STUART R. FARNSWORTH, Employee/Appellant, v. NORTHWEST AIRLINES CORP. and KEMPER INS. CO./BROADSPIRE, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 22, 2008
REHABILITATION - ELIGIBILITY; REHABILITATION - WORK RESTRICTIONS. Substantial evidence, including the independent medical examiner’s report and opinions, supports the compensation judge’s finding that the employee currently does not have work restrictions and the judge’s denial of the employee’s request for rehabilitation services.
Affirmed.Compensation Judge: Carol A. Eckerson
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstad, Mariana, Fishman & Carp, Minneapolis, MN, for the Appellant. Mary Hager and Katie Kopperud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that the employee failed to prove he is permanently precluded from engaging in his usual and customary occupation by reason of his personal injury and appeals the compensation judge’s denial of his request for rehabilitation services. We affirm.
Stuart R. Farnsworth, the employee, began working for Northwest Airlines Corporation, the employer, in 1967. During his employment, the employee sustained numerous injuries including a whiplash injury in 1967, a right knee injury in 1969, a left knee and shoulder injury in 1971, and a neck injury in 1984. The employee was able to return to work without restrictions following each of these injuries. On December 22, 1986, the employee sustained a personal injury to both elbows. The employer and Kemper Insurance Company/Broadspire admitted liability for these injuries. The employee’s wage on this date was $593.60.
In December 1987, the employee underwent a functional capacity evaluation (FCE). He was given restrictions on sitting, standing, bending, squatting, kneeling, lifting, carrying, repetitive use of the hands, and reaching above shoulder level. These restrictions precluded the employee from returning to his regular job with the employer. The employee was then provided a position in the employer’s flight times office where he worked until he was laid off in June 2005. The employee’s layoff was unrelated to his restrictions.
On August 10, 2005, William Villa, a qualified rehabilitation consultant (QRC), met with the employee for a rehabilitation consultation. Mr. Villa noted the employee was receiving severance pay that would end on August 19, 2005, and had applied for a retirement pension from Northwest Airlines. Mr. Villa further noted the employee had applied for numerous jobs and had recently interviewed for a job as a part-time cook at Camp Snoopy, where he was provisionally hired. Mr. Villa concluded the employee qualified for statutory rehabilitation services. The employee began working at Camp Snoopy in August 2005. He worked two days a week, four to five hours per day, and was paid $8.00 an hour.
The employee saw Dr. Chang-Jiang Zheng, at St. Paul Occupational and Environmental Medicine on September 1, 2005, for a work capacities evaluation. The employee gave Dr. Zheng a history of his prior injuries and stated he was laid off by Northwest Airlines and was working part-time at Camp Snoopy. The employee complained of pain and stiffness and difficulty with heavy lifting. Dr. Zheng diagnosed chronic low back pain and joint pain in the shoulders. The doctor encouraged the employee to communicate with the insurer to determine the type of medical evaluation necessary and noted that an FCE would require a further referral.
By report dated February 8, 2006, Mr. Villa stated a signed rehabilitation plan had been filed with the Minnesota Department of Labor and Industry. The plan was for Mr. Villa to assist the employee in obtaining full-time work, if medically feasible. However, Mr. Villa stated he needed to determine the employee’s current functional capacity and recommended an updated FCE. By report dated May 30, 2006, Mr. Villa noted an FCE had not been obtained and he inquired of the insurer’s representative about the status of the file. Apparently, no rehabilitation assistance was ever provided to the employee.
The employee filed a claim seeking payment of temporary partial disability benefits based upon his job at Camp Snoopy. In a Findings and Order filed November 30, 2006, a compensation judge found the employee was under-employed and his earnings at Camp Snoopy did not reflect his actual earning capacity. Accordingly, the compensation judge denied the employee’s claim for temporary partial disability benefits. On appeal, that decision was affirmed by the Workers’ Compensation Court of Appeals.
The employee’s job at Camp Snoopy was eliminated in April 2007. Thereafter, the employee worked at Pizza Hut for four days, but discontinued the job because he experienced increased spasms in his elbows and arms. The employee did not thereafter return to work, but testified that he looked for work on a regular basis.
Dr. Jeffrey Husband examined the employee in July 2007 at the request of the employer and insurer. The employee then complained of burning and sharp pain in the medial and lateral aspects of both elbows and forearms radiating into his hands with occasional numbness and tingling, and chronic neck pain. Dr. Husband reviewed the employee’s medical records which included a diagnosis of bilateral medial and lateral epicondylitis in April 1987 by Dr. Charles Hipp; an examination by Dr. William Call in October 2007 in which the doctor recommended restrictions; an admission by Dr. Loren Pilling to a pain clinic in November 1987; a 2% permanent partial disability rating by Dr. Call for each elbow in November 1988; a diagnosis by Dr. Christopher Buck of chronic lateral epicondylitis in March 1993; and a February 1996 report by Dr. Elger Lorenzsonn noting ongoing discomfort with medial and lateral tenderness. Following his examination, Dr. Husband noted the employee previously had been diagnosed with medial and lateral epicondylitis, but stated the employee demonstrated no findings on examination to support these diagnoses. Dr. Husband stated provocative tests for epicondylitis were negative, he noted no tenderness over the origins of the tendons and found no evidence of any organic musculoskeletal pathology. The doctor opined the employee required no restrictions for his upper extremities.
The employee returned to see Dr. Zheng on August 23, 2007. The diagnosis was “[m]ultiple work comp claims/injuries.” The doctor stated the employee completed a “functional capacity evaluation in 1987. Continuously worked at Northwest with restriction until 6/15/2005. The work restriction was considered permanent.” In his office note, Dr. Zheng also provided “a Note to Employee” which stated, “[p]hysical restriction apply at work and at home. Please promptly provide a copy of this report to your employer or Work Comp insurer and QRC, if you have one.” (Pet. Ex. B.)
The employee filed a rehabilitation request in July 2007 seeking rehabilitation services. Following a hearing before a compensation judge, at the Office of Administrative Hearings, the judge found the employee failed to establish he was permanently precluded from engaging in his usual or customary occupation because the employee had no restrictions secondary to his work injury. Accordingly, the compensation judge denied the employee’s rehabilitation request. The employee appeals.
Following the 1987 FCE, the employee was given work restrictions. The employee asserts these restrictions remained in effect until he was laid off by the employer in June 2005 and Dr. Zheng then continued the restrictions in August 2007. The employee testified to continuing symptoms in his hands and arms, and stated he was unable to handle the repetitive arm motions required by his job at Pizza Hut. The employee testified he wants to return to work but has been unable to find a job and seeks the assistance of a qualified rehabilitation consultant. The employee argues his testimony, together with the FCE report and report of Dr. Zheng, support an award of rehabilitation services. Further, the employee asserts the compensation judge erroneously adopted Dr. Husband’s opinion that the employee has no restrictions. Accordingly, the appellant asks this court to reverse the compensation judge’s decision.
Minnesota Rule 5220.0100, subp. 22, states:
“Qualified Employee” means an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:
A. is permanently precluded or is likely to be permanently precluded from engaging in the employee’s usual and customary occupation or from engaging in the job the employee held at the time of injury;
B. cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and
C. can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician’s opinion of the employee’s work ability.
The employee focuses on paragraph C. of the rule which refers to the treating physician’s opinion of the employee’s work ability. He argues the compensation judge, in deciding whether rehabilitation services would benefit the employee, may consider only the opinion of the treating physician. Since the compensation judge accepted the opinion of Dr. Husband, the appellant contends the judge’s decision is in error and must be reversed. We disagree.
In determining whether the employee is eligible for rehabilitation services, the compensation judge must first determine whether the employee is or is not likely to be permanently precluded from the employee’s customary occupation or pre-injury job. Implicit in this determination is the issue of whether or not the employee has restrictions. Absent restrictions, an employee is not a qualified employee under the rule. See Guled v. Heartland Foods, slip op. (W.C.C.A. Nov. 30, 1994). In resolving this issue, the compensation judge may consider all of the evidence, including the opinions of an independent medical evaluator. See Wiggin v. Marigold Foods, slip op. (W.C.C.A. July 29, 2004).
Dr. Husband found no evidence the employee had medial or lateral epicondylitis and opined the employee required no restrictions for his arms. The compensation judge found Dr. Husband’s opinions more persuasive than those of Dr. Zheng. It is a compensation judge’s function as a trier of fact to resolve disputes in medical testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge accepted the well-founded opinions of Dr. Husband, found the employee did not have restrictions and denied his request for rehabilitation services. The judge’s decision is supported by substantial evidence and must therefore be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).