MANUEL RAMIREZ, Employee, v. ACTION ROOFING and MINNESOTA ASSIGNED RISK PLAN/RTW, INC., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 8, 2010
TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Substantial evidence, including medical opinion and the employee’s testimony, supports the compensation judge’s finding that the employee had work restrictions through the date of the hearing.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Michelle Barone Osterbauer, Joseph J. Osterbauer, and Kirsten M. Tate, Osterbauer Law Firm, Minneapolis, MN, for the Respondent. Colleen O. Kaufenberg, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee continues to have work restrictions as a result of his work-related injury and therefore is entitled to ongoing temporary total disability benefits and provision of rehabilitation assistance. We affirm.
This claim involves an injury sustained by Manuel Ramirez, the employee, on July 14, 2008. By that time, he had worked four years for Virgilio Luriano, who was engaged as a subcontractor for Action Roofing. Mr. Luriano, however, was uninsured for workers’ compensation liability in Minnesota and therefore Action Roofing, as the general contractor, assumed liability for the employee’s injury. Action Roofing and its insurer, the Minnesota Assigned Risk Plan, as administered by RTW, Inc., have paid benefits to and on behalf of the employee, including temporary total disability benefits, medical expenses and rehabilitation assistance.
As a roofer, the employee’s job duties included removing roof shingles, throwing the old shingles off the roof, removing roofing nails, climbing ladders, carrying shingle packs, installing roof shingles, gathering and discarding trash, and filling and emptying wheelbarrows. On July 14, 2008, the employee was climbing on a ladder that was leaning against a building when the ladder slipped or fell away. The employee testified that he fell approximately nine feet off the ladder, landing on both feet and injuring both legs. He noted severe pain but was able to stand with assistance.
The first medical reports contained in the record after the employee’s injury document treatment on July 20, 2008, at the emergency room of the University of Minnesota Medical Center, Fairview (Fairview). According to the employee, he reported to the emergency room when his pain did not resolve. He also reported some swelling, and advised that he had used medication to treat his pain. X-rays taken at the hospital on July 20 showed a closed and nondisplaced right fibular fracture, for which he was provided a short splint. X-rays also showed a closed and nondisplaced fracture of the fifth metatarsal on his left foot. Upon discharge from the hospital, the employee was advised to use a wheelchair and to transfer with limited weight bearing, and to return if he noticed worsening pain or tingling.
At a follow-up appointment on July 30, 2008, at the orthopedic department at Fairview, the employee reported that he had fallen off a ladder on July 14, and that he had continued to use leg splints along with a wheelchair and crutches. Dr. Joseph Schuster, doctor of podiatric medicine (D.P.M.), applied bilateral short fiberglass casts and referred the employee to Dr. Fernando Pena, a foot and ankle specialist in the orthopedic department, for a determination if his right fibular fracture warranted surgical correction versus casting. Dr. Schuster advised the employee to be off his feet for four to twelve weeks.
As a result of his work injury, the employee later developed a deep vein thrombosis (DVT) in his left leg and a pulmonary embolism. These conditions were initially detected by Dr. Pena at an examination on August 12, 2008, when he became concerned about the swelling in the employee’s legs as well as his shortness of breath and chest pain. After ultrasound examinations showed bilateral pulmonary emboli and extensive DVT in the left lower extremity, Dr. Pena referred the employee for emergency treatment. He also removed the employee’s cast on his left leg and provided the employee with a CAM walking boot for his ankle. The employee was hospitalized for approximately five days for treatment of those conditions, and was later released from the hospital with a prescription for Coumadin, a blood thinning medication and, later, a compression or Jobst stocking to wear on his left lower leg to control the swelling. The employee’s ongoing medical treatment was monitored by his treating physician, Dr. Carol Krush, at the Native American Community Clinic, and he also received follow-up care with the Fairview orthopedic department, including physical therapy.
The primary issue on appeal relates to the employee’s restrictions resulting from his work injury; the record contains conflicting medical opinions concerning the employee’s need for restrictions. The employer and insurer provided the employee with rehabilitation assistance commencing in mid-August 2008, including medical management and assistance with a job search, and the employer and insurer, as well as the employee’s QRC, monitored the employee’s medical treatment and the restrictions assigned by his physicians. By October 14, 2008, Dr. Pena advised the employee to proceed with a progressive return to activities and that he had no activity restrictions. On November 25, 2008, the employee reported continued pain in his left foot; Dr. Pena diagnosed left foot plantar fasciitis and recommended additional physical therapy and treatment with medication and ice. Dr. Pena released the employee to work with a restriction of no standing more than four hours. By December 19, 2008, after completing 13 therapy visits, the employee advised his physical therapist that he no longer had pain or any symptoms in his foot; he was discharged from physical therapy at that point, and was advised to continue home exercises.
The employee again sought treatment at Fairview on December 21, after slipping on ice and hitting his left great toe on a curb. Dr. Elizabeth Godin diagnosed a left great toe contusion and left ankle sprain, and provided the employee with a gel splint for his ankle.
On December 30, 2008, Dr. Krush outlined work restrictions for the employee, advising that he could return to work for four hours each day, with no sitting or standing longer than one hour without a 5-minute walking break. She also restricted the employee from lifting over 10 to 20 pounds. On January 23, 2009, the employee was treated for muscle contraction headaches. A CT scan of the head had normal results; ultrasound testing confirmed the continued existence of DVT in the left leg.
According to a return-to-work slip dated February 2, 2009, Dr. Krush advised that the employee was unable to work from July 14, 2008, until December 30, 2008. By late March 2009, Dr. Krush anticipated that the employee could start work by May 1, for 4 to 6 hours per day, at ground level, if he was also cleared for work by his orthopedist and hematologist.
On April 2, 2009, Dr. Pena released the employee to return to work without restrictions, from an orthopedic standpoint. Shortly thereafter, however, he referred the employee to the Center for Bleeding and Clotting Disorders at the University of Minnesota Medical Center, for an assessment of his readiness to return to work with regard to his DVT condition. Physician Assistant Ricky Chan conducted a hypercoagulation work-up to assess the need for continued anticoagulation therapy. By April 23, P.A. Chan concluded that the employee could discontinue taking blood thinning medication, and that within a matter of days of stopping that medication, he could return to work without restrictions associated with a DVT. He advised that the employee was “medically stable from our (Hematology) standpoint to return to work as a roofer without any restrictions.” P.A. Chan also recommended that the employee continue using a compression stocking on his left leg for an additional year, and that that employee had reached MMI from his blood clot condition as of April 23, 2009.
On April 14, 2009, Dr. Scott McGarvey, orthopedist, examined the employee at the request of the employer and insurer. According to Dr. McGarvey’s report issued on May 14, 2009, the employee reported that he had no current complaints or symptoms. Dr. McGarvey confirmed that the employee’s treatment to date had been reasonable and necessary, and causally related to his work injury, but also advised that the employee was no longer in need of additional orthopedic medical care and treatment. He deferred the decision concerning ongoing monitoring of his anti-coagulation therapy to the employee’s primary care physician. Dr. McGarvey concluded that the employee had reached MMI from his orthopedic injuries as of April 14, but that he had not yet reached MMI for his consequential DVT condition. On the issue of work restrictions, Dr. McGarvey concluded that the employee would have been completely restricted from work for approximately three months post-injury. He further stated that:
From October 15, 2008 through December 19, 2008, he could have worked a sedentary job with increasing mobility over time with no working/walking on uneven surfaces until December 19, 2008 when he was released to return to work without restrictions by Dr. Pena. It is my opinion, from an orthopedic standpoint, that Mr. Ramirez would not have any work restrictions at this time and continuing.
He may have restrictions relating to his anti-coagulation (generally, minimize unnecessary trauma due to bleeding concerns while on Coumadin). This would typically be determined by the hematologist or internist who is following this condition.
By May 5, 2009, Dr. Krush approved the employee’s return to work as a roofer, on a graduated basis: 4 hours per day during his first week of work, 6 hours per day during the second week, and 8 hours per day by his third week. On June 25, 2009, Dr. Krush referred the employee to Abbott Northwestern Hospital for a work hardening/conditioning treatment. She advised that the employee should remain “off work till formal work hardening program completed or work hardening accomplished at work.”
On August 25, 2009, Dr. Krush advised that the employee could return to work at 8 hours per day. He attempted to return to roofing work on August 31, but after working less than one hour, he developed headaches and also noted swelling and pain in his left leg. He reported to the emergency department where Dr. Benjamin Peake attributed his headaches to dehydration. Dr. Peake was unsure of the cause of the employee’s left leg swelling and pain, and suggested that those symptoms might have resulted from simple edema or possible muscular pain. An ultra-sound test was negative for recurring DVT in the lower left leg.
According to Dr. Krush’s chart note of September 9, 2009, she ordered various diagnostic tests as a follow-up to his recent emergency room visit. She stated that the employee could only do sedentary work with minimal walking for one month while she evaluated his leg swelling and headaches. By September 25, 2009, Dr. Krush issued a report stating that the employee’s inability to continue working after his recent attempt to return to work was related to his work injury of July 14, 2008. She confirmed that he had post-phlebitic edema and discomfort in his left leg resulting from his work injury and that the edema was followed by pulmonary emboli. Dr. Krush stated that “[r]estrictions necessary are that his work should be primarily sedentary although it is good for him to get up and walk at least hourly,” and that he “needs to wear Jobst stockings.”
On November 4, 2009, the employee was examined by Dr. Thomas Flynn, hematologist, at the employer and insurer’s request. Dr. Flynn confirmed that the employee had developed deep venous thrombosis and associated pulmonary emboli directly related to his work injury. He concluded that the employee has no increased risk of experiencing any recurrence of that condition, in comparison to the general population. He found no clear evidence of edema or swelling in the employee’s left lower leg, and acknowledged that the employee’s complaints of ongoing leg swelling and pain were not unusual following venous thrombosis, and that it was due to those complaints that the employee had been recommended to use compression stockings. Dr. Flynn concurred with the Center for Bleeding and Clotting Disorders concerning the employee’s ability to return to work without restrictions. He also concluded that the employee had reached maximum medical improvement [MMI] on April 23, 2009.
The employer and insurer filed a notice of intention to discontinue (NOID) the employee’s ongoing temporary total disability benefits as of June 8, 2009, contending that the employee was no longer subject to work restrictions. They based the NOID on various medical opinions, dated between November 2008 and May 2009, including those of the employee’s treating physicians and Dr. McGarvey, independent medical examiner. Following an administrative conference, the employee filed an objection to discontinuance, which was addressed at a hearing on November 5, 2009. By agreement between the parties, that matter was consolidated at the hearing with a rehabilitation request filed by the employer and insurer, in which they sought to discontinue rehabilitation assistance on the basis that the employee no longer required work restrictions related to his work injury. At the hearing, the parties stipulated, as follows:
- On July 14, 2008 – the date of the employee’s work injury – the employee’s actual employer was uninsured for workers’ compensation purposes. Action Roofing/RTW Inc., has assumed liability for workers’ compensation benefits to date because the uninsured employer was a subcontractor for Action Roofing on the date of injury.
- On July 14, 2008, the employee sustained an injury to his left foot and right ankle and subsequently developed consequential deep vein thrombosis (DVT) and a pulmonary embolism. The employer/insurer stipulates that all the above noted conditions arose out of and in the course of the employee’s July 14, 2008 work injury.
- The employee was released to return to work without restrictions by his treating orthopedist on April 2, 2009.
(Findings and Order, at 2.)
In her findings and order, served and filed November 25, 2009, the compensation judge determined that the employee has had work restrictions as a result of his July 2008 work injury, from June 8, 2009, through the time of hearing on November 5, 2009. The compensation judge ordered reinstatement of the employee’s temporary total disability benefits as of June 8, 2009, and concluded that benefits shall continue as long as the employee’s disability shall warrant. The compensation judge also denied the employer and insurer’s request to terminate rehabilitation services, concluding that the employee remained eligible for rehabilitation services as a result of his work injury.
The compensation judge found the employee’s testimony to be credible concerning his ongoing swelling and pain in his left leg, and explained that she had been persuaded that the swelling and pain have resulted in restrictions, for two reasons. First, the compensation judge concluded that the employee credibly testified to limitations in his ability to be on his feet for extended periods of time. In addition, she determined that the evidence indicated the employee was anxious to return to work, and that he was committed to doing all that he could to return to suitable work as soon as possible. As the compensation judge stated in her memorandum:
I recognize that the exact nature and extent of the restrictions at this point are unclear. But I consider the evidence sufficient to conclude the employee’s restrictions currently prevent him from returning to full time work as a roofer, his date of injury occupation.
The employer and insurer 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. 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 the 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).
An employee is not entitled to temporary total disability if he or she is able to return to work without restrictions “having suffered no residual disability from his work injury.” Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987). The employer and insurer argue that there is insufficient evidence in the record to support the compensation judge’s finding that he has ongoing restrictions since he had been released to work without restrictions by his treating orthopedist and hematologist, as of April 2009, and also by Dr. Thomas Flynn, who conducted an independent hematological examination of the employee in November 2009. The employer and insurer also argue that the compensation judge’s finding that the employee has restrictions lacked adequate specificity since the finding does not precisely indicate what the employee’s restrictions were at the time of the hearing.
After being released to return to work, the employee attempted to return to work on August 31, 2009. He stopped working within an hour because of a headache that developed as well as pain and swelling in his left leg. The employee was treated at an emergency room and then on September 9, 2009, by Dr. Krush. In a report dated September 25, 2009, Dr. Krush opined that the employee had post-phlebitic edema and discomfort in his left leg resulting from his work injury and that the edema was followed by pulmonary emboli. She also indicated that the employee’s inability to continue working after his recent attempt to return to work was related to his injury of July 14, 2008. Dr. Krush recommended restrictions including that the employee’s work should be primarily sedentary, that he should walk hourly, and that he wear compression stockings. There is no further report from Dr. Krush in the record.
The employer and insurer argue that Dr. Krush’s opinion does not have adequate foundation since she is the employee’s primary care physician and not a specialist such as Dr. Pena or Dr. Flynn. Foundation goes to the competency of a witness to provide an expert opinion. The competency of a medical expert depends both on the witness’s scientific knowledge and the witness’s practical experience with the subject matter of the offered testimony. 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)). Sufficient knowledge of the subject matter may be obtained by personal knowledge and experience, review of medical records, a hypothetical question or testimony at the hearing. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). Dr. Krush was the employee’s primary care physician and had treated the employee since shortly after the injury. This level of knowledge and experience is sufficient to provide adequate foundation for the opinion of a medical expert. The compensation judge could reasonably rely upon Dr. Krush’s medical opinion. Where there is adequate foundation for the opinion adopted by the judge, this court must uphold the compensation judge’s choice among medical experts. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The issue of whether an employee is able to return to work without restrictions is a question of fact for the compensation judge to determine. Hoy v. Employment Plus, slip op. (W.C.C.A. Sept. 3, 2003). Further, this determination does not require the support of formal restrictions by a doctor. Kuester v. MR Paving & Excavating, Inc., No. WC08-196 (Jan. 20, 2009) (citing Hendrickson v. Parsons Elec. Co., No. WC07-134 (W.C.C.A. Oct. 11, 2007) (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 solely based on a doctor’s opinion). The compensation judge specifically relied on the employee’s testimony that he was limited in how long he could be on his feet. An employee’s testimony may provide evidentiary support for a determination that an employee has restrictions. Al-Hameed v. Bailey Constr., No. WC09-144 (W.C.C.A. Aug. 3, 2009) (citing Carlson v. Northland Paper Supply, slip op. (W.C.C.A. Jan. 8, 1999)). In addition, although the employer and insurer argue that the Native American Community Clinic records are unclear, Dr. Krush’s report of September 25, 2009, clearly outlines her recommendations for sedentary work, walking on an hourly basis, and continued use of compression stockings. We conclude that it was not unreasonable for the judge in this case to conclude that the employee had ongoing physical restrictions, while not specifically indicated, which were significant enough to prevent him from working at the time of the hearing. Accordingly, we affirm the compensation judge’s award of temporary total disability benefits and rehabilitation services.
 For brevity in this decision, we refer to Action Roofing, the general contractor, as the employer.