AMIN AL-HAMEED, Employee, v. BAILEY CONSTR. and AUTO-OWNERS INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 3, 2009
REHABILITIATION - WORK RESTRICTIONS. Substantial evidence, including the opinion of the employee’s treating surgeon, supports the compensation judge’s finding that the employee has permanent physical restrictions as a result of his work injury.
REHABILITATION - DISCONTINUANCE. Substantial evidence supports the compensation judge’s findings that the employee cooperated with the rehabilitation plan and that, while services have been less than optimal, there is no basis for terminating rehabilitation assistance at the present time.
Determined by: Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Harold W. Schultz
Attorneys: Bernard J. Robichaud, Robichaud & Anderson, Minneapolis, MN, for the Respondent. Laura L. Myslis and Brock P. Alton, Gislason & Hunter, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge’s finding that the employee has restrictions secondary to his personal injury and appeal the compensation judge’s denial of their request to terminate rehabilitation services. We affirm.
Amin Al-Hameed, the employee, sustained a personal injury to his left ring finger on June 25, 2007, while working for Bailey Construction, the employer, then insured by Auto-Owners Insurance Company. The employer and its insurer admitted liability for the employee’s personal injury.
The employee received treatment at the Hudson Hospital emergency room on June 25, 2007. An x-ray showed a laceration and fracture of the terminal tuft of the left fourth finger. On June 26, 2007, Dr. Nicholas Meyer, an orthopedic surgeon, examined the employee. The doctor’s diagnosis was a left ring fingertip near amputation with nail bed laceration and distal phalanx fracture. Dr. Meyer stated he discussed options with the employee including amputating the finger and performing primary closure versus a stem-type salvage by pinning the distal phalanx with irrigation and debridement with repair of the nail bed. The employee elected to proceed with a salvage attempt which the doctor performed on June 26, 2007.
The employee returned to see Dr. Meyer on August 3, 2007. An x-ray showed the broken finger was healing but remained slightly displaced by 1 to 2 millimeters. The doctor’s examination of the finger showed good flexion and extension with formation of a new nail. Dr. Meyer ordered a splint to be worn fulltime by the employee to protect the fracture and kept the employee off work. On September 15, 2007, Dr. Meyer released the employee to return to work subject to restrictions. On October 31, 2007, Dr. Meyer noted the employee continued to make progress but stated he could not return to construction work due to pain and difficulty with grasping and lifting. The doctor stated he again discussed revision amputation with the employee who wished to hold off on any further surgery. In December 2007, Dr. Meyer reduced the employee’s level of restrictions from moderate to mild and stated he planned to remove all restrictions in approximately three months.
Dr. William Call examined the employee at the request of the employer and insurer in February 2008. The doctor obtained a history from the employee, reviewed the relevant medical records, and performed a physical examination. Dr. Call diagnosed a healed left fingertip injury with an excellent prognosis and rated a 1% whole body disability under Minn. R. 5223.0540, subp. 1.N.(4). Dr. Call opined the employee’s only physical restriction was to not lift more than 80 pounds with his left side, but the doctor stated the employee could lift unrestricted with both sides. The doctor stated this restriction should be in place for no more than three months and opined the need for the restriction would decrease quickly as the employee began to use his left hand.
The employee returned to see Dr. Meyer in March 2008. The employee reported he was doing better and stated his pain and strength had improved, but he continued to complain of some gripping difficulty when he had to apply pressure with the fingertip. On examination, Dr. Meyer noted full composite finger flexion and extension, a reduction of grip strength on the left with normal nerve sensation, a deformed nail, and some foreshortening of the distal phalanx. Dr. Meyer recommended a functional capacity evaluation (FCE) to determine the employee’s abilities and stated he would remain on moderate restrictions. On April 16, 2008, Dr. Meyer’s diagnosis remained status post left ring fingertip amputation and replantation. The doctor reported the employee’s request for an FCE had been denied. The doctor placed the employee on permanent restrictions with a 50 pound lifting restriction and instructed him to avoid any repetitive use of the hand or fingertip grasping. Dr. Meyer opined the employee had reached maximum medical improvement and instructed the employee to return on an as needed basis.
The employee returned to see Dr. Meyer on November 19, 2008. The employee stated he continued to have pain with certain lifting activities. On examination, Dr. Meyer found full range of motion of the fingers and full flexion and extension with minimal tenderness of the ring finger to palpation. His diagnosis remained status post left ring fingertip amputation and replantation. Dr. Meyer reported the employee would continue with activities as tolerated and follow-up on an as needed basis. Dr. Meyer advised the employee that his current pain and dysfunction was now likely permanent and would not likely improve. The doctor offered the employee revision amputation which he declined.
In August 2007, the employee met with Leon Olson, a qualified rehabilitation consultant (QRC), and Gail Doverspike, a QRC intern, with Professional Associates of Rehabilitation, Inc. (PAR). The employee was then unemployed and Ms. Doverspike opined the employee would benefit from rehabilitation services. The date-of-injury employer reported they had no work available for the employee. The employee was assigned a placement specialist, Julie Koch, and a full-time job search was initiated.
In May 2008, the employee obtained a job with Interment Diecast through Emerge Staffing where he worked for approximately one month. On September 3, 2008, the employee obtained a job at Highway Technologies where he worked until he was laid off in November 2008. At the time of the hearing, the employee was working at Command Center, a day labor facility. When he obtained a job for the day, the employee testified he was paid between $7.00 and $10.00 an hour. The employee testified he continued to look for employment while working at Command Center.
David Berdahl, a qualified rehabilitation consultant, was retained by the employer and insurer to provide opinions regarding the rehabilitation services provided to the employee by PAR. Mr. Berdahl reviewed the medical records of Dr. Meyer and Dr. Call, the rehabilitation records and reports from PAR, and the employee’s job logs. Mr. Berdahl stated that from September 2007 through September 2008 the employee’s job logs reflected 172 contacts which equated to about 14 contacts a month, most of which were submitted over the internet. Mr. Berdahl testified the employee failed to adequately follow up on job leads. He opined the employee did not conduct a reasonable or diligent job search. Absent a reasonable job search, Mr. Berdahl testified it is not possible to obtain a fair picture of an injured employee’s employability or earning capacity. Further, the employee’s failure to contact potential employers in person diminished the possibility of finding employment. Mr. Berdahl testified that each of the three jobs the employee found he located on his own. He testified that effective job placement services include cold calling potential employers on behalf of the injured worker, setting up interviews for clients with employers, and then following up with the employer on behalf of the client subsequent to all interviews and applications. Mr. Berdahl testified PAR did not perform these functions for the employee. For these reasons, Mr. Berdahl opined the rehabilitation efforts were not successful.
The employee filed a claim petition seeking payment of temporary partial disability benefits. The employer and insurer then filed a Rehabilitation Request seeking to terminate the rehabilitation plan on the basis that the employee had no restrictions and had been suitably employed for more than 30 days. The matters were consolidated for hearing. In a Findings and Order, the compensation judge adopted the physical restrictions imposed by Dr. Meyer and ordered payment of temporary partial disability benefits. The compensation judge found the employee cooperated with rehabilitation services and conducted a minimally adequate job search. The compensation judge denied the employer and insurer’s request to terminate rehabilitation services. The employer and insurer appeal.
1. Physical Restrictions
The compensation judge found the restrictions assigned by Dr. Meyer were more accurate than those assigned by Dr. Call. The employer and insurer contend this finding is unsupported by substantial evidence. They assert Dr. Call performed a number of diagnostic tests, on most of which the employee performed as well with his left hand as with his right and actually had greater grip strength with his left hand. On examination, Dr. Call noted the employee’s finger functioned normally despite some symptoms in his fingertips. Dr. Call concluded the employee needed only temporary restrictions which would decrease quickly as the employee began to use his left hand. Further, the appellants assert Dr. Call’s opinions are more consistent with the employee’s physical abilities. The employer and insurer assert that all of the employee’s jobs since his injury have been as a physical laborer which requires a level of physical exertion. Since the employee has demonstrated an ability to use his left hand, the appellants argue Dr. Meyer’s conclusion that the employee has permanent restrictions should have been rejected in favor of the opinion of Dr. Call.
Approximately six months after his injury, the employee testified he was attempting to move furniture in his home and found he was unable to grasp the items. At that point, the employee realized he would no longer be able to return to the work he did for the employer. When working for Highway Technology, the employee described difficulty lifting 5 and 10 pound cones with his left hand and testified to pain in his left ring finger when lifting and grasping. The employee testified his finger becomes numb and stings when exposed to cold. He stated that grasping with his left ring finger causes needle-like pain into the finger. The compensation judge found the employee was not asymptomatic in his left ring finger and found the employee had difficulty in lifting and grasping and experienced pain, numbing, and stinging in his finger. The employee’s testimony provides evidentiary support for the compensation judge’s conclusion that the employee has restrictions due to a personal injury. See, e.g., Carlson v. Northland Paper Supply, slip op. (W.C.C.A. Jan. 8, 1999).
Dr. Meyer has been the employee’s primary treating physician since the date of his injury. Following surgery, Dr. Meyer examined the employee on multiple occasions at which he time he obtained updated histories from the employee and examined the employee’s hand. The competency of a medical expert to provide an expert opinion depends upon both the extent of the scientific knowledge of the expert and the expert’s practical experience with the matter that is the subject of the expert opinion. Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). There is no dispute as to Dr. Meyer’s scientific expertise or that he has examined the employee on multiple occasions. As a general rule, this level of knowledge is sufficient to afford foundation for the opinion of a medical expert. See, e.g., Caizzo v. McDonald’s, 65 W.C.D. 378 (W.C.C.A. 2005). Since the opinion of Dr. Meyer assigning permanent restrictions is supported by substantial evidence, the compensation judge could reasonably rely upon it. Accordingly, the compensation judge’s adoption of the restrictions of Dr. Meyer is affirmed.
2. Rehabilitation Services
The employer and insurer contend the compensation judge erred in failing to terminate the employee’s rehabilitation plan. They contend the employee did not sufficiently cooperate with the plan, the rehabilitation plan was inadequately administered, the employee is not likely to benefit from further rehabilitation services, and the provider’s charges are excessive. In support of these arguments, the appellants rely on the opinions of Mr. Berdahl that the employee’s job search was not reasonably diligent, that the rehabilitation provider failed to provide sufficient job development and job placement services and did not make cold calls or do any follow up on behalf of the employee. The employee has worked with PAR for over a year, during which time he found three jobs on his own. Based upon the results obtained, the appellants contend the $25,000.00 they have paid to PAR, Inc., was excessive. For these reasons, the appellants assert the employee’s rehabilitation services should have been terminated.
Minn. Stat. § 176.102, subd. 8, provides, in part:
Plan modification. Upon request to the commissioner or compensation judge by the employer, the insurer, or employee, or upon the commissioner’s own request, the plan may be suspended, terminated, or altered upon a showing of good cause, including:
(a) a physical impairment that does not allow the employee to pursue the rehabilitation plan;(b) the employee’s performance level indicates the plan will not be successfully completed;(c) an employee does not cooperate with a plan;(d) that the plan or its administration is substantially inadequate to achieve the rehabilitation plan objectives;(e) that the employee is not likely to benefit from further rehabilitation services.
The compensation judge found the employee cooperated with the rehabilitation services provided by PAR and conducted a minimal job search effort. The appellants contend this finding is unsupported by substantial evidence and must be reversed. We are not persuaded.
Mr. Berdahl opined the employee failed to perform a reasonably diligent job search. He acknowledged, however, the employee followed up on 30 to 35 percent of the job leads provided him by PAR, a response which Mr. Berdahl characterized as minimal not insufficient. Mr. Olson disagreed the job search was inadequate and testified the fact that the employee was able to find three jobs within six months in a difficult economy, was evidence of the reasonableness of his job search. Ms. Doverspike testified the employee followed up on most of the job leads provided by PAR and when he didn’t, he supplemented the list by finding his own leads. Ms. Doverspike testified the employee was very motivated to find work. It is the function of the compensation judge to resolve conflicts in expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The testimony of Mr. Olson and Ms. Doverspike provide substantial evidence and support for the compensation judge’s finding that the employee cooperated with the rehabilitation plan. The compensation judge’s finding is, therefore, affirmed.
The employer and insurer also contend that PAR’s administration of the rehabilitation plan was inadequate to achieve the plan objectives and assert the rehabilitation plan should be terminated. The compensation judge denied the request and stated:
There is a closer issue in respect to the defense request to terminate rehabilitation services. A significant amount of money has been paid to PAR with marginal results. The obligation to pay for rehabilitation services may have to be revisited in a short time period. For the amount of money that has been spent, the employee should be close to be permanently returning to the labor market.
The employee testified that through the efforts of PAR he learned computer skills such as cutting and pasting information, addressing emails, sending emails, and attaching emails which he utilized in his job search. He stated he learned how to search for jobs using the internet through computer training provided by PAR. The employee testified that through the rehabilitation process he was taught interviewing skills and learned the ability to communicate with a potential employer. The employee testified his QRC and placement specialist advised him to apply at staffing companies and to take jobs if they were offered. The appellants sought to terminate rehabilitation services, not to amend the plan or change the QRC. Mr. Berdahl agreed the employee was a qualified employee to receive rehabilitation services. He testified not that rehabilitation services should be terminated but that a change in the rehabilitation focus was necessary. We agree with the compensation judge that the results of the rehabilitation services have been less than optimal. We also agree with the judge, however, that the appellants have not established that rehabilitation services should be terminated at this time. The compensation judge’s decision denying the request to terminate rehabilitation services is affirmed.