SCOTT P. McINTYRE, Employee, v. WILSON LINES of MINN., SELF-INSURED, MIDWEST SAFETY GROUP/ADMIN. CLAIMS SERVS., INC., Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 31, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony and the medical evidence, supports the compensation judge=s finding that the employee has bilateral hand and arm symptoms secondary to his work-related injury to the cervical spine on July 30, 2001.
EVIDENCE - RES JUDICATA. The finding, in a prior findings and order, that the employee was not permanently and totally disabled as of August 3, 2004, does not preclude a finding of permanent total disability from and after August 4, 2004. The employee need not, necessarily, provide evidence of a material change in condition, but is required only to provide proof of the existence of the claimed disability during the time for which benefits are claimed.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including both expert medical and vocational opinion, supports the compensation judge=s determination that a job search would have been fruitless, and that the employee was permanently and totally disabled, effective August 4, 2004.
Determined by: Johnson, C.J., Rykken, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: David R. Ludwigson, Ludwigson Law Office, White Bear Lake, MN, for the Respondent. Amy L. Borgeson, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellant.
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s finding that the employee suffers from bilateral hand and arm symptoms, and the finding that the employee became permanently and totally disabled on August 4, 2004. We affirm.
Scott P. McIntyre, the employee, began working for Wilson Lines of Minnesota, the employer, in September 1998 as a truck driver. On July 30, 2001, the employee sustained a personal injury to his cervical spine arising out of his employment. On that date, the employer was self-insured through Midwest Safety Group with claims administered by Administrative Claims Services, Inc. The self-insured employer admitted liability for the employee=s personal injury.
Following the injury, the employee treated with Dr. Kyja Stygar, his primary care physician. In August 2001, a cervical MRI scan showed a moderate disc protrusion at C3-4 effacing the thecal sac and mildly deforming the spinal cord and a large C5-6 disc protrusion indenting and moderately deforming the spinal cord. Dr. Stygar referred the employee to Dr. Srinvasan Purighalla, a neurosurgeon, who examined the employee in October 2001. Dr. Purighalla recommended a cervical diskectomy and fusion. Dr. Lowell Baker, a neurologist, initially examined the employee in December 2001 and followed with the employee occasionally thereafter. A repeat MRI scan at the office of Dr. Baker was unchanged and Dr. Baker agreed surgery was appropriate.
The employee filed a Medical Request and a hearing was held before Compensation Judge Jeanne Knight. In a findings and order, served and filed May 2, 2002, the compensation judge found the proposed surgery was reasonable, necessary and causally related to the employee=s personal injury. In June 2002, Dr. Art Camacho performed decompressive laminectomy surgery from C3 to C6 with lateral foraminatomies from C4 to C6. Following the surgery, the employee continued to complain of pain in his neck and shoulders. An MRI scan demonstrated the employee=s spinal cord was free of compression but with a reversal of the normal cervical lordotic curvature that affected the vertebra from C3 to C6. In January 2003, Dr. Camacho performed fusion surgery with instrumentation from C3 through C6. A post-surgical mylogram and CT scan demonstrated the spinal cord was well decompressed and the fusion was solid with no evidence of foraminal stenosis. In May 2003, Dr. Camacho felt the employee was at or near maximum medical improvement.
Dr. Baker released the employee to return to work in May 2003, with restrictions of only occasional carrying and lifting up to ten pounds and no repetitive activities at or above shoulder level. In June 2003, Dr. Baker opined the employee was permanently precluded from returning to work as an over-the-road truck driver and recommended vocational rehabilitation. The doctor also provided a 32 percent whole body disability rating. A functional capacity evaluation (FCE) in August 2003, demonstrated the employee=s work capabilities were at the sedentary to light physical demand level and a three to four hour work day with restrictions on most physical activities was recommended. Dr. Baker then released the employee to light or sedentary work for up to 20 hours a week in accordance with the limitations specified in the FCE.
John Hjelmeland, a qualified rehabilitation consultant (QRC), began providing rehabilitation services to the employee in December 2001. A Job Placement Plan Agreement (JPPA) was signed in September 2003. The areas for job search under the JPPA were retail, front desk, bank teller, car runner/light delivery and paper server. On September 22, 2003, the employee accepted a position with Lantz Farms where he worked until he was laid off in January 2004. Thereafter, the employee performed a limited job search from mid-January to early February 2004, and from July 6, 2004, through August 3, 2004. Rehabilitation services were closed in November 2004.
In February 2004, the employee returned to see Dr. Baker complaining of swelling, burning and dysesthesia in both hands. Dr. Baker referred the employee back to Dr. Stygar. Tests for rhuematoid arthritis were negative, and Dr. Stygar diagnosed possible reflex sympathetic dystrophy (RSD). Dr. Baker removed the employee from work effective March 25, 2004, and released him to return to work on July 6, 2004.
Dr. Richard Galbraith, a neurologist, had examined the employee on October 14, 2003, at the request of the appellant. The doctor gave an 18 percent permanent partial disability rating and opined the employee had reached maximum medical improvement in July 2003. Dr. Galbraith re-examined the employee in June 2004. At that time, the doctor found no evidence of RSD or complex regional pain syndrome (CRPS) because the employee did not evidence five of the eight criteria under Minn. R. 5223.0410, subp. 6. Dr. Galbraith stated he found no cause for the employee=s continued disability following the two surgeries, but opined the employee would be unable to return to work as a truck driver. The doctor imposed a weight lifting restriction of 40 to 50 pounds but otherwise concluded the employee could work eight hours a day, five days a week.
David Berdahl, a vocational consultant, performed a vocational evaluation of the employee in February 2004. Based upon Dr. Baker=s opinion that the employee could work 20 hours a week within the limitations of the FCE, Mr. Berdahl opined the employee had access within his region to entry level employment jobs with starting wages in the range of $7.00 to $9.00 per hour. Mr. Berdahl recommended the employee be provided placement services to assist him in pre-screening jobs for suitability and setting up interviews.
By report dated July 8, 2004, Dr. Baker concluded the employee had a variant of RSD secondary to his work injury and surgeries. The doctor opined the employee could work three to four hours a day, 15 to 20 hours a week within the restrictions set out in the FCE. Dr. Stygar re-examined the employee on July 15, 2004. Her diagnosis was a cervical neck injury with two surgeries and radicular components with concurrent RSD symptoms. She noted the employee was then taking Methadone, Vicodin, Neurontin, Ambien and Wellbutrin. Dr. Stygar opined the employee was not able to engage in meaningful employment.
The employee filed a claim petition seeking permanent total and permanent partial disability benefits. The case was heard by Compensation Judge Behr on August 3, 2004. In a findings and order, the compensation judge found the employee sustained a 32 percent whole body disability as a result of his personal injury. The judge further found the employee was capable of performing light to sedentary work for up to 20 hours a week and found the employee had not proven he was physically incapable of performing gainful employment and denied the employee=s claim for permanent total disability benefits. In a memorandum, the compensation judge stated:
To date, the placement attempts have been quite limited. The employee obtained his job with Lentz within approximately one month after the FCE was obtained. He apparently discontinued his job search while working for Lentz, even though his hours were very limited. After this job ended he performed a minimal job search from mid January to mid February of 2004, when Dr. Baker removed him from work. Finally, he was released to look for work again only one month before the date of hearing. Job logs demonstrated only a limited search for three brief time periods. The placement specialist suggested that the employee=s efforts needed impromement. There was some evidence that his job search was hampered in part by lack of a telephone and limited access to transportation, barriers which did not exist on the date of injury. While I recognize that these are economic factors which make a job search more difficult, they are not relevant to the question of the employee=s disability status.
I cannot agree on this record that the employee has proven that he is so disabled that a search for work within the limitations of the FCE would necessarily prove fruitless. The employee is 48 years old. He has a high school education and although he has worked in mostly unskilled or semi-skilled occupations he has held a variety of jobs, including driving, construction, logging and operating his own business. He expresses a desire to work. To date the job search has been quite limited. Permanent total disability has not been proven.
Following the August 2004 hearing, the employee treated exclusively with Dr. Stygar. The employee returned to see Dr. Stygar in November 2004, complaining of chronic neck pain, insomnia and depression. The doctor prescribed Fluoxetine for depression. In a December 2004 medical report, Dr. Stygar stated that even with significant work place modifications, the employee could only work Aa couple of hours a day.@ The doctor further stated, Aa work day for Scott with modifications would include work activities for maybe a half an hour with intervening rest periods of one or two hours.@ (Pet. Ex. G.) Dr. Stygar opined the employee was not able to engage in sustained gainful employment on a competitive basis and opined the work injury was a substantial contributing cause of this disability. In March 2005, the employee complained of chronic neck pain with an onset of low back pain limiting his ability to sleep. Dr. Stygar diagnosed chronic pain secondary to a cervical spine injury and RSD. In September 2005, Dr. Stygar=s diagnosis remained chronic neck pain as a result of neck surgery and RSD. The doctor increased the employee=s dosage of methadone. In March 2006, Dr. Stygar diagnosed chronic neck pain and discomfort with complex regional pain syndrome/RSD and mood disorder/depression.
Dr. Galbraith re-examined the employee on March 1, 2005. On examination the doctor noted moderate restriction of the employee=s cervical spine with normal muscle strength. The doctor diagnosed post-operative decompressive surgery in June 2002 and a discectomy and fusion in January 2003, with restriction of neck motion as a result of both surgeries. Otherwise, Dr. Galbraith noted, the employee=s neurologic examination was normal without signs of RSD. The doctor again opined the employee did not qualify for a diagnosis of RSD. The doctor stated the employee needed no further medical care or treatment, and opined the employee could work full-time, 40 hours a week with a 50-pound weight lifting restriction. Dr. Galbraith opined the employee was not permanently or totally disabled.
By report dated April 11, 2006, Dr. Galbraith responded to a letter from the attorney for the appellant. The doctor reviewed the employee=s medication program and opined the employee should not be taking narcotic medication such as Vicodin, Methadone, Hydrocodone, Fluoxetine and Phenylephrine which are habituating and addictive. The doctor stated, A[a] combination of one or more of these drugs could make this man a hazard in operating any kind of a motor vehicle or subject him to injury if he is taking one or more of them in combination; if he is taking all of them, this man should never drive a car or work around machinery. I think that it is totally inappropriate that he has been given all of these medications for subjective symptoms without any objective findings and they should be discontinued immediately.@ (Pet. Ex. T.)
In a subsequent report, Dr. Galbraith again reviewed the medications the employee was taken together with information from the Physician=s Desk Reference regarding the recommended dosages, precautions and adverse reactions for those drugs. The doctor stated,
In regards to Mr. McIntyre=s current use of the narcotic and psychotropic medications, based on the facts that I have stated above, he has been able to operate a motor vehicle without complications, I believe that Mr. McIntyre is not permanently and totally disabled or precluded from operating a motor vehicle based on those facts. The fact that he has continued for 2 2 to 3 years to operate a motor vehicle to the present time and, in spite of using both the narcotic and psychotropic pain medications dating back to at least October of 2003, I would have to agree with Mr. Hjelmeland=s description of the precautions pertaining to Mr. McIntyre=s current medications and specifically those precautions indicating that he should not drive, operative heavy machinery or do anything else that could be dangerous until he definitely knows how he reacts to these medications. It is quite apparent that he has been able to handle these medications without posing a significant risk to himself or others for the last 2 2 to 3 years.
I conclude by stating that I have seen Mr. McIntyre on five different occasions since 2002 for the purpose of doing an independent medical examination but I am not his treating physician and, as long as Dr. Klessig, who has prescribed these medications since October of 2003 and was aware that he was operating a motor vehicle and did not feel that he was a risk and never told the patient that he could not operate a motor vehicle, it is this examiner=s judgment that Mr. McIntyre is not permanently and totally disabled nor is he totally precluded from operating a motor vehicle based on those facts. It appears that Mr. McIntyre knows how he reacts to these medications and has been able to function with these medications without a significant risk.
(Resp. Ex. 8.)
In December 2004, the employee filed another claim petition alleging permanent total disability benefits from August 4, 2004. The case was again heard before Compensation Judge Behr. In a findings and order filed June 16, 2006, the compensation judge found the employee suffered from bilateral hand and arm symptoms, including pain and swelling, that resulted from the July 30, 2001, personal injury but found the employee failed to prove his symptoms were caused by RSD or CRPS. The judge found the employee failed to prove he engaged in a reasonable and diligent job search from August 3, 2004, through the date of the hearing, but found the employee was disabled to such an extent that a job search would have been fruitless. The compensation judge further found the employee was physically incapable of working and awarded permanent total disability benefits from August 4, 2004, and continuing. The employer appeals.
1. Arm and Hand Pain
The compensation judge found the employee did not have RSD or CRPS in his hands or arms. But, the judge did find that the employee suffers from bilateral hand and arm symptoms, including pain and swelling, secondary to the personal injury. The appellant contends there is inadequate medical support for the latter finding and asserts it is unsupported by substantial evidence. We are not persuaded.
The employee testified he has pain in his neck and shoulders which radiates into his arms. He testified his hands and fingers swell and his fingers curl up. In addition, the employee stated his hands change color and get shiny. He testified the more he uses his arms and hands the more swelling and pain he experiences.
In the October 7, 2004, findings and order, the compensation judge found the employee suffered from neck and radicular pain secondary to the surgeries. Dr. Baker=s records reflect examination findings of burning, swelling and redness of both hands. The doctor noted the employee complained of pain and difficulty opening and closing his hands which the doctor related to the employee=s cervical spine surgery. Although Dr. Baker diagnosed a variant of RSD, the doctor stated the employee=s condition Ais one that I have seen many times with patient=s [sic] who have cervical spine injury and/or severe injuries. The condition is usually intermittent in nature and accentuated with continuous or repetitious exertion of the arms and hands.@ (Pet. Ex. H.) In 2004 Dr. Heidi Klessig opined the employee did not have a Aclear cut case of RSD.@ She stated, however, AI do think it is more likely that Mr. McIntyre=s work injury resulting in multiple cervical surgeries is indeed a substantial contributing cause of the difficulty he is presently having whether or not they represent RSD or a cervical myelopathy.@ (Pet. Ex. M.) Dr. Stygar=s examination findings included decreased cervical range of motion, temperature change and mottling of the skin in the employee=s hands together with glossiness and swelling, decreased left hand grasp and pincher strength and decreased left triceps and deltoid strength. The doctor stated the employee suffered from radicular arm symptoms secondary to his injury and the two surgeries which limited his ability to work with his hands.
The compensation judge=s finding that the employee has bilateral hand and arm symptoms secondary to the personal injury is supported by the testimony of the employee and his medical evidence. Accordingly, that finding must be affirmed.
2. Collateral Estoppel
Following the hearing in 2004, the compensation judge found the employee was not permanently and totally disabled on August 3, 2004. After the hearing in 2006, the compensation judge found the employee was permanently and totally disabled effective August 4, 2004. The appellant contends there is no factual, legal or logical basis for the finding the employee was permanently and totally disabled on August 4, 2004. The appellant contends, it is the law of the case that as of August 3, 2004, the employee was not totally disabled. The facts of the case, the appellant argues, did not change within 24 hours. Accordingly, the appellant contends the compensation judge=s finding must be reversed.
The principles of res judicata are applicable in workers= compensation proceedings. Abrahams v. University of Minn., Duluth, 61 W.C.D. 103 (W.C.C.A. 2001). The doctrine precludes litigation of issues and claims that were in fact decided in an earlier decision. Fischer v. Saga Corp., 498 N.W.2d 449, 450, 48 W.C.D. 368, 369 (Minn. 1993); Westendorf v. Campbell Soup, 243 N.W.2d 157, 28 W.C.D. 460 (Minn. 1976).
Collateral estoppel is a limited form of res judicata whereby a prior judgment is conclusive in a later suit between the same parties as to issues finally decided in the former suit. Travelers Ins. Co. v. Thompson, 163 N.W.2d 289 (Minn. 1969). The Minnesota Supreme Court has held that the principles of collateral estoppel are appropriately applied in the following circumstances: (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. Nelson v. American Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2002), Willems v. Commissioner of Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983). The court has also held that Aneither collateral estoppel nor res judicata is rigidly applied@ and that the focus is on Awhether its application would work an injustice on the party against whom estoppel is urged.@ Johnson v. Consolidated Freightways, 420 N.W.2d 608, 613-614 (Minn. 1988).
The appellant acknowledges res judicata does not preclude a finding of permanent total disability after August 3, 2004. However, the appellant argues the employee must prove some material change in his condition between August 3 and August 4, 2004, to be entitled to permanent total disability benefits. Absent any change in circumstances or the employee=s condition, the appellant argues there is no basis to conclude the employee was able to work on August 3 and totally disabled on August 4, 2004. We disagree.
In Lindberg v. J.D. Enter., 543 N.W.2d 90, 54 W.C.D. 52 (Minn. 1996), the Supreme Court reversed a decision of the Workers= Compensation Court of Appeals holding that where the same claim is later asserted for a subsequent time period, evidence of a change in the employee=s condition or circumstances must be established which reasonably supports a different result at the second hearing. In its decision, the Supreme Court cited Hirt v. Leader Hardware & Furniture Store, 309 Minn. 572, 244 N.W.2d 269, 29 W.C.D. 10 (1976), which states Athe evidence needed to prove the likelihood of a disability continuing indefinitely into the future is far different than that required as a part of a claim made some time in the future to prove the actual existence of the same disability during the interim.@ The court went on to say that the denial of a claim for continuing temporary total disability does not increase the employee=s burden to prove a later claim for temporary total disability for a period subsequent to the date of the first hearing. Accordingly, the Lindberg court held that Awhat is required is proof of the actual existence of a disability during the period of time for which benefits are claimed. As a practical matter, this may entail new evidence covering the subsequent period of time, but it is not necessarily the same as evidence of a material change in condition which is commonly associated with reopening an award.@ Accordingly, the issue in this case is whether substantial evidence before the compensation judge supports the award of permanent total disability benefits.
3. Permanent Total Disability
The appellant contends the compensation judge=s finding that the employee is permanently and totally disabled is unsupported by substantial evidence. The appellant points to the fact the employee made no job search after August 3, 2004, and was then under no different restrictions than he was at the time of the first hearing. In July 2004, Dr. Baker opined the employee could work on a part-time basis within the restrictions set out in the FCE. Dr. Galbraith opined the employee could work on a full-time basis subject to a lifting restriction. The appellant argues the medical and vocational evidence demonstrating a job search would be fruitless is no different than it was at the first hearing in August 2004. Further, the employee=s condition, the appellant asserts, did not change in any material way between the time of the two hearings. Accordingly, the appellant contends the award of permanent total disability benefits must be reversed because it is not based on substantial evidence. We disagree.
The employee testified his condition has worsened since the August 2004 hearing, and his use of pain medication has increased. By March 2006, the employee testified, he was spending as much as 80 percent of his day in bed and stated he needed to rest after only one or two hours of activity. This testimony was corroborated by Bruce Sieben, a friend of the employee=s.
John Hjelmeland, the employee=s QRC, performed a labor market survey in the area of Menomonie and Eau Claire, Wisconsin. The QRC testified the major groupings of occupations in that area were medical-related jobs, production and manufacturing jobs, and service-related jobs such as retail, hotel, food service and semi-skilled jobs which are customarily part-time. He noted the student population in the area was a significant factor in the availability of entry-level jobs. Considering the employee=s education and skills together with the restrictions imposed by Dr. Stygar, Mr. Hjelmeland concluded the employee was not able to sustain gainful, competitive employment. He further concluded the drugs the employee was taking had a negative impact on his ability to work, drive long distances and work around machinery. The QRC testified he has never found work that would be available within the restrictions outlined by Dr. Stygar in her December 1, 2004, medical report.
In November 2005, Mr. Berdahl reviewed additional medical records, the hearing transcript from the prior hearing, the deposition of the employee, Social Security records and the records and reports of Hjelmeland Rehabilitation Consultants, Inc., and prepared a second report. In addition, Mr. Berdahl attended the April 18, 2006, hearing, and testified at the hearing. Mr. Berdahl stated he followed up with two of the employers identified in Mr. Hjelmeland=s labor market survey and concluded part-time entry-level positions existed within the employee=s physical capabilities. Further, Mr. Berdahl testified his labor market survey showed a number of employers who reported frequent hiring activity due to high turnover. Mr. Berdahl opined the employee had done no job search since the prior hearing and that nothing had changed from a vocational perspective since the first hearing. Assuming the restrictions outlined in the functional capacity evaluation, Mr. Berdahl opined the employee was not permanently and totally disabled. Assuming, however, the restrictions set out by Dr. Stygar, Mr. Berdahl opined the employee was permanently and totally disabled because there were no types of employment within those restrictions.
The compensation judge accepted the opinions of Dr. Stygar regarding the employee=s restrictions and level of function over the opinion of Dr. Galbraith. It is the function of the compensation judge to choose between conflicting medical opinions and, absent a clear foundational defect in the opinion relied upon, this court must affirm the compensation judge=s choice. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s findings must be affirmed Aif, in the context of the record as a whole, they are supported by evidence that a reasonable mind might accept as adequate.@ This court must give due weight to the opportunity of the compensation judge to judge credibility and Awhere the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be affirmed.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). We conclude the findings of the compensation judge have adequate evidentiary support and, accordingly, affirm.