JOHN H. KUESTER, Employee, v. MR PAVING & EXCAVATING, INC., and STATE FUND MUT. INS., Employer-Insurer/Appellants, and ALLINA MED. CLINIC, CONSULTING RADIOLOGISTS, and MINNESOTA DEP’T OF EMPLOYMENT & ECON. DEV., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 20, 2009
JOB SEARCH; TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Where the employee had a reasonable expectation of a return to his seasonal job with the employer, and where the judge reasonably concluded that the employee was physically restricted by his work injury during a brief lapse in his formal medical restrictions, the compensation judge’s award of temporary total disability benefits, based on a conclusion that the employee’s claim did not fail for lack of a sufficient job search or for the absence of formal restrictions, was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Johnson, C. J., and Wilson, J.
Compensation Judge: Harold W. Schultz II
Attorneys: David B. Kempston, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Respondent. John M. Hollick, Lynn, Scharfenberg & Assocs., Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge’s award of temporary total disability benefits. We affirm.
In the mid 1960s, John Kuester dropped out of high school prior to graduating in order to help his parents on their family farm, since which time he has obtained a graduate equivalent diploma. In about 1970, Mr. Kuester [the employee] began working for about five years as a construction worker, and then from 1976 to 1990 he ran his own farm, taking also a job near the end of that period, in 1989, back in the construction field again, with Wallner Construction, the predecessor company of MR Paving & Excavating, Inc. [the employer]. The employee’s work for Wallner and the employer consisted of street repair, road work, excavating, sewer work, and work at a bituminous plant. Occasionally the employee would put in a fourteen-hour day, about seventy percent of it spent operating a front end loader and about thirty percent of it spent welding at the bituminous plant, with a few additional miscellaneous duties. Work on a front end loader required the employee to climb a five- or six-foot ladder to get on and off, which he would need to do thirty to forty times a day. Until about 2004, the employee’s loader work was in operation of a 1972 model front end loader, with no power steering. The steering wheel had a knob onto which he could hold, but he would nevertheless have to crank hard on the knob or the wheel in order to steer the vehicle. The vehicle’s control levers were on the right, and when, in the course of his welding duties, the employee, who is right handed, would reach away from his body, he would feel a strain in his right shoulder area. The employee’s work with Wallner Construction and the employer was seasonal employment from 1989 through 2006, normally beginning in March or April and ending in November, with the employee receiving unemployment compensation during the winter months.
On December 1, 2005, the employee sought treatment with his family physician, Dr. Craig Sievert at the New Ulm Medical Center, complaining of “pain in his shoulder and into his arm.” Dr. Sievert noted on that date that “There is certain machinery that [the employee] used to drive that require[d] a lot of wrestling with the controls to drive. He has less strength in his shoulders now. It is difficult to reach over the level of the shoulders.” There is no record of any injury or treatment to either of the employee’s shoulders prior to this date, except for one incident of an emergency room examination for right shoulder pain apparently related to chest muscle strain in June of 1995, from which the employee apparently quickly recovered. Dr. Sievert diagnosed “joint pain shoulder region,” prescribed regular use of ibuprofen, and recommended the use of ice after work. In follow-up with Dr. Sievert on February 17, 2006, the employee reported that his shoulders had been bothering him “for about 1 or 2 years.” Dr. Sievert noted that the employee
does remember it coming on around the time that he was using certain equipment which required a lot of hand/arm use of gears and levers that required a certain amount of force. He has some numbness and tingling into his hands. At times they fall asleep. This is both hands, but more his right.
Dr. Sievert diagnosed carpal tunnel syndrome and prescribed a wrist splint.
On about April 1, 2006, the employee returned to his seasonal employment with the employer, his duties being slightly changed to include more welding and fabricating duties, in that the employer was in the process of building a new bituminous plant. On May 5, 2006, in the course of his work for the employer, the employee sustained a personal injury in the process of helping to lift a two-hundred-pound piece of metal. The material slipped and jarred both of his shoulders, causing pain in the right one, and he reported the incident to the employer. The employee was fifty-eight years old on that date and was earning an average weekly wage of $819.89.
The employee evidently worked to the end of the 2006 season before seeking any medical treatment for his injury. On December 5, 2006, he returned to see Dr. Sievert, who reported that the employee was complaining that his “[s]houlders still hurt. His shoulder will ache at night. He has struggled with this for some[ ]time and [it] seems to [be] getting worse. He has worked with heavy equipment for many years . . . with some machine[s] [that] require a lot of arm movement.” Dr. Sievert did not issue any physical restrictions on that date, but he ordered an MRI scan of the employee’s right upper extremity, noting that “[h]e has some evidence of possible rotator cuff tear.” The scan was conducted on December 6, 2006, and was read to reveal (1) rotator cuff tendinopathy and a subscapularis partial tear, with no full-thickness rotator cuff tears, (2) glenohumeral arthropathy with degenerative labral changes and an apparent tear of the anterior inferior glenoid labrum, and (3) Type 2 acromion morphology with acromioclavicular arthropathy leading to mild osseous encroachment on the supraspinatus outlet.
On December 15, 2006, the employee saw orthopedic surgeon Dr. Mario DeSouza, on referral from Dr. Sievert, for evaluation of his right shoulder. The employee gave a history of pain for the past two years while operating heavy equipment, which had increased with the incident on May 5, 2006. He reported that the pain had gradually worsened since that date and that it now ran from the top of his shoulder down his arm and sometimes all the way to his hand. He reported that his symptoms, which also included occasional numbness in both arms, normally occurred with use, particularly at work, but sometimes even at night. Dr. DeSouza diagnosed right shoulder rotator cuff tear and bilateral hand numbness, prescribed medication, issued restrictions through January 31, 2007, and discussed with the employee various treatment options, including surgery, indicating that he would get back to the employee after receiving information pursuant to a workers’ compensation review.
On January 3, 2007, the insurer filed a First Report of Injury, indicating that the employer had received notice of a work-related May 5, 2006, partial tear of the employee’s right rotator cuff on December 14, 2006. The report indicated that the injury occurred when the “[c]ompany was in the process of setting up a new asphalt plant. There was a lot of lifting of metal. Ag[gra]vated shoulder while lifting feed conveyor.” On that same date, January 3, 2007, the insurer also filed a Notice of Insurer’s Primary Liability Determination, admitting an “incident only occurring on 5/5/06 to employee’s shoulder” but indicating that wage loss benefits would not be paid, because the employee did not seek medical treatment at the time of his injury or at any time during the work season, continuing instead to perform his usual job with the employer.
On February 2, 2007, the employee saw Dr. DeSouza again, complaining of worsening right shoulder discomfort and also of left shoulder pain. Dr. DeSouza diagnosed “[r]ight shoulder tendinitis” and prescribed medication. In a narrative report to the employee’s attorney dated February 18, 2007, Dr. DeSouza indicated that he suspected that the event of May 5, 2006, was a “significant contributing factor” in the employee’s partial right rotator cuff tear, and he explained his recommendation of surgical repair of that tear. About a month later, on March 12, 2007, the employee called and talked with an assistant in Dr. DeSouza’s office, requesting an updated letter of restrictions, since the “[l]ast one ran out 1/31/07 and [he] did not get one when he saw [Dr. DeSouza] 2/2/07.” The employee offered to “come see [Dr. DeSouza] if needed again or [the restrictions] can be faxed to [his attorney].” On March 12, 2007, Dr. DeSouza wrote a letter “To Whom it May Concern,” stating,
Until further notice, [the employee] is unable to use his right arm for forceful pushing, pulling or lifting. He may briefly use his arm for reaching or overhead use but is unable to maintain those positions for extended use. It would be preferable to use the right arm only for light use at chest level or lower.
The employee was unable to return to work with the employer in the spring of 2007 due to these restrictions on his activities.
On March 20 and 26, 2007, the employee filed and amended a medical request, alleging entitlement to payment of $2,889.00 in medical bills related to an injury to his “right shoulder with compensable consequential left shoulder,” together with prescribed arthroscopic and then “mini-open” surgical repair of his right shoulder. On April 12, 2007, the employee saw Dr. Sievert again, who noted that the employee had “[t]enderness in his shoulders bilaterally” and was “unable to lift his arms over the level of the shoulder,” noting that the employee was “following with orthopedics.”
On May 18, 2007, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Paul Yellin. After reviewing an introductory letter from the employer and insurer’s attorney, together with relevant medical records, Dr. Yellin diagnosed right shoulder impingement syndrome, together with a partial tear of the right shoulder rotator cuff tendon and subscapularis with a labral tear, concluding that the employee had developed a “frozen shoulder syndrome.” The doctor issued restrictions related to the injury and concluded that the employee was subject to a permanent partial disability with regard to it and would benefit from surgery and perhaps from steroid injections. The doctor concluded further that it was too early to determine the extent of the employee’s permanent disability, in that the employee was not yet at maximum medical improvement. With regard to the employee’s left shoulder, Dr. Yellin found “no specific pathology,” indicating that he found “nothing abnormal about the left shoulder at this time.”
On May 30, 2007, the employee was evaluated by Dr. DeSouza for complaints of left shoulder pain in addition to his right shoulder pain. Dr. DeSouza diagnosed “[b]ilateral shoulder pains with partial tear of the supraspinatus insertion on the right,” issued restrictions through June 30, 2007, and recommended that the employee have an MRI scan of his left shoulder. The MRI was conducted on June 8, 2007, when a history was reported of “[o]ne year of left shoulder pain” with “[n]o known injury.” The scan was read to reveal (1) a “12x8 small mm partial articular surface tear of the distal infraspinatus tendon anteriorly, involving 50 percent of the tendon thickness,” with “[n]o full thickness rotator cuff tears [visible],” (2) “[m]ild glenohumeral arthropathy with degenerative labral changes,” and (3) “Type I acromial morphology with mild lateral downsloping of the acromial clavicular arthropathy, leading to a slight osseous encroachment of the supraspinatus outlet.”
On June 11, 2007, the employee filed a claim petition based on a work injury to both of his shoulders on May 5, 2006. The petition alleged entitlement to compensation for temporary total disability from November 16, 2006, to May 28, 2007, together with payment of outstanding medical bills related to the left shoulder condition, ongoing rehabilitation assistance, retraining, and hourly attorney fees pursuant to the Roraff and Irwin decisions.
On June 21, 2007, the employee and his QRC met with Dr. DeSouza, with whom they discussed the problems in both of the employee’s shoulders, his MRI, and his treatment plan. The employee remained off work, and on July 11, 2007, the parties submitted a stipulation for settlement of various claims based on the employee’s right shoulder injury. Five days later, on July 16, 2007, Dr. DeSouza performed a surgical “[r]epair [of a] partial tear [of the] right rotator cuff with acromioplasty and excision of the distal clavicle,” and the following day, on July 17, 2007, an award was issued on the parties’ stipulation for settlement. On that same date, July 17, 2007, Dr. DeSouza issued work restrictions through July 30, 2007. On July 27, 2007, the employee’s restrictions were extended through August 27, 2007. On July 31, 2007, the employee’s award on stipulation was amended to provide that, contrary to language in the July 17, 2007, award on stipulation, the employee’s medical request, his amended medical request, and his claim petition were not dismissed, because the parties’ July 11, 2007, stipulation for settlement addressed only part of the employee’s claims. On August 28, 2007, the employee’s restrictions were again extended, through October 9, 2007.
On September 4, 2007, the employee commenced physical therapy related to his right rotator cuff repair, and he continued in that therapy for about twenty-one sessions, through November 8, 2007, during which time, and after, he remained restricted from working. On November 27, 2007, Dr. DeSouza released him to return to work with restrictions through January 8, 2008, under a diagnosis of a partial tear of both rotator cuffs. Dr. DeSouza did not order surgery on the left shoulder at that time, understanding that the employee would be having a workers’ compensation hearing in January to address the issue and recommending that the employee wait for a decision on that issue before undertaking surgery. On January 8, 2008, the employee returned to see Dr. DeSouza again, who extended his restrictions through February 19, 2008. Dr. DeSouza’s notes indicate that the employee was at that time “somewhat confused about his job situation as he is supposed to be looking for work although he was assured by his employer that he is expected to come back.” Dr. DeSouza indicated that, “[f]rom my discussion with him it is apparent that he would be able to do his regular job were he not on layoff.” The employee saw Dr. DeSouza a couple of times more in late January and February of 2008, and on February 19, 2008, because of ongoing symptoms in the employee’s right shoulder, Dr. DeSouza extended the employee’s restrictions through March 31, 2008, and recommended another MRI scan, to see if the right rotator cuff tear had properly healed.
The recommended scan was conducted on March 3, 2008, and reported findings were mixed. On that same date, the employee called Dr. DeSouza indicating that he was trying to find a job but was not having much luck, and the doctor suggested that he be seen by a shoulder specialist. When he saw Dr. DeSouza again on March 11, 2008, the employee complained of sharp continuing pain in his right shoulder and continuing more modest pain in his left. The doctor noted that the employee “states a job became available at Kraft stacking 30-pound boxes and he thinks he would like to try this.” The doctor issued work restrictions through April 30, 2008, under a diagnosis of partial thickness rotator cuff tear of the right shoulder, and, in an undated response on a March 21, 2008, letter from the employee’s QRC, indicated that the employee could try the job at Kraft.
On March 13, 2008, the employee was examined for the employer and insurer a second time by Dr. Yellin, who, after reviewing medical records including the employee’s recent March 3, 2008, MRI, indicated that “it continues to be my opinion that [the employee] did not sustain an injury to his left shoulder at [the employer]. I believe the problems in his left shoulder relate to a developmental anomaly with the prominence over the acromioclavicular joint area.” He concluded that the proposed surgery on the left shoulder was reasonable and necessary, based on the employee’s recent MRI findings, but that the acromioclavicular pathology in that shoulder was “a long standing problem predating [the employee’s] alleged injuries,” unrelated to any work activities. He concluded also that “a second look arthroscopic procedure in [the employee’s] right shoulder would be considered appropriate based on his most recent MRI and his continued subjective complaints.”
In a narrative report dated April 5, 2008, Dr. DeSouza summarized the employee’s treatment and the results of his recent MRI scan, issued restrictions, and stated as follows with regard to causation of the employee’s bilateral shoulder condition:
At this time given his history it is most likely that [the employee’s] work incident of 05/05/2006 contributed substantially to the problem he is having with his right shoulder but based on the history he gave us I do not believe that it is a contributing factor to his left shoulder. I do believe that the symptoms he has on both shoulders are attributable to the work he does, particularly with operating machinery and repetitive use of the arms. He has described forceful use of the arms with regard to steering and lifting which over the years can certainly contribute to degeneration and tearing of the rotator cuff tendons . . . . With regard to his left shoulder I believe he may at some point benefit from surgery to repair the rotator cuff but since this is the lesser of his pains at this time we have decided to hold off treatment of the left side until his right side has improved.
The matter came on for hearing on April 10, 2008, as of which date the employee had not yet returned to the labor market and was currently being paid temporary total disability compensation related to his right shoulder injury. Issues at hearing included whether the employee had sustained a work-related injury to his left shoulder culminating on about May 5, 2006, and, if so, whether he was entitled to temporary total disability benefits from November 16, 2006, through May 28, 2007, and to payment of certain out-of-pocket expenses. Also at issue was whether intervenor Minnesota Department of Employment & Economic Development was entitled to reimbursement in the amount of $6,669.00 for unemployment compensation paid to the employee for the week beginning January 7, 2007, and continuing through May 20, 2007. By findings and order filed June 18, 2008, the compensation judge concluded that the employee did sustain a work-related injury to his left shoulder culminating on May 5, 2006, and there is no appeal from that conclusion. The judge denied, however, the employee’s claim for wage replacement from November 16, 2006, through December 14, 2006, nor is there any appeal from that conclusion. The judge granted, however, the employee’s claim for wage replacement from December 15, 2006, through May 28, 2007, together with payment of the medical expenses at issue, reimbursement of the employee’s out-of-pocket expenses at issue, and reimbursement to the intervenors as claimed. The employer and insurer appeal from the judge’s award of temporary total disability benefits.
STANDARD OF REVIEW
In reviewing cases 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. 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, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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.” Id.
The compensation judge found in part that the employee was temporarily totally disabled from December 15, 2006, through May 28, 2007, and he ordered the employer and insurer to pay compensation for that disability. In his memorandum, the judge expressly acknowledged that he was awarding the benefits
even though [the employee] did not conduct any job search effort from mid-December 2006 to May 2007. . . . He anticipated a return to work at [the employer] as had been the routine for many years. Dr. DeSouza assessed restrictions on December 15, 2006 to be in effect until January 31, 2007. He next saw the employee on February 2, 2007 and the complaint of worsening symptoms was noted. Treatment continued. Certainly it is reasonable to interpret the lack of restrictions in February and early March as not as a recovery of his condition but simply an oversight to completely address his work status. Restrictions were formally put back in place on March 12, 2007. In May 2007, Dr. Yellin agreed with the need for restrictions.
The employer and insurer contend that the judge’s conclusion is contrary to law and unsupported by substantial evidence, on grounds of both inadequate job search and, for a time, the absence of restrictions.
1. Job Search
With regard to the lack of any job search by the employee, the compensation judge cited in his memorandum this court’s decision in Lohrke v. First Student slip op. (W.C.C.A. Jan. 31, 2008). In that decision, we affirmed a compensation judge’s conclusion that the employee did not have an expectation of returning to work with the employer that was sufficiently reasonable to excuse him from his obligation to search for work. The employer and insurer contend that “the facts of Lohrke and our case are remarkably similar.” Employing the language of Lohrke, they argue that this court there “determined that for an employee to have a reasonable expectation of a return to work with the date of injury employer, there must be some action on the part of the employee, which demonstrates the alleged belief of a continuing employment relationship.” They argue that the employee in the present case made no effort to contact the employer regarding a return to work until he contacted the safety director in March or April of 2007 and that, even though he was under restrictions beginning in December of 2006, he made no attempt to refer his restriction slips to his employer. They argue further that, although the employee knew that, given his restrictions, he would be unable to return to work at his regular position, he offered the employer no opportunity in December of 2006 to meet his light duty restrictions, opting instead to simply collect his unemployment compensation. Moreover, they argue, the employee’s collecting of the latter is by itself an indication that the employee had no ongoing employment relationship with the employer. We are not persuaded.
We would note at the outset that this court’s decision in Lohrke was an affirmance of a judge’s factual finding, whereas the employer and insurer’s request of this court in the present case is to reverse on a factual finding. See Hengemuhle, 358 N.W.2d at 60, 37 W.C.D. at 240 (“the court of appeals is not to substitute its view of the evidence for that adopted by the compensation judge if the compensation judge’s findings are supported by evidence that a reasonable mind might accept as adequate”). Further distinguishing the Lohrke case from the present case, we would note that the employee’s inaction in Lohrke was for about twelve months, from September 1 of one year to August 29 of the next, whereas the alleged inaction of the employee in the present case was only about a third that duration, from November of 2006 to March or April of 2007 - - the duration of the inaction being a relevant factor under our case law. Cf. Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995); Wingen v. State, Dep’t of Transp., slip op. (W.C.C.A. Apr. 22, 2008); Chilton v. Brown Minneapolis Tank, slip op. (W.C.C.A. July 8, 1996); Carreon v. Armour Swift Eckrich, Inc., slip op. (W.C.C.A. Mar. 23, 2000). Nor would it have been unreasonable for the compensation judge to find it reasonable for the employee to delay contacting the employer with his restrictions until the beginning of the season of his normal employment. This is another factor distinguishing the present case from the facts in Lohrke, in which the employee did not check in with the employer even during the season in which he normally worked, as well as from other cases where the job search delay at issue may perhaps have been shorter than it was in this case. Nor do the employer and insurer explain or offer any evidentiary support for their argument that the employee’s collecting of unemployment compensation during the normal period of his layoff was by itself an indication that the employee had no ongoing employment relationship with the employer. Because it was not unreasonable, we affirm the compensation judge’s conclusion that the employee had a reasonable expectation of continuing employment with the employer once the normal season of his employment returned. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
The employer and insurer contend that, contrary to the compensation judge’s conclusion that the lapse in formal written restrictions during the period was merely due to “oversight,” “the record is clear that the employee did not have any restrictions from February 2, 2007 to March 12, 2007.” They argue that Dr. DeSouza had clear opportunity to address the restrictions issue in his letter to the employee’s attorney on February 18, 2007, but simply did not do so. They argue that the judge’s conclusion that the lapse was simply an oversight “is not supported by the evidence.” They note that the judge did not award any temporary total disability benefits for the period November 16, 2006, to December 16, 2006, “presumably based upon the fact that there were no physical restrictions provided by any treating doctor,” arguing, “[t]o then jump to the conclusion and award temporary total disability benefits later on and assume the employee was under physical restrictions is inconsistent and unsupported by the evidence.” We are not persuaded.
During the period that the employer and insurer cite by analogy, November 16 through December 16, 2006, the employee sought no treatment for his condition and was not under any doctor’s care. There is clear medical record that his shoulder symptoms were “getting worse” by the December 5, 2006, date of his first treatment by Dr. Sievert, who on that date ordered an MRI scan to assess the apparent possibility of a torn rotator cuff. When the scan revealed rotator cuff pathology, Dr. DeSouza, on December 15, 2006, issued formal physical restrictions. At the time of Dr. DeSouza’s February 18, 2007, letter to the employee’s attorney, the employee had already been subject to the doctor’s express restrictions for a month and a half, from December 15, 2006, through January 31, 2007, and Dr. DeSouza had expressly noted on February 2, 2007, that the employee’s complaints were of worsening pain, in both shoulders. Moreover, in his narrative report on February 18, 2007, the doctor expressly identified the work event of May 5, 2006, as a “significant contributing factor” in the employee’s condition, and he went on to explain in some detail his recommendation of surgery. We conclude that it was not at all unreasonable for the compensation judge to infer that a recommendation of surgery in light of MRI findings and increasing pain carried with it a presumption that the employee was at least still disabled and partially restricted by his injury. Moreover, the issue of whether an employee is restricted by a work injury is a matter of fact for determination by the factfinder and not one absolutely requiring the support of formal restrictions by a medical expert. See Hendrickson v. Parsons Elec. Co., No. WC07-134 (W.C.C.A. Oct. 11, 2007) (the question whether an employee can work without restrictions for the purposes of Minn. Stat. § 176.101, subd. 1(h), is an issue of fact to be determined by a compensation judge and is not one that is entrusted solely to the decision of a physician). We conclude that it was not unreasonable for the judge in this case to conclude that the employee in this case was restricted by his work injury from February 2, 2007, to March 12, 2007, and therefore we affirm that conclusion. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
Because it was not unreasonable for the judge to conclude that the employee’s claim in this case did not fail for lack of a sufficient job search or for the absence of formal restrictions, we affirm the compensation judge’s decision in its entirety. Id.
 See Roraff v. State, Dep’t of Transp., 288 N.W.2d 15, 32 W.C.D. 297 (Minn. 1980); Irwin v. Surdyk’s Liquor, 599 N.W.2d 132, 59 W.C.D. 319 (Minn. 1999).