LEROY C. MOORE-BEY, Employee, v. SELECSTAFF and MINNESOTA ASSIGNED RISK PLAN/RTW, INC., Employer-Insurer/Appellants, and TWIN CITIES ORTHOPEDICS, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 29, 2008
CAUSATION - PRE-EXISTING CONDITION. Substantial evidence supports the compensation judge=s finding that the employee did not have a significant pre-existing low back condition that caused permanent loss of function prior to his March 24, 2006, work-related injury.
EVIDENCE - EXPERT MEDICAL OPINION. Where there was evidence, affirmed by the court, that the employee did not have significant pre-existing low back problems, the treating physicians= lack of knowledge about the employee=s prior low back treatment did not render their opinions without adequate foundation.
JOB OFFER - REFUSAL. Where there was medical evidence that the employee had restrictions and that the job offered by the employer was outside these restrictions, the job offer was not one the employee could do in his physical condition and the receipt of temporary total disability was, accordingly, not barred.
MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIAN. Where the employer denied liability for the employee=s treatment contending the employee=s need for treatment was due to a pre-existing degenerative process and not due to the work injury, Minn. R. 5223.0430 does not apply and the employee had no obligation to seek approval for a change of physician under the rule.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including the opinion of the employee=s treating physician, supports the finding the employee would likely benefit from additional treatment and had not reached maximum medical improvement.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. The evidence was adequate to support the compensation judge=s determination that the employee=s job search, following his termination from employment with the employer, was reasonably diligent under the circumstances in this case.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
Attorneys: Candice Hektner, Peterson & Hektner, Minneapolis, MN, for the Respondent. Joan G. Hallock, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal from the compensation judge=s findings that the employee did not have a significant pre-existing low back condition that caused permanent loss of function prior to the date of injury; the opinions of the employee=s physicians were adequately founded; the employee had work restrictions impairing his ability to find and hold a job and did not unreasonably refuse a job offer; the employee made a reasonably diligent search for employment; the employee did not need prior permission to change treating doctors; and the employee had not yet reached maximum medical improvement. We affirm.
LeRoy C. Moore-Bey, the employee, sustained an injury on March 24, 2006, while working at a SuperValu Store as an order selector where he had been placed by SelecStaff, the employer. The employer and insurer admitted liability for the employee=s personal injury.
The employee had a history of low back problems and treatment prior to his personal injury. In 1994, a car in which the employee was a passenger went off the road and down an embankment. The employee testified that after the accident he was hospitalized overnight for observation. No medical records were introduced regarding any treatment relative to this accident.
The employee was incarcerated at Stillwater Correctional Facility from April 1996 through 2005. On April 11, 1996, Dr. Osekowsky, a psychiatrist, reported the employee took 100 milligrams of Elavil at night to help him sleep because of a back problem. On July 2, 1996, Dr. Erickson, a psychiatrist, noted the employee had significant, chronic back pain which had been treated with a variety of pain medications and muscle relaxants. The employee ascribed his back pain to the 1994 car accident. On July 8, 1996, the employee complained of shooting pains down his back and legs. The Department of Corrections medical records reflect complaints of low back pain on July 10, July 22, July 24, August 12, and September 23, 1996. Dr. Osekowsky reported on October 24, 1996, the employee had a bad back with some weakness in his leg as a result. On June 12, 1997, however, Dr. Osekowsky noted the employee had stopped taking Elavil and was managing well. The employee requested a Alay in@ for back pain on April 28, 1998, which was denied because there was no record in the employee=s chart of chronic back problems. On April 2, 1999, the employee was seen in physical therapy for an evaluation of chronic low back pain. The employee reported his symptoms stemmed from a motor vehicle accident in 1994, with constant low back pain since that time. On May 21, 1999, a physical therapist reported the employee showed no significant change with continued diffuse low back pain. The therapist opined the employee=s symptoms were due to a deconditioned state and chronic soft tissue weakness. The employee was discharged from physical therapy in June 1999 with a diagnosis of chronic musculoskeletal low back pain due to deconditioning. In September 1999, Dr. Green, a psychiatrist, diagnosed the employee with chronic pain disorder, dysthymia, antisocial traits and low back pain. In June 2000, the employee complained of bilateral leg pain. The employee saw Dr. Burkholder on January 7, 2004, complaining of long-standing low back pain resulting from his 1994 car accident. On examination, flexion was limited but straight-leg raising was negative and a neurologic examination and x-rays were normal. The diagnosis was chronic ligamentous low back pain. The employee followed up with Dr. Burkholder on March 29 and June 7, 2004.
After his release from Stillwater in 2005, the employee obtained a job with Midway Party Rentals setting up tents, tables and chairs and setting up dishes for outdoor parties. The employee described this job as very physical, requiring lifting and pulling, and stated he often worked up to 70 hours overtime during a two week period. The employee denied any back problems while working for Midway and stated he missed no time from work and sought no medical care for back problems. The employee testified he left Midway because it was a seasonal job and next obtained a job with the employer. Prior to this employment, the employee testified he took a strength and endurance test, which he passed. The employer placed the employee with SuperValu where he was an order selector. The job required the employee to load food products onto a pallet, both manually and with a forklift. The amount of lifting the employee was required to do depended on the weight of the particular product and the number of items the employee was required to load. The employee testified he had no back problems while performing this job until his March 24, 2006, injury.
Following the work injury, the employee was referred to Now Care by the employer where he saw Dr. Lewandowski. The employee gave a history of slipping on water at work causing him to wrench his low back and hyperextend his left knee. Dr. Lewandowski diagnosed a left knee and lumbosacral sprain, prescribed Naprosyn, provided the employee with crutches, and referred him to physical therapy. The doctor released the employee to return to work with restrictions. Dr. Lewandowski reexamined the employee on April 5 and April 19, 2006, and kept essentially the same restrictions in place.
Dr. William Lohman examined the employee on April 26, 2006, on referral from Dr. Lewandowski. The employee gave a history of his work injury and stated his left knee had improved but his low back continued to bother him. The employee denied any prior back injury. Dr. Lohman diagnosed a left knee contusion and regional low back pain due to a soft tissue injury, and restricted the employee=s lifting, carrying, pushing, and pulling to no more than 20 pounds with no repetitive bending or twisting. On May 10, 2006, Dr. Lohman released the employee to return to full-duty work on a trial basis. Dr. Lohman reexamined the employee on May 24, 2006, at which time the employee reported a significant exacerbation of his back pain but stated he wanted to remain full duty at work. The doctor stated that if the employee continued to work full duty without any treatment, he might develop a severe and intractable problem and referred the employee to a MedX rehabilitation program.
Dr. Lohman referred the employee to Dr. Odom at Active Therapeutics where he was seen on August 4, 2006. The doctor diagnosed a lumbar sprain/strain, released the employee to restricted duty, and ordered physical therapy. Dr. Odom released the employee to full duty on November 27, 2006, but advised the employee to avoid the freezer at SuperValu. The doctor recommended the employee work in the perishables division or Building 101.
Dr. Paul Crowe examined the employee on December 4, 2006. The doctor noted the employee=s past medical history showed no medical problems or hospitalizations. The doctor ordered an MRI scan that was not completed at that time, and restricted the employee to occasional lifting up to 30 pounds.
The MRI scan requested by Dr. Crowe was obtained in July 2007. The scan showed moderate disc degeneration at L5-S1 with mild to moderate right greater than left foraminal stenosis. The employee then returned to see Dr. Crowe who diagnosed advanced disc degeneration at L5-S1 with significant posterior disc herniation. The doctor recommended an L5-S1 fusion. By report dated July 24, 2007, Dr. Crowe opined the March 24, 2006, injury aggravated a pre-existing degenerative condition and was a substantial contributing cause of the employee=s condition and need for surgery. The doctor assigned a 15-pound lifting restriction.
Dr. Thomas Raih examined the employee in March 2007 at the request of the appellants. Following a review of the employee=s medical records and a physical examination, the doctor concluded the March 24, 2006, work injury resulted in a lumbar sprain/strain and a mild sprain/strain and contusion of the left knee. Dr. Raih opined both of these injuries were temporary and had resolved by the date of his examination. The doctor stated the employee would have needed restrictions for approximately three months following his injury but was able to work without restrictions thereafter. Dr. Raih rated no permanent disability and opined the employee had reached maximum medical improvement from the effects of his personal injury. Dr. Raih later reviewed the July 2007 MRI scan which he agreed showed disc degeneration and a contained central disc herniation. The doctor opined, however, the scan reflected a pre-existing degenerative process unrelated to the March 2006 personal injury.
The employee was unable to return to work at SuperValu following his injury because no work was available within his restrictions. On August 27, 2006, the employee returned to light duty work at the Salvation Army. On November 16, 2006, the employer mailed a job offer to the employee for a job as an order selector in the 101 Building at SuperValu, based on Dr. Odom=s release to full-duty work. On November 29, 2006, the employer placed the employee in a job at SuperValu in the perishables department. On December 28, 2006, the employee was transferred from perishables to Building 101 but failed to appear for the job. The employee was then terminated by the employer on December 29, 2006. The employee did not work from December 30, 2006, through February 18, 2007. He testified he looked for work after his termination, but kept no written records of where he sought work during this period. On February 18, 2007, the employee obtained a part-time job at the Salvation Army stocking and driving truck. The employee was terminated from this job in May 2007. He stated he sought work thereafter and, at the hearing, testified he had secured a job.
Deborah Bourgeois, a qualified rehabilitation consultant (QRC), first met with the employee on December 5, 2006. The employee was then working for the employer. The QRC recommended medical management. In January 2007, the QRC met with the employee and Dr. Crowe and stated she would continue to provide medical management services. In a January 10, 2007, report, Miss Bourgeois noted the employee would need assistance in finding new employment. In February 2007, the QRC amended the rehabilitation plan to include vocational counseling, job development, and job placement. The QRC=s final report was February 5, 2007, in which the QRC requested authorization to assist the employee to find new employment with a new employer. Apparently, no further rehabilitation services were provided to the employee. On February 14, 2007, the employee filed a Rehabilitation Request seeking rehabilitation benefits. In its Rehabilitation Response, the employer and insurer denied the employee was eligible for rehabilitation benefits.
The employee filed a claim petition seeking temporary total and temporary partial disability benefits and medical expenses. Following a hearing, the compensation judge found the employee did not have a significant pre-existing low back condition that caused permanent loss of function before March 24, 2006; found the employee=s personal injury resulted in restrictions impairing his ability to find and hold a job; found the employee=s failure to tell his treating physicians of his low back problems and treatment prior to his personal injury was not significant; found the employee made a reasonable and diligent search for employment; found the employee did not need permission to change treating doctors under Minn. R. 5221.0430; and found the employee had not reached maximum medical improvement on April 2, 2007. Based upon these findings, the compensation judge awarded temporary total and temporary partial disability benefits and ordered the employer and insurer to pay medical expenses. The employer and insurer appeal.
1. Pre-existing Condition
The compensation judge found the employee did not have a significant pre-existing low back condition that caused any permanent loss of function prior to his March 24, 2006, personal injury. The evidence is clear, the appellants assert, that the employee suffered from back problems for years before his work injury. The employee was involved in a car accident in 1994 and the Minnesota Department of Corrections medical records refer to multiple physician visits for low back pain. The appellants contend the compensation judge=s conclusion that the employee did not have a significant pre-existing low back condition is clearly erroneous and unsupported by substantial evidence.
There is evidence of record which, if accepted by the compensation judge, would have supported a conclusion that the employee had a significant low back condition prior to his personal injury. On appeal before this court, however, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the compensation judge=s findings. Where evidence conflicts or more than one inference can be drawn from the evidence, the judge=s findings must be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). In this case, there is substantial evidence of record to support the judge=s decision on this issue.
Although the employee was involved in a car accident in 1994, there are no medical records in evidence describing the nature and extent of that injury. While incarcerated at Stillwater, the employee sought medical attention on multiple occasions for low back complaints. Most of these complaints, however, were in 1996 and 1997. The employee testified the prison mattresses were very poor when he arrived resulting in back problems but when the mattresses were upgraded, his back complaints improved. Further, the employee testified that he often called the infirmary in order to get a day off from work. In January 2004, Dr. Burkholder interpreted x-rays of the employee=s lumbar spine as normal. Dr. Stephen Sherman also examined the employee=s low back in January 2004 and noted the vertebral bodies and inner spaces were well maintained and the sacroiliac joints and processes were unremarkable. Further, the Stillwater records document the employee went for many months and sometimes years without any complaints of low back pain although he went to the infirmary for other reasons. Finally, the employee performed physically strenuous work at two different jobs between April 2005 and March 2006 without difficulty and without seeking medical treatment for back pain. Based upon this evidence, the compensation judge could reasonably conclude the employee did not have a significant pre-existing low back condition prior to his personal injury.
2. Foundation For Expert Opinion
The employee apparently did not advise any physician of his history of low back problems prior to the March 24, 2006, personal injury. Dr. Crowe=s December 4, 2006, office note states the employee=s Apast medical history shows no medical problems, no hospitalizations, no medications or allergies.@ (Pet. Ex. H.) Similarly, the records of Dr. Lohman and records from the Now Care Medical Center make no mention of any pre-existing low back problems. The compensation judge concluded the employee=s failure to inform his physicians of his earlier back problems was not significant. The appellants appeal this conclusion and assert the employee=s treating physicians lacked foundation for their opinions because of their lack of knowledge of the employee=s pre-existing low back problems. Accordingly, the appellants contend the compensation judge=s decision must be reversed. We disagree.
An adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkels v. Independent Sch. Dist. #625, 46 W.C.D. 44 (W.C.C.A. 1991). The evidence must support the facts upon which the expert relies for his or her opinions. McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990). However, facts of minor significance which are unknown to the doctor do not necessarily render an opinion without foundation. See e.g., Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).
The compensation judge observed the employee=s prior low back treatment would have been significant had the employee had a history of substantial treatment, permanent restrictions, or permanent loss of function before March 2006. Since this was not the case, the compensation judge concluded the employee=s prior history was not a foundational requisite for the doctors= opinions. The significant issue in this case was the nature and extent of the employee=s personal injury. Dr. Raih agreed the employee sustained a lumbar sprain/strain on March 24, 2006, but concluded the injury was temporary. Dr. Crowe disagreed and concluded the injury was permanent. In his July 24, 2007, report, Dr. Crowe opined the employee=s personal injury aggravated a pre-existing degenerative condition in the employee=s spine. Clearly, Dr. Crowe recognized the employee had a degenerative condition that pre-existed his personal injury. While a prior medical history is often necessary in evaluating the foundation for an expert=s opinion, in this case we cannot conclude its lack was fatal. Given the compensation judge=s conclusions about the nature and extent of the employee=s pre-existing low back problems, the judge could reasonably conclude the treating physicians had adequate foundation for their opinions.
3. Job Offer
Following his injury, the employee returned to work for the employer in a job at the Salvation Army where he worked until November 27, 2006. On November 16, 2006, the employer sent the employee a written job offer for a job in Building 101 at SuperValu. Apparently, this job was to begin on December 28, 2006. The employee did not appear for the job and was then terminated by the employer. The employer and insurer contend the employee refused an offer of gainful employment which bars his claim for temporary total disability benefits under Minn. Stat. ' 176.101 Subd.(1)(I). We disagree.
The compensation judge found the Building 101 job required mandatory 12-hour shifts and repetitive lifting. The employee testified that 12-hour shifts of repetitive lifting aggravated his low back condition. At that time, the employee had been released to return to work without restrictions by Dr. Odom. On December 5, 2006, however, the employee saw Dr. Crowe who limited the employee to working eight hours a day, limited lifting to 30 pounds, and prohibited frequent and repetitive lifting. The compensation judge found the Building 101 job was outside of these restrictions. Substantial evidence of record supports this finding. Accordingly, the Building 101 job offer was not one the employee could do in his physical condition. The receipt of temporary total disability compensation is not, therefore, barred under Minn. Stat. ' 176.101, subd. (1)(I).
4. Change of Treating Physicians
Minnesota Rule 5221.0430 governs a change in health care provider. Subpart 1 of the rule provides that the doctor directing and coordinating medical care to the employee following an injury is the primary healthcare provider. Once the primary healthcare provider is selected, an employee may change primary providers once within the first 60 days after initiation of medical treatment without the need for approval. After the first 60 days, any further change of primary provider must be approved by the insurer, the department or a workers= compensation judge. Minn. R. 5223.0430, subp. 2. If the employee or healthcare provider fails to obtain approval to change provider before commencing treatment, the insurer is not liable for the treatment rendered prior to approval. Minn. R. 5223.0430, subp. 3.
In this case, the employee initially saw Dr. Lewandowski at Now Care who referred him to Dr. Lohman, who, in turn, referred the employee to Dr. Odem. Dr. Odem first saw the employee on August 4, 2006, and directed the employee=s care until November 27, 2006, when Dr. Odem released the employee to return to work at full duty. On December 4, 2006, the employee saw Dr. Crowe. The appellants contend Dr. Odem was the primary healthcare provider and the change to Dr. Crowe was made without approval. The compensation judge found the change of healthcare provider was not unauthorized. The appellants contend this conclusion is contrary to the rule and is legally erroneous. Accordingly, the appellants seek a reversal of the judge=s order that they pay for the treatment provided by Dr. Crowe.
At the outset of the hearing, counsel for the employer and insurer stated that one of their defenses was that the employee=s injury resolved prior to the time he commenced treatment with Dr. Crowe. This defense was based on the opinions of Dr. Raih as set forth in his reports of March 27 and August 6, 2007. This court has held that where an employer or insurer denies primary liability, the employee has no obligation to seek prior authorization for a change of physicians. Mandler v. Adaptive Control Technology, slip op. (W.C.C.A. Sept. 26, 1994). The employer and insurer denied liability for the employee=s treatment with Dr. Crowe contending the employee=s need for ongoing treatment was due to a pre-existing degenerative process and not due to the personal injury. Since the appellants denied primary liability for the claimed medical treatment, the employee had no obligation to seek a change of physician under the rule. The compensation judge=s decision is affirmed.
5. Maximum Medical Improvement
Dr. Odom and Dr. Lohman both released the employee to return to work without restrictions. Dr. Raih diagnosed the employee with a lumbar sprain/strain which he opined had resolved by the date of his examination on March 27, 2007, and concluded the employee had reached maximum medical improvement. The compensation judge found the employee needed further treatment and had not reached MMI in March 2007. The appellants contend this finding is unsupported by substantial evidence. We disagree.
Dr. Crowe opined the employee=s work injury aggravated a pre-existing low back condition. The July 2007 MRI scan showed disc degeneration and a disc herniation at L5-S1 which Dr. Crowe concluded was significant. Dr. Crowe then recommended an L5-S1 fusion. The compensation judge accepted the opinions of Dr. Crowe, concluded the employee was in need of ongoing treatment, and found the employee had not reached maximum medical improvement. This issue involved the resolution of conflicting medical opinion which is the province of the fact finder. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Since the compensation judge=s decision is supported by the adequately founded opinion of Dr. Crowe, the judge=s decision is affirmed.
6. Temporary Total Disability Benefits
The compensation judge awarded temporary total disability benefits between December 29, 2006, and February 17, 2007, and from May 20 to August 14, 2007, the date of the hearing. The appellants contend the award of wage loss benefits was legally erroneous because the employee was terminated from his job with the employer for reasons unrelated to his personal injury. Further, the appellants contend the employee failed to perform a diligent job search during the periods in question. They assert the employee=s testimony regarding his job search is not credible and is not sufficient to support a finding of a reasonable and diligent job search. Accordingly, the appellants contend the award of wage loss benefits must be reversed. We disagree.
In cases involving an employee=s discharge from his job for reasons other than statutory misconduct, the reason for the termination has no bearing on the employee=s eligibility for wage loss benefits. Rather, following a termination or separation from employment, an employee=s benefits may be suspended until the employee demonstrates that the work-related disability is the cause of the wage loss or inability to find new employment. Marsolek v. George A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989).
The employee initially received total disability benefits following his injury and then returned to work with the employer where he worked until he was terminated on December 29, 2006.
Between December 29 and at least February 5, 2007, the employee had a rehabilitation plan that called for medical management. There is no contention the employee failed to cooperate with his QRC. Further, the employee testified that during this time he sought work by reading want ads and calling about jobs he felt he could perform. The award of wage loss benefits from December 2006 to February 18, 2007, is supported by the facts and the law, and is affirmed.
From May 20, 2007, through the date of the hearing, the employee did not have available to him the services of a QRC. While the employee has an independent obligation to search for work, the reasonableness and diligence of the work search is viewed within the scope of the rehabilitation assistance provided by the employer and insurer. Okia v. David Herman Health Care Center, 38 W.C.D. 261 (W.C.C.A. 1985). From and after May 20, 2007, the employee testified he checked want ads, made cold calls looking for work, put his name on a waiting list with a prior employer, and applied for work at ATA Staffing where he worked for two hours. The employee prepared a list of some of the places he called for jobs. (Pet. Ex. P.) Based upon these facts, and considering that the employee had no rehabilitation assistance, the compensation judge found the employee=s job search was reasonable and diligent. We cannot conclude this decision was clearly erroneous. Accordingly, the compensation judge=s decision is affirmed.
 February 5, 2007, is the date of Ms. Bourgeois last rehabilitation report. There is no evidence the employee received any further services from Ms. Bourgeois.