JOHN LEE, Employee/Cross-Appellant, v. U.S. BANK, SELF-INSURED/SPECIALTY RISK SERVS., INC., Employer/Appellant, and THERAPY PARTNERS, INC., and MINNESOTA DEP’T OF HUMAN SERVS./BRS, Intervnors.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 3, 2010
APPEALS - REMAND. Where the parties raised multiple issues on appeal, the issues were particularly interrelated, and the compensation judge erred in her reasoning as to at least some of those issues, the entire decision was reversed and the matter remanded for new findings on all disputed issues.
Reversed and remanded.
Determined by: Wilson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Scott A. Teplinsky, Katz, Manka, Teplinsky, Graves & Sobol, Minneapolis, MN, for the Cross-Appellant. Katie H. Storms, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.
DEBRA A. WILSON, Judge
The self-insured employer appeals from the compensation judge’s conclusion that the employee is subject to continuing restrictions due to his work injury and from the judge’s award of additional medical expenses, rehabilitation benefits, and temporary total disability benefits through January 13, 2010. The employee cross-appeals from the compensation judge’s denial of temporary total disability benefits after January 13, 2010, based on the employee’s alleged failure to attempt offered work, from the judge’s conclusion that the employee did not sustain a compensable psychological injury as a consequence of his admitted bilateral hernia injury, and from the judge’s denial of the employee’s request for chronic pain and functional capacities evaluations. We reverse and remand the matter for reconsideration.
The employee is a native of Laos who moved to the United States in 1988 after spending ten years in a Thai refugee camp. Once here, he attended basic adult education classes, but he did not obtain a GED. While his English language skills are very minimal, he nevertheless obtained a job with U.S. Bank [the employer] in 2000, working as a machine operator and also in shipping and receiving.
On March 21, 2008, the employee experienced groin pain while stacking boxes on a pallet at work. A few weeks later, on April 16, 2008, he underwent surgery for a large direct hernia on the right and a smaller, indirect hernia on the left. The surgeon, Dr. Peter Halvorson, used mesh and mesh plugs to complete the repair. The employer accepted liability for the employee’s injury.
A month or so after his surgery, the employee returned to work for the employer with restrictions on lifting and hours. However, he continued to complain of right-sided groin pain and indicated that he could feel a lump in the area of the mesh. He was evaluated for these complaints by a number of physicians, including Dr. Mark Melin, the employer’s examiner, Dr. Mark Janiga, who treated the employee at Minnesota Interventional Pain Associates, and several surgeons. Diagnostic tests indicated that the hernias had not recurred, but at least one scan suggested that the employee had possibly developed a “reaction to mesh, meshoma, areas of inflammation or edema.” Care provided by Dr. Janiga included medication and nerve root blocks.
The employee became convinced that his symptoms would not improve unless he had the mesh removed. Mesh removal is apparently very difficult, but, despite misgivings, Dr Daniel Dunn eventually agreed to perform the surgery. In the operative report from that procedure, which was performed on May 14, 2009, Dr. Dunn indicated in part that “[t]he mesh itself had balled up into a hard rocklike formation with the plug attached to the patch,” which Dr. Dunn was “fairly certain was causing [the employee’s] pain.” Unfortunately, while Dr. Dunn was closing the surgical wound, the employee coughed, sneezed, and moved around, popping stitches, and Dr. Dunn was therefore required to use another mesh patch to achieve a solid closure.
The employee continued to complain of severe pain following the mesh removal, and Dr. Dunn referred him back to Dr. Janiga for additional pain management, noting, however, that he was unable to identify a source for the employee’s symptoms. Dr. Dunn also indicated that the employee should be capable of employment. In late August of 2009, Dr. Janiga concluded that he had nothing further to offer and suggested that the employee be evaluated by Dr. Matthew Monsein for purposes of determining whether the employee would benefit from a chronic pain program.
The employer had the employee placed under surveillance several times following his injury, including for several days during the summer of 2009. Surveillance recordings show the employee moving and bending in an apparently unrestricted manner, driving, performing yard work, and carrying and lifting various objects, all contrary to his presentation to treating physicians. Also contrary to information contained in some of his treatment records, the employee did not appear to require a cane to ambulate.
The employer provided the surveillance recordings to Drs. Dunn, Janiga, and Melin. Dr. Dunn declined to view the recordings, but he indicated that he did not understand why the employee continued to have so much pain, and he could not see why the employee could not work, noting that there was no evidence of infection or of any mass. Dr. Janiga did view the recordings and subsequently reported that the employee had “physically fully recovered” and that any subjective pain he was having had not significantly hindered him in performing normal physical activities. At the same time, Dr. Janiga indicated that, if the employee was still complaining of subjective pain, he should undergo a full functional capacities evaluation and that, if that evaluation showed “full consistent effort,” the employee’s restrictions should be determined accordingly. Dr. Melin concluded, based on the recordings, that the employee had made a “full and unlimited recovery,” that he had no limitations, and that no further treatment was necessary.
In October of 2009, the employee began receiving treatment for symptoms of depression and chronic pain from Dr. Jeremy Peterson at Phalen Village Clinic. Later that month, the employee was hospitalized at Regions Hospital for suicidal ideation and depression. Records indicate that the employee blamed his depression and suicidal thoughts largely on his ongoing pain. However, records also indicate that, while the employee complained of severe pain during his hospitalization, he was observed to move easily, without signs of discomfort, and to sleep deeply despite complaints of insomnia.
Based on the surveillance records, along with the reports from Drs. Dunn, Janiga, and Melin, the employer filed a notice of intention to discontine benefits. An administrative conference was held, and the requested discontinuance was granted. Around this same period, the employee filed a medical request, seeking approval of a referral for chronic pain treatment by Dr. Monsein, and he later also requested approval of a functional capacities evaluation. In a decision issued following the conference on these issues, the employer again prevailed. Requests for formal hearing were filed by the employee as to both decisions. The employer also subsequently sought to discontinue the employee’s rehabilitation assistance, and all issues were ultimately consolidated for hearing before a compensation judge.
Beginning in December of 2009, the employer made several attempts to return the employee to employment. In response to one such attempt, the employee asked Dr. Peterson for a letter excusing him from work. Dr. Peterson instead wrote a letter indicating that the employee was capable of working with restrictions, explaining that his mood would benefit if he got out of the house. In notes from this appointment, Dr. Peterson indicated that the employee’s diagnoses were major depression and chronic pain. As to whether the employee’s condition was work-related, Dr. Peterson wrote, “To Be Determined.” Dr. Peterson also referred the employee to Dr. Nathan Brever, also at the Phalen Village Clinic, for follow-up.
The employee received psychological treatment from at least two providers: Gregg Schacher, at Phalen Village clinic, and Rhett Tompkins, at Psychiatric Recovery. Apparently, neither Mr. Schacher nor Mr. Tompkins is a licensed medical doctor or licensed psychologist, but both worked under supervision by other mental health professionals. Mr. Tomkins diagnosed the employee as having a “depressive disorder NOS” and chronic pain. Mr. Schacher diagnosed “major depressive disorder, single episode, severe.”
The employer eventually notified the employee that he was expected to return to work on January 13, 2010, and, that day, the employee and his QRC, Debra Bourgeois, met with representatives of the employer to discuss the matter. According to the QRC, the employer indicated at that time that no job was available for the employee consistent with his 10-pound lifting limit and restriction against operating machinery, the restrictions recommended by Dr. Brever. The QRC was therefore asked to obtain additional clarification from Dr. Brever. A week later, the employer sent a letter indicating that the employee’s pre-injury position had been filled. Subsequently, in February of 2010, the employer requested clarification of the employee’s restrictions on at least two more occasions, which the QRC facilitated. Finally, on April 13, 2010, after additional correspondence, a representative of the employer informed the QRC that the employer did not have a suitable position for the employee and that his last day of employment with the employer would be April 15, 2010. The employee was sent notification of his termination accordingly.
The hearing on the consolidated claims was held before a compensation judge the following day, April 16, 2010. At the beginning of the hearing, the judge listed the disputed issues as whether the employee was entitled to the referral to Dr. Monsein, whether the employee was entitled to a functional capacities evaluation and certain medical care, whether the employee was entitled to temporary total disability benefits subsequent to the date of the discontinuance in October of 2009, whether the employee had developed a psychological condition as a consequence of the admitted hernia injury, and whether the employee was suffering from chronic pain due to that injury. The employer’s primary defense was that the employee had fully recovered from the effects of his work injury. Evidence included the employee’s medical records; the reports of Dr. Melin; a report by Dr. Paul Arbisi, the employer’s independent psychiatric examiner; rehabilitation records; correspondence between the employer and the employee’s QRC; DVDs and reports from surveillance; and the testimony of the employee (through an interpreter), QRC Bourgeois, and the employee’s daughter.
The compensation judge issued her decision on June 15, 2010, concluding that the employee was entitled to temporary total disability benefits to January 13, 2010, but not thereafter, based on the employee’s failure to attempt to return to work. The judge also concluded that the employee had not developed a psychological condition as a result of his work injury and that he was not entitled to a functional capacities evaluation or referral to Dr. Monsein. The judge further concluded, however, that the employee continued to require restrictions on his activities, as per Dr. Brever’s records, and that the employee was therefore entitled to continuing rehabilitation assistance and medical care related to his physical condition, including physical therapy. Both parties appeal.
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 employee’s medical records present a complex picture. His work-related physical injury - - bilateral hernias - - is admitted, and he underwent two surgeries and a number of conservative therapies to treat that condition. However, following the second surgery, particularly, the employee’s medical records contain numerous notations by providers questioning the magnitude of the employee’s ongoing pain complaints. Several treating doctors suggested that there was no physical basis for the employee’s continuing symptoms, Dr. Janiga at one point calling the employee’s reported symptoms “nonsensical.” Surveillance evidence showed no real indication that the employee is disabled by his condition, and Dr. Arbisi’s examination and record review caused him to conclude that “there is strong evidence that [the employee] is malingering.” Furthermore, both Dr. Melin and Dr. Janiga, who reviewed the surveillance evidence, concluded that the employee had, effectively, fully recovered from the effects of his work injury. Dr. Brever, on the other hand, continued to impose restrictions on the employee’s activities due to the employee’s physical condition. Records concerning the employee’s alleged depression, and the cause of that condition, are similarly conflicting.
In findings challenged by the employer, the judge concluded that the employee was subject to continuing restrictions due to his hernia condition, pursuant to Dr. Brever’s treatment records, and that he was therefore entitled to temporary total disability benefits through January 13, 2010, and to continuing rehabilitation assistance and certain medical care related to the hernias. In findings challenged by the employee, the judge denied temporary total disability benefits after January 13, 2010, denied the employee’s claim for benefits related to depression, and denied both the referral to Dr. Monsein and for a functional capacities evaluation. After review of the evidence, the compensation judge’s decision, and the arguments of both parties, we conclude that the entire matter should be remanded for reconsideration.
Parts of the compensation judge’s decision appear to reflect a misunderstanding of the record. For example, the judge denied the employee’s claim for temporary total disability benefits after January 13, 2010, based on “a failure to attempt return to work after a job offer by the employer” on that date. However, rehabilitation records, the testimony of QRC Bourgeois, and correspondence from the employer make it absolutely clear that the employer did not have a job for the employee within his existing restrictions that day. On the contrary, both on that day and several times in the months that followed, the employer asked the QRC to obtain clarification of the employee’s restrictions until finally, in April of 2010, the employer terminated the employee from his employment. The QRC also testified that the employee cooperated with rehabilitation assistance.
In a finding relevant to the employee’s claim that he developed depression substantially due to pain from his hernias, the judge quoted Dr. Arbisi’s report in detail, as follows:
Dr. Paul Arbisi conducted a psychological evaluation and issued a report dated March 17, 2010. Dr. Arbisi opined, “Evidence that weighs against the hypothesis that Mr. Lee suffers from a somatic delusion is the fact that the surveillance videotapes demonstrate that he is not behaving in a manner consistent with an individual who truly believes he has a significant medical illness. Consequently, there is strong evidence Mr. Lee is malingering and any depression and resulting impairment he reports is in service of obtaining compensation. Any emotional distress or frustration Mr. Lee genuinely experiences and expresses to treatment providers is most likely due to tangible psychosocial stressors brought on by his economic difficulties stemming from his lack of work and discord within the family rather than Mr. Lee’s claim that he is in pain.” Dr. Arbisi noted, “Mr. Lee’s performance on the Test of Memory Malingering” . . . fell significantly below individuals with severe dementia or head injuries and well below individuals with depression, which suggests that the employee was not exerting sufficient effort in completing the task.” He opined that the March 21, 2008 injury was not a substantial contributing factor to any of the psychiatric diagnoses. He opined that there is no evidence that there is a significant physical injury resulting in Mr. Lee’s pain complaints and that the employee’s complaints are far beyond what is on the videotapes. He did not relate psychiatric evaluations and treatment to a work injury and opined that the employee “. . . made a complete, substantial, and total recovery from the surgeries back in June 2009, which is several months prior to any report of psychiatric problems and his hospitalization for alleged depression.” Dr. Arbisi concluded that the employee has no limitations from a psychological perspective and it would be beneficial for him to return to work.
The compensation judge did not, however, apparently accept Dr. Arbisi’s opinion. Rather, in her memorandum, the judge explained her decision on this issue, to a large extent, as follows:
The only medical provider who relates the employee’s psychological condition to his work is Gregg Schacher. His causal relationship opinion is apparently based solely on meetings with the employee and the symptoms and onset that the employee has described to him. However, in his report of February 10, 2010, he reported, “A new interpretation I suggested was that part of what increased his suicidality last fall was that his wife/children had withdrawn their instrumental/emotional support in reaction to his failure to provide materially for them. [The employee] thought this was accurate.” This interpretation does not support a finding that the employee’s complaints for depression are causally related to the work injury and subsequent pain, rather than a problem involving his family.
The employee has not established, by a preponderance of the evidence, that Mr. Schacher has foundation for his opinion regarding the causal relationship of the employee’s mental health condition to his work injury.
(Emphasis added). However, as the employee points out, Mr. Schacher is not the only provider who related the employee’s depression to his work injury. Rather, there is other medical evidence that would support the conclusion that the employee’s psychological condition was substantially related to his ongoing pain, including some treatment records from the employee’s hospitalization at Regions in October of 2009, some of Dr. Brever’s records, and some records of Mr. Tompkins. Furthermore, contrary to the compensation judge’s statement, Mr. Schacher clearly had foundation for his opinion regarding causation, as a mental health professional who was actually treating the employee for his psychological symptoms. See, e.g., Drews v. Kohl’s, 55 W.C.D. 33 (W.C.C.A. 1996). We would also note that Mr. Schacher’s reports were cosigned by his behavioral health clinical supervisor.
With regard to her denial of the claimed referral to Dr. Monsein, the compensation judge concluded only that “[t]he employee has received pain management treatment and evaluation from Dr. Janiga. Based upon a preponderance of the evidence, the employee has not established entitlement to a referral to Dr. Monsein or for further chronic pain management.” No other explanation was given. However, Dr. Janiga and Dr. Monsein provide entirely different kinds of treatment for pain, and it was in fact Dr. Janiga who originally referred the employee to Dr. Monsein for additional care. It would be one thing had the compensation judge accepted the employer’s argument that the employee had fully recovered, but she did not do so. Given her findings of continuing physical injury and her lack of explanation, we are uncertain of the judge’s basis for denying this claim.
Similarly, in rejecting the employee’s claim for a functional capacities evaluation, the compensation judge noted that Dr. Janiga had recommended the evaluation given the employee’s ongoing subjective complaints, but the judge then concluded, again without further explanation, that “[i]t is determined that subjective complaints are insufficient to establish entitlement to a Functional Capacities Evaluation.” We, however, are aware of nothing in the law to support the compensation judge’s reasoning. That is, we find no authority for the proposition that the right to a functional capacities evaluation is dependent on the presence of objective findings on exam.
We are also concerned that the judge’s findings are at least arguably inconsistent. Many of those findings contain detailed accounts of evidence suggesting that the employee is not disabled, including descriptions of the employee’s activities on surveillance, suggestions in medical records that the employee is malingering, and medical opinions indicating that the employee is capable of working without restrictions. Yet the compensation judge then went on to accept Dr. Brever’s opinion that the employee continues to require restrictions and ongoing treatment, while at the same time rejecting some claims for treatment of the employee’s primary complaint - - pain - - without real explanation. In fact the compensation judge did not expressly either accept or reject the contention that the employee was suffering from “chronic pain,” despite listing that as an issue both at hearing and in her decision.
In summary, the record does not support the compensation judge’s denial of temporary total disability benefits after January 13, 2010, based on the employee’s alleged failure to attempt to return to work. The judge also erred in concluding that Mr. Schacher was the only provider to connect the employee’s depression to his work injury and in concluding that Mr. Schacher’s opinion lacked foundation. The judge further erroneously concluded, apparently, that subjective symptoms are insufficient to support an award of a functional capacities evaluation, and her denial of both the functional capacities evaluation and the referral to Dr. Monsein is arguably inconsistent with her conclusion that the employee requires ongoing restrictions and treatment due to his hernia condition. At the very least, further explanation of these findings is required for adequate review. For all of these reasons, and because all the issues here are exceptionally interrelated, we reverse the judge’s decision in its entirety and remand for reconsideration and new findings on all claims and defenses.
 In fact, in the section of her memorandum dealing with this issue, the judge wrote as follows:
Mr. Tompkins saw the employee January 5, 2010, and reported that the employee’s chief complaint was that he was depressed and he does not believe that he can return to work. Mr. Tompkins noted, “He does not report any specific depressive symptoms.” Mr. Tompkins further reported, “The patient is using an interpreter so is difficult at times to determine the patient’s intent but overall one gets the sense that he is invested in a presentation of incapacity and being victimized by his situation whether it be his work, Vietnam, injury, past experiences, and current family. Denies any psychosis. He is not suicidal or homicidal in the office currently.” Mr. Tompkins encouraged the employee to accept the job with U.S. Bank and see if accommodations would be sufficient. He reported, “He refuses to do this and says he does not feel that he can return to work at any capacity and that he does not desire to do so.” Mr. Tompkins stated, “His presentation is largely one of a person with chronic pain, chronic disabilities and difficulties, and mood appears to be secondary to this. Antidepressants seem to have little or no effect by his report . . .” He recommended continued psychiatric follow-up and that the employee try to return to work.
 The judge’s memorandum suggests that she may have been under the impression that she was being asked to decide whether the employee was suffering from chronic pain syndrome, as opposed to chronic pain. This is not entirely clear from the record, but we see no indication that any provider has as yet formally diagnosed the employee with chronic pain syndrome.
 The only evidence that expressly supports the compensation judge’s denial of ongoing temporary total benefits, the functional capacities evaluation, and the referral to Dr. Monsein is the medical opinion evidence indicating that the employee is fully recovered. But the compensation judge apparently rejected those opinions. As a reviewing court, we are in no position to choose between what seem to be inconsistent findings.