finally, Dr. Hillman testified that the employee=s symptoms have been consistent with the history of injury related by the employee and that the employee has consistently had muscle spasm on examination.
The employee=s testimony, the records of the treating doctors, and the testimony of Dr. Hillman all provide substantial evidence to support the compensation judge=s findings regarding the nature of the work injury and the employee=s need for restrictions due to that injury. We therefore affirm on this issue.
The employer and insurer contend that it was unreasonable for the judge to conclude, given a diagnosis of only scapulothoracic pain, that the employee was not at MMI almost three years after the work injury. Finding substantial evidence to support the judge=s finding, we affirm.
The employer and insurer repeatedly suggest that Dr. Hillman found no objective findings on examination of the employee. However, as noted above, Dr. Hillman=s records repeatedly reflect muscle spasm or increased muscle tone in the thoracic paraspinal region. In her deposition, Dr. Hillman testified that increased muscle tone is the same as spasm.
Moreover, while Dr. Westberg did opine on March 10, 2003, that the employee had reached MMI by February 25, 2003, that opinion was based on a single examination of the employee on February 25, 2003, and representations by the employee, on that date, that she did not need physical restrictions. On October 14, 2003, Dr. Westberg noted that AI did check the maximum medical improvement as she felt after the first visit that this was a benign injury and thought it just best to be checked out.@
Dr. Hillman testified that the employee had not reached MMI as there had been improvement with Dr. Elghor=s treatment, and Dr. Hillman felt that additional follow up with Dr. Elghor could improve the employee further. Dr. Hillman testified that she hoped that both the employee=s pain and function could improve with further treatment.
While Dr. Friedland did opine that the employee had reached MMI, he found no muscle spasm at the time of his one examination on June 13, 2005, and incorrectly noted that Dr. Westberg had found the employee to be at MMI because Ahe felt that it was a benign injury.@ In fact, Dr. Westberg stated that it was the employee who felt that it was a benign injury the first time he treated her for that injury. Again, a judge=s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord, 360 N.W.2d 337, 37 W.C.D. 364. The employer and insurer have pointed to no specific facts assumed by Dr. Hillman that are not supported by the evidence.
3. Termination from Employment
The compensation judge found that the employee was not terminated from her employment due to misconduct. If the judge was correct in this regard, Minn. Stat. ' 176.101, subd. 1(e)(1), which precludes recommencement of temporary total disability benefits after an employee returns to work and is subsequently terminated for misconduct, does not apply. On appeal, the employer and insurer contend that the employee was in fact terminated for misconduct, as clearly stated in the termination documents.
The documentation that was submitted at hearing would suggest that this was a termination for misconduct. However, the compensation judge found the employee=s explanations plausible and credible and pointed out that the written warning after the November 2004 attendance problem was not submitted as an exhibit at hearing.
With regard to the November 2004, attendance issue, the doctor=s records and the employee=s testimony indicate that the employee=s release from work form was to be faxed to the employer prior to her scheduled work day. This was not done. The compensation judge accepted the employee=s testimony that she did not call the employer to tell them that she would not be reporting for work on November 20, 2004, because she thought Dr. Elghor=s office was going to notify the employer.
The employee also testified that on December 16, 2004, she understood that she was to report for work at 11:00 p.m. This is consistent with restrictions set by Dr. Hillman on December 14, 2006. The judge found this testimony to be credible. Assessment of credibility is the function of the trier of fact. Even, 445 N.W.2d 831, 42 W.C.D. 220.
The employer may well have been justified in terminating the employee for violation of the employer=s attendance policy. However, given the employee=s explanation for her actions, it was reasonable for the compensation judge to conclude that the employee=s conduct did not rise to the level of Awillful or wanton disregard of [the] employer=s interests as is found in deliberate violation or disregard of standards of behavior which the employer [had] the right to expect.@ Langworthy v. Signature Flight Support, slip op. at 3 (W.C.C.A. July 8, 1998), citing Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973). We therefore affirm the judge=s decision on this issue.
4. Temporary Total Disability Benefits
The compensation judge found that the employee=s pain and restrictions interfere with her ability to perform the functions of daily living and that she is Aunable to search for work.@ The judge went on to find that the employee had been temporarily totally disabled from December 20, 2004, through the date of the hearing. The employer and insurer contend that substantial evidence does not support these findings.
We note initially that, because the compensation judge provided no explanation in her memorandum regarding these findings, we are unable to ascertain what evidence she relied upon in finding the employee temporarily totally disabled based on an inability to search for work. The evidence indicates that the employee has had physical restrictions since at least June of 2004. At times, those restrictions have limited the employee to 3 pounds of lifting and no more than 8 hours of work per day; however, the employee was able to work within those restrictions until she was terminated by the employer in December of 2004.
The employee underwent treatment with Dr. Elghor on February 9, 2005, and March 9, 2005, but his records do not indicate that he restricted her from working following those treatments. On April 12, 2005, Dr. Hillman indicated that the employee could work with a 5-pound bilateral lift and carry limit, a 3-pound limit on lifting with outstretched left upper extremity, avoidance of repetitive use, and frequent change of positions. Dr. Hillman has not changed the employee=s restrictions since that time, nor has any other doctor imposed more severe restrictions or taken the employee off of work completely.
The employee testified that she had not looked for work in the last year or so because Aif I can=t do my household chores, I don=t understand how I can do anything else.@ However, there is no medical evidence that the employee is not physically able to work or look for work, there is no vocational evidence that the employee is not able to look for work or that a search for work would be futile, and the employee=s treating doctor has indicated that the employee is capable of working within restrictions. Accordingly, substantial evidence in the record as a whole does not support the judge=s award of temporary total disability benefits, and we reverse that award.