STEPHANIE M. STRAND, Employee, v. UNITED STATES STEEL CORP., SELF-INSURED, Employer/Appellant, and MINNESOTA CLINICAL & NEUROPSYCHOLOGICAL ASSOCS., CHAFFEE CHIROPRACTIC, P.A., MN DEP=T OF EMPLOYMENT & ECON. DEV., and MN DEP=T OF LABOR & INDUS./VOCATIONAL REHAB. UNIT, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 28, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee sustained permanent injuries to her neck and low back as a result of her work-related accident.
TEMPORARY PARTIAL DISABILITY; EARNING CAPACITY. Where the employee was working full time, with substantial overtime, on the date of injury, and she was not restricted as to hours, worked only part time, and did not look for other work after the injury, the compensation judge erred in applying the presumption that actual earnings are representative of the employee=s earning capacity.
Affirmed in part, reversed in part, and remanded.
Determined by: Wilson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: David C. Wulff, Law Office of David C. Wulff, Roseville, MN, for the Respondent. James P. Paciotti, Law Offices of James P. Paciotti, Duluth, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge=s decision as to the nature and extent of the employee=s work injuries and as to causation of the employee=s post-injury wage loss. The employee asks this court for an award of penalties, contending that the employer=s appeal is frivolous. We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion. The employee=s request for penalties is denied.
The employee originally commenced employment with United States Steel Corporation [the employer] in 1979, working off and on for the first ten years, due in part to layoffs, and then working steadily for the employer from July of 1989 until March of 2005. At some point in her career, the employee was assigned to drive a production truck. As the employee described it, a production truck is the size of a story-and-a-half house - - 40 feet long, 24 feet wide, and 30 feet high - - and weighs more than 800,000 pounds when fully loaded.
In the early morning hours of March 16, 2005, the employee lost control of the production truck while reaching for something that had fallen to the floor of the cab. The truck left the mine road, hit a berm, and rolled over onto its roof. When the truck came to rest, the employee unhooked her lap belt, opened the door of the truck, and climbed up an embankment of rocks before using her cell phone to notify the employer of the accident. After reporting the accident, the employee climbed down to the truck to retrieve a library book and then climbed back up the embankment to wait for help.
The employee=s foreman, Robert Preston, arrived at the scene about five to ten minutes after the accident. The employee told Preston that she was fine but that the truck was wrecked. Preston testified that the employee did not appear to be injured, except for a mark or abrasion above her eye, and that the employee did not complain to him of pain that night. Preston drove the employee to the hospital for alcohol and drug testing, and she was examined there by Dr. Carmen Johnson.
Hospital records indicate that the employee had a cut above her eye, a bruise on her right hip, and pain in her right hip and leg. Dr. Johnson administered an injection of Torodol and advised the employee to take Naprosyn, as necessary, for pain. The employee testified that Dr. Johnson also advised her to see her usual physician Aimmediately the next day.@ However, in a report of work ability completed on the night of the accident, Dr. Johnson indicated that the employee could return to work without restrictions.
After the employee=s discharge from the hospital emergency room, Preston took the employee back to the employer=s office for a meeting about the accident. When the meeting ended, the employee=s housemate picked her up and brought her home. The employee testified that she fell asleep at about 5:00 a.m. and that, when she woke up, could barely move due to pain and stiffness. She therefore made arrangements to see Dr. Sarah Chaffee, D.C., that afternoon.
The employee had received treatment from Dr. Chaffee, for neck and back symptoms, since 2003 - - which the employee described as Amaintenance@ care. She testified, however, that her symptoms were different and much worse after the March 16, 2005, accident. In a narrative report prepared later, Dr. Chaffee described the employee=s March 16, 2005, office visit as follows:
Ms. Strand first presented to my clinic for evaluation and treatment on March 16, 2005, approximately 10-14 hours after the incident occurred. Her presenting complaints included tenderness in her face which had swollen from the impact of the fall; achiness in the eye sockets; ringing in both ears; a severe headache located in the top of her head; some confusion and cognitive deficits including having to spend more time and effort to remember how to perform simple tasks such as putting her car into reverse; severe bilateral pain in the cervical spine; severe pain in both shoulder/trapezius regions, greater on the right with extension into the right arm and wrist; severe bilateral upper back pain; severe low back pain that Ms. Strand compared to Aback labor@; severe right hip pain extending into her right thigh, knee and lower leg; and a visible 3" x 5" contusion on her hip.
My clinical examination of Ms. Strand on March 16, 2005, confirmed a visibly decreased cervical curve consistent with muscle spasm; anterior head carriage consistent with muscle spasm; visible redness and swelling of the face and especially around the right eye, forehead and bridge of the nose; marked pain to palpation at the cervical, thoracic, and lumbar regions of the spine; moderate muscle spasm in the cervical paraspinals, trapezius and anterior scalenes, bilaterally but greater on the right; severe muscle spasm in the thoracic paraspinals, rhomboids, lumbar paraspinals, gluteals, piriformis and hamstrings; decreased active and passive ROM in all planes, with pain, in the cervical and lumbar regions; hyperesthesia in the areas of spasm and tenderness; and multiple positive orthopedic tests including, Lindner=s, Soto Hall, Jackson=s, Spurling=s, Distraction, Percussion, Shoulder Depression, Lasegue, Straight Leg Raise, and Ely=s.
My initial assessment of injuries Ms. Strand suffered as the result of the incident of March 16, 2005, included: severe musculoligamentous strains/sprains of the cervical, thoracic and lumbar regions resulting in muscle spasms, instability and subluxations at multiple vertebral levels; contusion to the face above the right eye; contusion to the hip; traumatically induced headache; and a possible closed head injury.
At that time, Dr. Chaffee issued restrictions as follows: Ano climbing, pushing, lifting, pulling over 15 lbs., no running, no heavy vibration - - mechanical equipment.@ The employee was also advised to stretch for five minutes every hour.
The following morning, on March 17, 2005, the employee was seen at the employer=s dispensary by Dr. Brian Pfeifer. In his office notes, Dr. Pfeifer indicated that the employee appeared to be suffering from Amostly muscle strain,@ and he advised the employee Athat today and tomorrow were going to be the worse [sic] days and then she should start to feel better.@
The employee took vacation leave following the accident, pending completion of the employer=s investigation. On March 24, 2005, Dr. Chaffee took the employee off work through April 10, 2005. In the interim, on March 31, 2005, the employer notified the employee that it had decided to terminate her from employment on grounds that her carelessness had caused the accident, which had resulted in $580,000.00 worth of damage to the production truck. The employee later unsuccessfully challenged the termination in grievance proceedings.
On April 9, 2005, the employee commenced part-time employment for the Center for Independent Living. The job involved caring for children with special needs, in a home setting, and paid $11.00 an hour.
The employee continued to receive treatment from Dr. Chaffee after obtaining employment. Symptoms noted in Dr. Chaffee=s records included continuing low back and neck pain, headaches, and possible cognitive problems. In May of 2005, Dr. Chaffee referred the employee for MRI scans of the cervical spine, lumbar spine, and brain. The MRI of the brain was negative but suggested sinusitis. The cervical and lumbar scans disclosed degenerative changes at multiple levels. The employee also had a neuropsychological evaluation, conducted by Dr. Tom Misukanis, and was referred by Dr. Chaffee for several rounds of physical therapy.
On August 7, 2005, the employee left her position at the Center for Independent Living and began looking for other employment. She testified that she contacted a temporary staffing agency but was told that she did not have necessary office or computer skills. On September 1, 2005, a few weeks after leaving her previous job, the employee began working, again part time, for North Star Specialized Services, Inc. The job paid $9.25 an hour, to start, and also involved working, in home, with special needs children. Because of the large disparity between her pre- and post-injury earnings, the employee received unemployment compensation, in addition to her pay, while in both jobs.
In mid-November of 2005, following a request by her attorney, the employee began receiving rehabilitation assistance from QRC Helen Thran of the Vocational Rehabilitation Unit of the Minnesota Department of Labor and Industry. Also in the fall of 2005, the employee began the process of qualifying to work as a paraprofessional for the school district in her hometown of Virginia, Minnesota. In January of 2006, the employee began working, part time, for the school district, while continuing to work part time for North Star Specialized Services. When the school year ended, the employee went to work full time for North Star.
In response to the employee=s claim for benefits related to the March 16, 2005, accident, the employer had the employee evaluated by Dr. Nolan Segal. In his January 17, 2006, report, Dr. Segal indicated that the employee showed signs of functional overlay, or possibly even malingering, that the employee=s lumbar and cervical degenerative changes were unrelated to her March 16, 2005, work accident, that the employee had no need of any restrictions as a result of that accident, and that the employee=s treatment after April 1, 2005, was not Aeven remotely related to the March 16, 2005, alleged injury.@
The employee was also evaluated by Dr. Ronald Tarrel, D.O., on referral from Dr. Chaffee. Dr. Tarrel concluded that the employee had sustained cervical and lumbar sprains, with associated headaches and mid back pain, as a result of the March 16, 2005, accident, and he classified the injuries as permanent. Dr. Tarrel also reported that the employee had a 7% and a 3.5% permanent partial disability and that she would be permanently restricted to moderate lifting, carrying, and pushing/pulling as a result of her injuries.
In a May 2006 report, Dr. Chaffee agreed with Dr. Tarrel=s assessment as to causation and permanent partial disability, and she recommended permanent restrictions, as follows:
In my opinion, Ms. Strand=s condition does require permanent work and activity limitations. I would advise her not to lift, carry or push/pull any weights over 10 pounds; not to bend or twist at the waist for prolonged periods or repetitively; not to work in static positions with her head in a forward flexed position; not to work with her arms extended out in front of her or above shoulder height for prolonged periods; not sit or stand for prolonged periods, and to take at least 5 minutes to stretch and rehydrate after every 30 minutes of work.
The matter came on for hearing before a compensation judge on June 22, 2006. Issues included the nature and extent of the March 16, 2005, work injury, the employee=s weekly wage on the date of injury, and the employee=s entitlement to wage loss benefits, permanent partial disability benefits, medical expenses, and rehabilitation benefits.
In a decision issued on August 21, 2006, the compensation judge concluded that the employee had sustained permanent injuries due to the March 16, 2005, accident, resulting in a 3.5% whole body impairment related to her cervical condition and a 7% whole body impairment related to her lumbar condition; that the employee=s weekly wage on the date of injury was $1,459.31; that the employee was entitled to wage loss benefits, as claimed, through the date of hearing; and that the employee was entitled to rehabilitation assistance. All claimed treatment expenses were awarded, with the exception of expenses for chiropractic treatment rendered after August 30, 2005. The employer appeals.
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. Permanent v. Temporary Injury
The compensation judge concluded that the employee had sustained permanent injuries as a consequence of the March 16, 2005, work accident, resulting in permanent partial disability and the need for restrictions on her activities. In reaching this conclusion, the judge expressly rejected the opinion of Dr. Segal, the employer=s independent examiner, who had issued a report indicating that the employee had sustained temporary injuries, at most, which had resolved within a few weeks of the accident.
On appeal, the employer contends that the compensation judge=s decision is not supported by substantial evidence. More specifically, the employer argues that the compensation judge erred in relying on the report of a Achiropractor friend [Dr. Chaffee] and a medical legal consultation with Dr. Tarrel@ and in failing Ato consider the evidence which indicated that there was no true, physiological disability in connection with the actual injuries sustained in the accident.@
We are not persuaded by these arguments. The fact that Dr. Chaffee happens to be the employee=s friend was for the compensation judge to weigh and provides no grounds for reversal on appeal. It is also clear to us that the judge did in fact consider evidence contrary to the employee=s position, in that the judge expressly rejected Dr. Segal=s opinion as to the nature and extent of the employee=s injuries.
The employer also contends that the opinions of Dr. Chaffee and Dr. Tarrel lack foundation, in that Ait appears@ that neither doctor was aware that the employee had received treatment from other chiropractors prior to the March 16, 2005, accident. However, having treated the employee since at least 2003, Dr. Chaffee was clearly in a position to offer a causation opinion, and she wrote that, Ahaving treated [the employee] off and on since May 12, 2003,@ AI can state without a doubt that [the employee=s] condition was permanently altered by the incident of March 16, 2005, and that this work injury should be considered the substantial cause of her current symptoms, disability, and need for treatment.@ The compensation judge also found the employee credible with respect to her testimony about the course of her symptoms following the truck accident. Generally, credibility assessments are for the compensation judge. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
The compensation judge=s decision that the employee sustained permanent work-related injuries to her neck and low back is amply supported by the record as a whole, including the opinions of Drs. Chaffee and Tarrel. We therefore affirm that decision. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985) (a compensation judge=s choice between conflicting expert opinions is generally upheld unless the facts relied upon by the expert are not supported by substantial evidence).
2. Temporary Total Disability Benefits
The compensation judge awarded the employee temporary total disability benefits for two short periods of unemployment following her March 16, 2005, work injury: from March 16, 2005, through April 8, 2005, and from August 8, 2005, through August 31, 2005.
The judge=s decision as to the employee=s first period of unemployment is clearly supported by the record. The employee was not notified of her termination by the employer until March 31, 2005, and Dr. Chaffee had restricted the employee from all work from March 24, 2005, through April 10, 2005. The judge=s award of temporary total disability benefits from March 16, 2005, through April 8, 2005, is therefore affirmed.
The evidence supporting the award of temporary total disability benefits during the employee=s second period of unemployment is somewhat less compelling. However, the employee testified that she checked with a temporary staffing agency, applied for a job with North Star Specialized Services, and had two interviews with North Star during this period. The compensation judge found the employee=s job search to be reasonable, and, given the short duration of the period at issue - - only about three weeks - - and the absence of rehabilitation assistance, we cannot conclude that the judge=s decision is clearly erroneous or unsupported by the record. We therefore affirm the award of temporary total disability benefits for this period as well. See Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).
3. Temporary Partial Disability
To prove entitlement to temporary partial disability benefits, an employee must generally establish that he or she has a work-related disability and a loss of earning capacity causally related to that disability. Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990). In the present case, the compensation judge awarded the employee temporary partial disability benefits, based on actual earnings, during all periods of employment between the date of injury and the date of the hearing. On appeal, the employer contends that the compensation judge erred in concluding that the employee=s wage loss was causally related to her work injury and resulting restrictions.
One of the employer=s primary arguments appears to be that the employee=s wage loss was due solely to economic factors, in that jobs with the employer allegedly pay substantially more than other positions in the local labor market, and, the employer maintains, the employee stopped working for the employer only because she was terminated for negligence, not because of her work injury. The compensation judge did not directly address this theory. However, the QRC=s records indicate that the employee=s restrictions would preclude her from returning to her pre-injury job as a production truck driver. As such, it is reasonably inferable that the employee would not be working for the employer as a driver even if she had not been terminated. Moreover, the only evidence in the record suggesting that the employer pays more than other area employers is the employee=s testimony that Ait would be difficult for [her] to match the wage [she] was getting at [the employer] . . . irrespective of her medical problems.@ The employer submitted absolutely no other evidence concerning the local labor market. Under the circumstances, the record as a whole simply would not support the conclusion that the employee=s post-injury wage loss was due solely to economic factors. As such, we see no reason to remand the issue to the compensation judge.
We are also satisfied that the compensation judge properly awarded the employee wage loss benefits after November 17, 2005, the date the employee began receiving rehabilitation assistance. The compensation judge expressly found that the employee had cooperated with rehabilitation assistance, and the employer does not argue otherwise on appeal, contending, instead, that the judge=s cooperation finding is Aillusory since [the QRC] did not have the employee sign a JPPA and the employee was not subject to any job search guidelines or requirement.@ We are not, however, convinced that the absence of a JPPA is determinative, and, given the judge=s undisputed finding of cooperation with rehabilitation assistance, we affirm the award of temporary partial disability benefits from November 17, 2005, through the hearing date. See e.g., Schreiner v. Alexander Constr., 48 W.C.D. 469 (W.C.C.A. 1993) (it is not so much the employee=s job search but rather the employee=s cooperation with rehabilitation that is important in evaluating a claim for wage loss benefits).
The judge=s award of temporary partial disability benefits prior to November 17, 2005, is problematic. It is undisputed that the employee was only working part time during this period and that she never in fact applied for any full-time employment. Moreover, the employee admitted at hearing that she made virtually no effort to find additional employment to mitigate her wage loss, even though physicians had imposed no restrictions on the hours she could work, and she had worked full time, with substantial overtime, in her pre-injury job.
In his findings, the judge concluded that the employee=s actual earnings represented her earning capacity, and he explained in his memorandum that his conclusion to this effect was based on the employer=s failure to rebut the presumption that post-injury earnings are representative of an injured employee=s ability to earn. See, e.g., Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960). However, given the employee=s part-time employment status and lack of job search, the presumption does not apply here. See Kunferman v. Ford Motor Co., 65 W.C.D. 198, 209 (W.C.C.A. 2004) (Athe presumption that the employee=s earnings . . . represent her earning capacity does not apply, since the employee, who worked full-time when injured and . . . was released to full-time work, only worked on a part-time basis and made no effort to seek additional work hours@); see also Yacoub v. American Nat=l Ins., 60 W.C.D. 168, 177 (W.C.C.A 2000) (A[w]here a disabled employee is released to full-time work but obtains only part-time work, the employee may be eligible for temporary partial disability benefits if the employee can demonstrate that part-time work was the only work available to him as a result of his disability@). We therefore reverse this portion of the judge=s award and remand for a factual determination as to whether the employee=s wage loss during this period was causally related to her work injury and resulting disability.
The employee contends that a penalty should be awarded by this court, pursuant to Minn. Stat. ' 176.225, subd. 1(a), on grounds that the employer=s appeal Aconstitutes a proceeding or defense which does not present a real controversy but which is frivolous and for the purpose of delay.@ See id. We are not persuaded. Some of the issues on appeal were close, and the employer in fact prevailed, at this stage in the proceedings at least, with respect to a period of temporary partial disability benefits. Concluding that the employer=s appeal cannot fairly be characterized as frivolous, we deny the employee=s request for a penalty.