GREG BROWNELL, Employee/Appellant, v. HIBBING TACONITE MINING CO., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., INC., Employer, and SHARON NAUMANN, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
APRIL 8, 2010
REHABILITATION - CONSULTATION. Where the record reasonably supported the compensation judge’s conclusion that the employee failed to establish that he is subject to restrictions as a result of his work injuries, the judge’s denial of a rehabilitation consultation was not clearly erroneous or unsupported by substantial evidence.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Thomas R. Longfellow, St. Paul Park, MN, for the Appellant. Kenneth A. Kimber, Hanft Fride, Duluth, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision denying the employee’s request for a rehabilitation consultation. We affirm.
The employee sustained an admitted low back injury on May 14, 2002, while working for Hibbing Taconite Mining Company [the employer]. He was subsequently seen by Dr. Win Cho Hlaing on May 22, 2002, complaining of increasing stiffness in his low back. X-rays taken on that date revealed moderate degenerative changes in the posterior facet joints of the mid to low lumbar spine, and Dr. Hlaing diagnosed low back pain and muscle spasm, prescribed Flexeril, and restricted the employee from heavy lifting for one week. However, the doctor approved the employee’s request to return to work, and the employee never missed any time from work due to this injury.
On November 11, 2002, Dr. Hlaing completed a Health Care Provider Report, opining that maximum medical improvement [MMI] had been reached as of May 30, 2002, with no permanent partial disability.
The employee apparently went without further treatment for low back symptoms until April 11, 2007, when he was seen by Anne Flaim, a certified nurse practitioner. The employee gave a history of bouncing in his truck at work on April 3, 2007, and reported symptoms of tenderness in the spine and lower extremity and numbness in the right and left interior thighs. Ms. Flaim ordered x-rays, which revealed mild degenerative disc disease and degenerative joint disease in the lumbar spine. She prescribed an anti-inflammatory and told the employee to avoid activities that caused symptoms. The self-insured employer admitted liability for the April 3, 2007, injury. The employee never missed any time from work due to this injury.
When seen by Ms. Flaim again on June 1, 2007, the employee continued to complain of tingling and numbness, and Ms. Flaim ordered an MRI. That scan, performed on August 29, 2007, revealed degenerative joint disease at multiple levels, with disc protrusions at L3-4 posteriorly and laterally on the right and a small paramedian disc protrusion at L5-S1 on the right. Physical therapy was prescribed in October of 2007, but the employee never followed up.
The employee returned to Ms. Flaim on April 1, 2008. According to her office note, the employee was still having discomfort but was not receiving current treatment and was functioning well. She noted, “in terms of what we’re doing for him and level of possible improvement he’s at MMI.”
On August 11, 2008, the employee was seen again by Ms. Flaim, who noted tightness to the right of L5-S1 and indicated, “[n]otably he sits in a truck on a job (presumably heavy equipment) where he is sitting and bouncing throughout his shift, which is likely aggravating this area.” Ms. Flaim diagnosed a lumbosacral strain and referred the employee to physical therapy. The employee did not attend physical therapy.
Also in August of 2008, the employee spoke with John Burgess, workers’ compensation coordinator for the employer, about his ongoing low back problems. Mr. Burgess recommended that the employee be seen by Dr. Brian Konowalchuk, an occupational medicine specialist.
Not long thereafter, on September 4, 2008, the employee was seen by Dr. Konowalchuk, who noted that the employee was using his personal insurance and stated,
The workers comp question is somewhat complex . . . . Certainly it could be argued that this has been at least an aggravation of a chronic low back condition if not an aggravation of the original injury . . . . Evidence for actual causation . . . is somewhat difficult to prove. However, I believe that some treatment is certainly at least reasonable due to exacerbation of his symptoms by frequent pounding on rough dirt roads in his truck at work.
Dr. Konowalchuk prescribed a prednisone burst.
On September 25, 2008, Dr. Konowalchuk noted that the employee’s numbness had returned after he discontinued prednisone. The employee also complained of some back discomfort and inquired whether there was anything definitive that could be done to help his back pain. The doctor stated,
There is some question as to the work related nature of this case. I told the employee that it is somewhat difficult for me to sort this out . . . but it may be reasonable to place him on workers compensation if what appears to be a L3-4 disc herniation was previously accepted as a work injury.
The doctor noted that the employee was “tolerating work well.” He ordered an MRI and completed a report of work ability listing an injury date of April 3, 2007. No restrictions were recommended.
On October 15, 2008, the employee was seen again by Ms. Flaim. On exam, his low back was tight and uncomfortable, and the range of motion was decreased. Ms. Flaim noted that his pain interfered with his quality of life and diagnosed low back pain “secondary to a work related injury a number of years ago.”
An MRI performed on November 4, 2008, was interpreted as showing an annular bulge at L3-4, with small broad-based disc protrusion on the left, which mildly encroached the lateral recess on the left. Annular bulges were also present at L4-5 and L5-S1.
Dr. Konowalchuk’s office note of February 9, 2009, indicates that the employee was still experiencing daily pain and numbness and tingling in the lateral distal thigh. The doctor reported a history of work-related L3-4 “possible acute disk herniation” and opined that the recent MRI was consistent with possible mild disc herniation impingement on the left L4 nerve root. The report of work ability completed by the doctor on that date listed an injury date of April 3, 2007, noted that the employee could return to work immediately, and specified no restrictions.
In March of 2009, the employee took early retirement from the employer due to financial incentives that were set to expire at the end of that month. He gave no indication to Mr. Burgess that he was retiring because of difficulties with his back.
On April 24, 2009, Ms. Flaim indicated that the employee had not reached MMI “in terms of his injury.” She also noted that the employee’s low back pain “is seemingly debilitating with his present exacerbation.” She reported that his “present symptoms most likely represent[ ] . . . an exacerbation of a chronic low back condition and likely an aggravation of the original injury.” She also recommended back exercises.
The employee secured an attorney and signed a retainer agreement on May 8, 2009. A rehabilitation request was filed on May 13, 2009. The employee was seen again by Ms. Flaim the following day, at which time he complained of burning in the right and left lower extremities. At that time, Ms. Flaim limited his activities until his next appointment, but she did not indicate any specific restrictions. The activity plan she completed indicated that the visit was work-related and designated the injury date as “4/3/07 (initial injury 2002).” She also noted that the employee was not yet at MMI. Similarly, her office notes for June 24, 2009, indicate that the employee’s visit was work-related, and she assessed “low back, chronic, secondary to a work related injury.” She did not indicate at this time whether the employee should continue to limit his activities, but she referred the employee to the Twin Cities Spine Center.
Dr. Timothy Garvey examined the employee on July 1, 2009. He took a history of ongoing back and leg pain that the employee “says is the result of a personal injury in 2002 and was exacerbated in 2007.” Diagnosing minor degeneration and stenosis at the L3-4 level with mild trefoiling at L4-5, Dr. Garvey recommended continuing conservative care. Dr. Garvey did not recommend any restrictions or give an opinion on causation.
The employee’s rehabilitation request proceeded to an administrative conference, and, on August 11, 2009, the employer requested a formal hearing, contending that the employee was not entitled to a rehabilitation consultation because he had reached MMI on March 10, 2008; he had returned to work without restrictions after each work injury; and he had retired from suitable gainful employment voluntarily and for reasons unrelated to the work injury.
The matter proceeded to hearing before a compensation judge, and, in a decision filed on November 12, 2009, the judge found that the employee had failed to show that his work injuries “are substantial contributing factors in any need to limit his activities due to his low back condition,” and he denied the employee’s request for a rehabilitation consultation. 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 (2008). 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 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).
The purpose of a rehabilitation consultation is to determine whether an employee is qualified for rehabilitation services. Minn. R. 5220.0100, subp. 26. While an employer and insurer cannot defeat a request for a rehabilitation consultation by arguing that rehabilitation services are not vocationally necessary, they may “assert other defenses and threshold liability issues - such as, but not limited to, allegations of complete recovery from injury, lack of notice, the expiration of the statute of limitations, and refusal of suitable employment under Minn. Stat. §176.101, subd. 3e.” Judnick v. Sholom Home West, slip op. (W.C.C.A. Aug. 4, 1995).
In the instant case, the employer contested the employee’s request for a consultation by raising the issues of complete recovery and the employee’s alleged refusal of suitable employment by voluntary retirement. The compensation judge found that the employee had failed to show that his work injuries substantially contributed to any need to limit his activities and that the employee had failed to show that he is a qualified employee for rehabilitation consultation. On appeal the employee contends that substantial evidence does not support the judge’s findings. We are not persuaded.
The employee sustained two admitted work injuries to his low back, May 14, 2002, and April 3, 2007. He lost no time from work following either injury. No doctor has recommended any restrictions since May of 2002. While there is currently no medical opinion that the employee is at MMI from the 2007 injury, attainment of MMI is not necessarily determinative in resolving the question of whether an employee is entitled to a rehabilitation consultation.
The employee retired from work with the employer at the end of March 2009. At that time, he was subject to no restrictions and gave no indication to the employer that he was retiring because of low back problems. In fact, no restrictions were placed on the employee, after May of 2002, until Ms. Flaim recommended restrictions on May 14, 2009, a month and a half after the employee’s retirement. That recommendation, which came less than a week after the employee secured an attorney and one day after he filed a rehabilitation request, was simply to “limit activity.” No specific restrictions were listed. Furthermore, while Ms. Flaim has seen the employee since that appointment, she has not indicated that restrictions should continue, and medical doctors who saw the employee in February and July of 2009 did not indicate any need for the employee to limit his activities.
The record as a whole reasonably supports the conclusion that the employee failed to establish that he is subject to restrictions as a result of his work-related injuries. Accordingly, we affirm the judge’s findings in their entirety.