JIM BOYD, Employee/Appellant, v. JAMAR CO. and BROADSPIRE, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 22, 2008
CAUSATION - TEMPORARY INJURY. Substantial evidence, including the employee’s treatment records, supported the compensation judge’s conclusion that the employee’s work injury was a temporary lumbar strain that had resolved by January 24, 2007, and, because the employee had made no job search whatsoever prior to that date, despite having been released to light-duty work, the judge did not err by allowing discontinuance of temporary total disability benefits effective January 16, 2007.
Determined by: Rykken, J., Stofferahn, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Russell G. Sundquist, Sundquist & Assocs., St. Paul, MN, for the Appellant. Jay T. Hartman and Elizabeth Chambers-Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.
MIRIAM P. RYKKEN, Judge
The employee appeals from the compensation judge’s decision allowing discontinuance of temporary total disability benefits effective January 16, 2007. We affirm.
Jim J. Boyd [the employee] is a union boilermaker who resides in Oklahoma. In March of 2006, he traveled to Minnesota for work because no work was available in his home state. In October of 2006, after having worked for two other Minnesota employers, the employee was hired by Jamar Company [the employer], a mechanical contractor. During his employment in Minnesota, the employee lived in motels and short-term apartments. When he started his job with the employer, he was living in a motel in Elk River, Minnesota. He was 73 years old at the time.
On October 28, 2006, the employee fell down a flight of steps while carrying a bucket of tools at the work site. He was wearing a hard hat, but he believes he lost consciousness, at least briefly. An ambulance was called and took the employee to Mercy Hospital.
According to the Mercy Hospital emergency department report, the employee was complaining primarily of left hip and low back pain, but, upon reexamination by the emergency room doctor sometime later, the employee’s hip pain was essentially gone, and his range of hip motion was normal. A CT scan of the employee’s head was also normal, and the examining physician saw no sign of head trauma, but the employee indicated that he was having trouble remembering some details of the accident. Tests did reveal an anterior wedge compression fracture at L1, and the employee was consequently admitted to the hospital. However, physicians eventually concluded that the fracture was “old,” rather than a result of the fall, and the employee was discharged on November 4, 2006, with instructions to follow up with Dr. Gregg Dyste, who had evaluated him during his hospitalization.
The employee saw Dr. Dyste on November 8, 2006. At that time, the employee indicated that he was still experiencing significant pain, and Dr. Dyste diagnosed a left S1 joint strain and advised him to take ibuprofen and to consult an osteopath upon his return home. The employee left for Oklahoma that same day. He later testified that the drive was difficult, that he had to stop frequently to rest or walk around, and that he experienced memory difficulties and disorientation during the trip.
The employee was seen by Dr. James Brixey, D.O., on November 14, 2006. Dr. Brixey prescribed medication and apparently administered adjustments. Subsequently, during a follow-up appointment on November 21, 2006, Dr. Brixey indicated that the employee should remain off work pending evaluation by an orthopedic or spinal surgeon. Dr. Brixey reiterated that recommendation later that month. However, as of November 30, 2006, Dr. Brixey apparently refused to see the employee again, because prescriptions he had written for the employee, for Valium, had been altered to provide for refills. The employee denies having altered the prescription slips.
On December 15, 2006, the employee was evaluated by Dr. Thomas Craven, an orthopedist, on the recommendation of Terri Gorman, who was apparently acting as a disability case manager for the employer’s insurer. The employee testified that Ms. Gorman accompanied him to some of his medical appointments upon his return to Oklahoma.
The report from Dr. Craven’s December 15, 2006, evaluation indicates that the employee was complaining of “low back pain without radiation.” Findings on examination were normal, and Dr. Craven observed that the employee’s MRI and CT scan were unremarkable, showing only age-appropriate degenerative changes. Dr. Craven diagnosed a lumbar strain and recommended physical therapy to address the employee’s ongoing subjective complaints. The employee was kept off work pending reevaluation, to be performed in three weeks. Dr. Craven anticipated that the employee would be at maximum medical improvement [MMI] and capable of a “full release to work” at that time.
The employee had his initial physical therapy evaluation on December 20, 2006. At that time, he was complaining of “constant sharp, shooting, and dull ache pain in the low back and left hip,” “a rash all over the body. I think my nerve endings are irritated,” and “an itching sensation throughout my head and ears mostly at night.” The employee apparently attended a number of physical therapy sessions, as prescribed by Dr. Craven, but the records from that treatment are not in evidence.
The employee saw Dr. Craven again on January 10, 2007. In his report of that date, Dr. Craven wrote as follows:
Mr. Boyd returns after having eight treatments of physical therapy, and he actually states to me today that he has seen some small improvements.
At this point in time, I think it is safe for him to be released to light-duty work. He is still having subjective complaints of back pain. I would like for him to complete his full 12 visits over the next two weeks.
At this point in time, it would be my opinion he could be released to full-duty work. I will release him from my care today. We will see him back in the future if needed. Again I would state he is at maximum medical improvement after he has completed the full physical therapy program over the next two weeks. He will be on light-duty over the next two weeks.
On about January 11, 2007, Greg Olek, safety manger for the employer, contacted the employee to offer him light-duty work in the employer’s tool crib in Duluth, Minnesota. In a follow-up letter of that same date, Mr. Olek reiterated that the employer would accommodate “any and all work restrictions” that the employee might have as a result of his injury, that the job duties would vary based on the employee’s restrictions, and that compensation would “be at [the employee’s] pre-injury wage.” The employee was instructed to contact the employer to accept or decline the offer by January 16, 2007. Attached to the offer was a restriction slip dated January 10, 2007, completed by Dr. Craven, restricting the employee’s lifting to 10 pounds and specifying that the employee should not engage in prolonged sitting or standing. In this restriction slip, Dr. Craven reiterated that he expected the employee to be able to work without restrictions on January 24, 2007, following completion of physical therapy.
The employee subsequently testified that the employer reneged on an offer to fly him to Minnesota to take the light-duty job. However, Mr. Olek testified that the employer had never offered to fly the employee to Minnesota but had only assured the employee that he could have whatever time he needed to make the drive. In any event, it is undisputed that the employee did not accept the employer’s job offer and that he did not look for any other employment, in Oklahoma or elsewhere.
On January 19, 2007, the employee was seen at Elliot Medical Plaza, the clinic of his usual treating physician. The employee spoke to another doctor that day, with treatment notes reading as follows:
Hip pain. HPI: The patient comes in with a very long history of possible hip injury, worker’s comp or not. The patient states he has been on worker’s comp for a back injury but not a hip injury. He has seen physicians in the state that he had the injury, was then referred back to his home physician in Oklahoma which is possibly the Indian Clinic in Claremore. He has seen a physician down in Tahlequah. He has been to a chiropractor in that area, an orthopedic surgeon, Dr. Cravens in Tulsa, as well, and now an ER physician in Claremore again with x-rays of his back and hip. The patient is here and basically wanted me to write a referral for an MRI of his hip, and I did tell him that there has to be an indication to have this done. The patient did not want to bring in any records so that I could review them to see if there was a determination for MRI of the hip, just wanted a referral only, and after a longer discussion he decided that he would go back to his doctor in Claremore to have this done.
* * *
Low back - tenderness in the left paraspinal musculature, soft tissue and sacroiliac area, as well. He has adequate range of motion with internal and external rotation and flexion and extension of his legs at the hip.
1. Possible hip pain versus other etiology.
1. The patient wants a B12 shot today. He is going to refer himself back to his physician in Claremore and he will recheck here with Dr. Fell who is his regular doctor expectantly.
About two months later, on March 14, 2007, the employee was seen by Dr. William Dieker, at Salina Community Clinic, having transferred his care there from Elliot Medical Plaza. Dr. Dieker noted “low back (sacroiliac) pain” and indicated that the employee had made an appointment to see a “hip doctor.” An unspecified radiological scan of the employee’s hip and pelvis taken that same day disclosed osteoarthritis, with no evidence of fracture.
On April 3, 2007, the employee was evaluated by Dr. Scott Dunitz, of Tulsa Bone and Joint, for evaluation of problems with his left hip, including severe pain in the buttocks. Exam revealed pain with forward flexion and extension of the employee’s back, good range of motion, and marked tenderness over the trochanteric bursa on the left. Dr. Dunitz concluded that the employee was suffering from chronic trochanteric bursitis, probably secondary to the employee’s fall at work, and he recommended an MRI of the pelvis and a cortisone injection. He also recommended various restrictions on the employee’s activities.
The employee returned to see Dr. Dieker on April 17, 2007, for a check up and medication refills. The employee’s complaint at that time consisted primarily of left buttock and left leg pain. On an undated prescription slip, Dr. Dieker indicated that the employee should avoid heavy lifting and prolonged sitting and standing due to chronic left lower pelvis and left hip and upper leg pain.
The employee testified that he subsequently saw a physician at an Indian community clinic. According to the employee, that physician filled some prescriptions for him and was arranging for a CT scan of the employee’s back and hip. However, the employee submitted no records from that treatment into evidence.
The matter came on for hearing before the compensation judge on May 17, 2007. At that time, the employer and insurer alleged that the employee’s temporary total disability benefits should be discontinued on grounds that the employee had refused the employer’s January 11, 2007, job offer, that the employee had reached MMI and was capable of working without restrictions as of January 24, 2007, and that the employee had not made a diligent job search. Also at issue was the nature and extent of the employee’s work injury. Evidence included the employee’s medical records and the testimony of the employee and Mr. Olek.
In a decision issued on June 18, 2007, the compensation judge concluded that the employee had sustained a low back strain as a result of his October 28, 2006, fall at work and that he had reached MMI from that injury and had been released to work without restrictions as of January 24, 2007. The judge also concluded that the employee “did not accept” an offer of light-duty work within his restrictions and that the employee had not diligently sought work from January 10, 2007, through the date of the hearing. The employer and insurer were allowed to discontinue temporary total disability benefits effective January 16, 2007, the date by which the employer had instructed the employee to respond to the employer’s job offer. The employee 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).
In her findings, the compensation judge determined that “[t]he employee reached MMI as of January 24, 2007 and was released to return to work without restrictions.” In her memorandum, the judge explained that “Dr. Craven’s opinions are most persuasive that the employee sustained a temporary lumbar strain from which he recovered on January 24, 2007.”
On appeal, the employee contends that Dr. Craven lacked adequate “foundation” and that the judge therefore erred by relying on his opinion. More specifically, the employee argues, in part, that Dr. Craven was unaware that the employee continued to experience symptoms after his completion of physical therapy, because Dr. Craven had refused to see the employee again, and that Dr. Craven had failed to address “the employee’s problems with a potential closed-head injury.” The employee also notes that “[t]he nature of the employee’s injury could easily result in a permanent injury with permanent restrictions.” We are not persuaded that the compensation judge erred in accepting Dr. Craven’s opinion as to the nature and extent of the employee’s injury.
We note initially that the record as a whole easily supports the compensation judge’s implicit decision that the employee did not sustain a closed head injury, at least one with any continuing effects, as a result of his October 28, 2006, fall at work. It is true that the records from the Mercy Hospital emergency department contain reference to a closed head injury, and possible memory problems, on the date of injury. However, records from the employee’s subsequent hospitalization contain no similar notations. Just as importantly, while the employee testified that he had informed all of his other doctors of “short-memory ulcers,” concentration problems, and balance problems, not one of those doctors recorded any such complaints in their treatment notes, and the employee offered no medical opinion evidence to support his contention that he was experiencing mental difficulties as a result of his fall. Under these circumstances, there is no merit to the employee’s contention that Dr. Craven’s opinion lacked foundation based on his failure to consider the employee’s supposed closed head injury.
We are also unpersuaded by the employee’s contention that Dr. Craven’s failure to see the employee on or after January 24, 2007, following the employee’s completion of physical therapy, effectively negates the validity of Dr. Craven’s opinion about the nature and extent of the employee’s injury. We acknowledge that, because he did not see the employee again after January 10, 2007, Dr. Craven was in essence simply predicting that the employee would have fully recovered from his lumbar strain as of January 24, 2007, and, in another case, such a prediction might prove wholly unreliable. However, in this particular case, the judge was entitled to accept the prediction as accurate.
Dr. Craven’s January 10, 2007, treatment notes indicate that Dr. Craven would “see [the employee] back in the future if needed.” The employee did not, however, return to Dr. Craven for further care. The employee testified that Dr. Craven refused to see him again, but there is no evidence of any such refusal in Dr. Craven’s records, and the compensation judge was not required to accept the employee’s unsupported testimony to this effect.
Moreover, the employee’s physical therapy records, other than the record relating to the initial evaluation, were not submitted as evidence, and the employee did not seek additional treatment, after his expected completion of physical therapy, until March 14, 2007, nearly two months later. Furthermore, his subsequent physicians, Drs. Dieker and Dunitz, recommended restrictions for conditions other than the lumbar strain that had been diagnosed by Dr. Craven. And, while the employee testified that he had recently begun receiving treatment for his work injury at an Indian community clinic, no records from that facility were offered as evidence.
Dr. Dunitz, who saw the employee once on April 3, 2007, felt that the employee had developed trochanteric bursitis, probably as a result of his October 28, 2007, fall, and he recommended restrictions related to that condition, but he made no diagnosis of back strain. Dr. Craven, on the other hand, had diagnosed a lumbar strain, without reference to any specific hip injury or condition. The compensation judge was entitled to accept Dr. Craven’s diagnosis of lumbar strain, and, given the nature of the employee’s subsequent treatment recommendations and diagnoses and the employee’s failure to return to Dr. Craven for further treatment of his lumbar strain, the judge was similarly entitled to conclude that the strain was merely temporary and had resolved by January 24, 2007.
An employee whose injury has resolved with no residual disability is not entitled to ongoing temporary total compensation. See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987). The compensation judge’s conclusion that the employee had recovered from his temporary lumbar strain effective January 24, 2007, which we have affirmed on appeal, means that no wage loss benefits related to the October 28, 2006, injury are payable after January 24, 2007. See id. The compensation judge, however, allowed discontinuance effective January 16, 2007, based on the employee’s failure to accept the employer’s light-duty job offer. We have some concerns about the judge’s decision on this issue, in that the employee was at that time still subject to Dr. Craven’s restriction against prolonged sitting. However, the compensation judge also concluded that the employee had not made a reasonably diligent job search after January 10, 2007, the date of his release to light-duty work. Because it is undisputed that the employee made no job search whatsoever after his release to light-duty work, we affirm the compensation judge’s decision that the employer and insurer were entitled to discontinue temporary total disability benefits as of January 16, 2007.
 The employee testified that he had come to Minnesota for work at least twice before.
 However, Mr. Olek later agreed with the employee’s testimony that the offered job would provide only 40 hours of work per week, far less than the employee had been working at the time of injury. As such, the employee would have earned less than his pre-injury wage.
 We would also observe here that foundation is an admissibility issue, see Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983), and the employee cannot now challenge the admissibility of records that he himself submitted into evidence. We take the employee’s arguments more as a challenge to the persuasiveness of Dr. Craven’s opinion.
 In fact, the compensation judge specifically rejected the employee’s testimony on several other points as not credible. Credibility determinations are for the compensation judge. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).
 A compensation judge’s choice between conflicting expert opinions is usually upheld unless the facts underlying the expert’s opinions are not supported by the record. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee points to no facts assumed by Dr. Craven, relative to the nature of the injury, that are not supported by the record, other than those pertaining to the employee’s supposed closed head injury, which we addressed above.
 Dr. Craven also indicated that the employee had 0% permanent partial disability as a result of his injury.
 The employee testified that he did not feel capable of working, but, as the compensation judge pointed out, no doctor found the employee totally disabled after January 10, 2007.
 The record might well have supported discontinuance effective January 10, 2007, but, because the employer and insurer did not appeal from the judge’s discontinuance effective January 16, 2007, we will not modify the judge’s decision.