CHRIS M. HOGAN, Employee/Appellant, v. CEDAR VALLEY SERVS., INC., SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer, and BLUE CROSS BLUE SHIELD OF MINN., MEDICA HEALTH PLANS/INGENIX, and MAYO CLINIC, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 13, 2011
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence in the record as a whole, including expert medical opinion, supports the compensation judge’s finding that the employee sustained a contusion of the left knee that resolved by October 2005.
PERMANENT TOTAL DISABILITY - WORK RESTRICTIONS. Substantial evidence, including expert medical opinion, supports the compensation judge’s findings regarding the employee’s work restrictions.
PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence of record, including expert vocational testimony, supports the compensation judge’s determination that the employee failed to prove he was permanent and totally disabled as a result of his work-related injury.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: Donaldson V. Lawhead, Lawhead Law Offices, Austin MN, for the Appellant. Timothy P. Jung, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s finding that the employee’s personal injury did not cause a permanent injury to his left knee and the judge’s denial of the employee’s claim for permanent total disability benefits. We affirm.
On September 23, 2005, Chris M. Hogan, the employee, sustained a personal injury arising out of and in the course of his employment with Cedar Valley Services, Inc., the employer. The self-insured employer admitted liability for the employee’s personal injury.
On that date, the employee was loading cardboard into a recycling truck when he was struck by an oncoming vehicle. The employee was transported by ambulance to the Austin Medical Center where he complained of numbness of the right arm and chest pain. X-rays of the chest and pelvis were normal. An x-ray of the left leg showed degenerative changes in the knee with no joint effusions. Following an examination, the doctor diagnosed a concussion with loss of consciousness and contusions to the face, abdomen, right shoulder, left thigh, left lower leg, left ankle and left foot. The employee was discharged with instructions to apply ice to his left leg and foot.
The employee returned to the Austin Medical Center on September 27, 2005, and saw Dr. Cory Boyce. The employee stated his main complaints were right shoulder and left knee pain. Examination of the left knee showed no redness, heat, or swelling, although the doctor noted tenderness at the medial joint line. Dr. Boyce opined the employee’s left knee pain was likely from a contusion. The doctor concluded the employee sustained a right shoulder impingement syndrome and prescribed a cortisone injection. The employee returned to see Dr. Boyce on October 3, 2005, with continued complaints of left knee and right shoulder pain. On examination, the employee’s left knee was normal except for medial joint line tenderness. An x-ray of the left knee showed joint space narrowing and the doctor again diagnosed a contusion of the left knee. The doctor ordered physical therapy for the employee’s shoulder. On October 17, 2005, Dr. Boyce reported the employee’s left knee pain had almost resolved but he continued to have significant right shoulder difficulties. An MRI scan of the right shoulder demonstrated a complete tear of the supraspinatus tendon with a high-grade partial tear and tendinosis of the infraspinatus tendon.
Dr. Matthew Kirsch examined the employee on October 24, 2005, for complaints of right shoulder pain. The doctor diagnosed a right rotator cuff tear which he repaired on November 3, 2005. Thereafter, the doctor prescribed physical therapy for the employee’s shoulder. In follow up on December 16, 2005, Dr. Kirsch continued physical therapy, noted the employee was still having some lateral left knee discomfort, and stated that prior x-rays showed essentially bone on bone degenerative arthritis in the medial compartment of the knee. On January 13, 2006, the employee complained of continuing right shoulder pain and left knee pain. An MRI scan of the left knee in March 2006 showed a complete tear of the anterior cruciate ligament (ACL), a suspected tear of the posterior horn of the lateral meniscus and considerable tri-compartmental degenerative changes with extensive loss of cartilage in the medial joint compartment. The employee continued with physical therapy for his shoulder and followed with Dr. Kirsch.
The employee saw Dr. Mark Ciota at the Albert Lea Medical Center on May 10, 2006, for evaluation of his left knee. The doctor obtained a history of the employee’s motor vehicle accident, reviewed the March 2006 MRI scan, and examined the employee. Dr. Ciota concluded the employee had moderate to severe arthritis that preexisted the personal injury, but opined the injury caused meniscal tears and a disruption of the ACL. The doctor stated he wanted to try to avoid ACL reconstruction and recommended a rehabilitation protocol.
The employee had continuing problems with his right shoulder and sought a second opinion from Dr. McCarty at Abbott-Northwestern Hospital. On May 18, 2006, Dr. McCarty performed right shoulder arthroscopic globular capsular release, arthroscopic lysis of adhesions, and a release of the rotator interval. There was no evidence of a recurrent rotator cuff tear.
The employee returned to see Dr. Ciota in July 2006 and they decided to proceed with an ACL reconstruction which was performed in August 2006. By report dated August 2, 2006, Dr. Ciota again opined the employee’s personal injury was a major precipitating factor in the acceleration and worsening of the employee’s left knee arthritis. In September 2006, the employee underwent a diagnostic injection of the glenohumeral joint of the right shoulder. By October 2006, Dr. Ciota noted the employee’s left knee was doing quite well. In January 2007, Dr. Ciota performed a manipulation of the employee’s right shoulder under anesthesia. The shoulder was easily manipulated with no evidence of any tearing, scar tissue, or adhesions.
In April 2007, Dr. Bradley Helms examined the employee on behalf of the self-insured employer. The doctor concluded that the employee’s September 23, 2005, personal injury resulted in a right rotator cuff tear and a left ACL disruption. The doctor noted while the employee did report improvement of the pain in his knee, the pain complaints never went away. X-rays taken following the personal injury, Dr. Helms stated, already revealed some misalignment of the knee joint. While normal x-rays cannot detect ligamentous derangement, Dr. Helms stated the implication was that the knee joint had become misaligned due to the ACL disruption. Further, the doctor noted the employee’s principal complaint regarding his left knee was instability rather than pain which the doctor stated was a typical presentation for an ACL disruption. Accordingly, Dr. Helms opined both the employee’s right shoulder and left knee conditions resulted from the September 23, 2005, personal injury.
A functional capacities evaluation (FCE) was performed by a physical therapist on September 11, 2007, with regard to the employee’s right shoulder and neck pain. The FCE concluded the employee could perform, at a continuous level, kneeling, crouching, squatting, sitting, walking, stair climbing, and right and left upper extremity coordination. The employee was limited to only rare overhead reaching, lifting of ten pounds from the floor to waist level, and carrying up to twenty-five pounds occasionally. Dr. Ciota reviewed the FCE in October 2007 along with the employee and his qualified rehabilitation consultant (QRC). The doctor stated the FCE was done in a controlled environment and he did not think some of the limitations were sufficiently restrictive. By note dated September 18, 2007, Dr. Ciota stated he had spoken with Dr. Brault and they agreed the employee could not lift overhead at all, but opined the employee could attempt to return to work within the remaining restrictions.
In April 2008, the employee was seen by Dr. Kirk Mueller at the Austin Medical Center complaining of depression secondary to his work injury. The employee reported he went through the Pain Rehabilitation Center at the Mayo Clinic in August 2007 but continued to struggle with mood issues secondary to pain as well as limitations in mobility and strength. Dr. Mueller diagnosed an adjustment disorder with depressed mood and depressive disorder and referred the employee for psychotherapy services with Julie Beckmann, a licensed psychologist. In a follow up visit in December 2009, Dr. Chauhan Mohit diagnosed post traumatic stress disorder and major depressive disorder, moderate. The employee continued psychotherapy sessions with Ms. Beckmann. Dr. Mohit reexamined the employee in February 2010 and his diagnosis was unchanged.
The employee returned to see Dr. Ciota in June 2008 complaining of instability in his left knee when he twisted. An MRI scan in June 2008 showed advanced degenerative arthritis with bone marrow edema and a failure of the ACL graft. In October 2008, Dr. Ciota performed a total knee arthroplasty.
In September 2008, Dr. Thomas E. Nelson examined the employee at the request of the self-insured employer. Dr. Nelson obtained a history from the employee, reviewed medical records, examined the employee, prepared a medical report, and his deposition was taken in March 2010. The doctor diagnosed chronic right shoulder pain secondary to a rotator cuff tear caused by the employee’s personal injury and end-stage degenerative arthritis of the left knee with a chronic anterior cruciate ligament deficiency that he opined pre-existed the employee’s personal injury. Dr. Nelson stated that when the employee initially saw Dr. Boyce in September 2005, there was no evidence of acute trauma to the knee and no evidence of a big, swollen bloody knee which would be the case with an ACL tear, and opined the torn ACL preexisted the employee’s September 2005 personal injury. The doctor stated the employee sustained a soft-tissue bruise to his knee in the personal injury which did not aggravate or accelerate the pre-existing arthritis. Dr. Nelson opined the employee required work restrictions due to his right shoulder injury as outlined in the 2007 FCE and stated the employee could lift up to two pounds over his head, carry up to 25 pounds, push-pull up to 65 pounds, and kneel, crouch, sit, walk or climb stairs. He found no reason why the employee could not work with his right arm resting on a table using it for fine manipulation or writing. Within these restrictions, Dr. Nelson opined the employee could work on a fulltime basis.
The deposition of Dr. Ciota was taken in March 2010. The doctor opined the employee sustained an ACL tear and a worsening of pre-existing arthritis in his left knee as a result of the September 2005 personal injury. The doctor stated that he disagreed with the results of the FCE and stated the employee’s right hand and arm are not functional and the employee could not use his right arm within the parameters of the FCE. Dr. Ciota opined the employee is permanently and totally disabled due primarily to the status of his right arm.
At some point after his personal injury, the employee returned to work with the employer for a limited period. In June 2006, Julie Kjos, a QRC, met with the employee for a rehabilitation consultation. Ms. Kjos prepared a Rehabilitation Plan with a goal of a return to work with the employer in a modified position. Ms. Kjos noted the employee initially worked for the employer in a part-time light-duty job but then went off work following his shoulder surgery and ACL surgery. In October 2007, the QRC spoke with the employer and was informed they did not have work for the employee within his limitations. Thereafter, the employee participated in a vocational assessment which identified categories of employment that might be appropriate for the employee.
On January 29, 2008, Ms. Kjos noted the employee had obtained a part-time job as a substitute crossing guard for the Austin School System, one hour in the morning and one hour in the afternoon which paid $7.00 per hour. By report dated January 31, 2008, Ms. Kjos stated the employee continued to participate in job search but had not received any job offers. In May 2008, Ms. Kjos met with the employee and the placement specialist and agreed services would continue. Ms. Kjos also recommended the employee take a computer skills enhancement program. By report dated June 3, 2008, Ms. Kahnke, the placement specialist, stated the employee was hesitant to contact employers because he feared he would get a job offer he would be unable to perform. Ms. Kahnke further stated the employee had limited his job search because he did not want to work nights and did not like to work with people. She concluded the employee had become very selective regarding the job leads he would follow up on. Job search efforts were discontinued after the employee underwent knee surgery in June 2008.
John E. Peterson, a QRC, completed a vocational assessment of the employee in July 2009. In his report, Mr. Peterson noted the employee had attempted unsuccessfully to return to work for the employer following his personal injury and had not found alternative employment despite an extensive and substantial job search under the direction of Ms. Kahnke. Mr. Peterson opined the employee’s inability to use his right arm in any significant manner was a significant impediment to employment. Mr. Peterson opined that the employee’s age, lack of success at rehabilitation efforts, his educational level, lack of transferrable skills, and his permanent restrictions, rendered the employee permanently and totally disabled.
Bill Rutenbeck, a QRC, met with the employee in March 2010 at the request of the employer and conducted a vocational assessment. Mr. Rutenbeck concluded the employee’s job search efforts should have focused on human services aide positions and light companion positions. Mr. Rutenbeck performed a labor market survey and identified three employers in the Austin, Minnesota, area with openings for light companion/housekeeper positions which paid approximately $9.00 an hour. Mr. Rutenbeck stated the employee was physically capable of performing these jobs and opined the employee was not permanently and totally disabled.
Mr. Peterson reviewed the vocational report of Mr. Rutenbeck and had conversations with the employers identified in that report. In a follow up report, Mr. Peterson stated the homecare positions required the ability to do basic cleaning, some meal preparation, and maintenance activities such as bed making. Mr. Peterson stated the employee was physically incapable of performing the home healthcare positions because of his inability to use his right hand. He opined work as a companion was very sporadic and inconsistently available and should not be pursued by the employee.
The employee filed a claim petition claiming entitlement to permanent total disability benefits commencing September 23, 2005, permanent partial disability benefits and medical expenses secondary to a claimed left knee injury, and a psychological injury. Following a hearing, the compensation judge found the employee sustained a psychological injury in the nature of an adjustment disorder and/or anxiety and depression for which the judge awarded permanent partial disability benefits and medical expenses. The compensation judge found the employee failed to prove he was permanently and totally disabled, finding that the employee did not fully cooperate with the rehabilitation plan and conducted a limited job search. Finally, the compensation judge found the September 23, 2005, personal injury was not a substantial contributing cause of the employee’s ongoing knee problems or his need for the knee surgeries. The employee appeals.
1. Causation of Left Knee Problems
The compensation judge found the employee’s personal injury did not cause, aggravate, or accelerate the employee’s preexisting arthritis of the left knee, the torn ACL, or the need for medical treatment of the knee. The employee contends this finding is unsupported by substantial evidence. He argues his left knee pain was persistent from the date of his injury until his surgery, and his complaints of knee pain are corroborated by the medical records. Further, the employee asserts the reports and testimony of Dr. Ciota and Dr. Helms establish a causal connection between the personal injury and the subsequent medical care for his knee. While the employee acknowledges there is evidence that his knee condition did not result from the personal injury, the employee argues this evidence is not substantial or evidence a reasonable mind could determine is adequate to support a denial of the claim. Accordingly, the employee contends the decision of the compensation judge should be reversed. We disagree.
The employee testified that following his injury, his left knee was so swollen he was unable to get pants on and had to wear sweatpants. The employee described the swelling as the size of a softball. However, as the compensation judge noted, neither the emergency room records nor the notes of Dr. Boyce reflect any significant swelling of the left knee. Rather, in his September 27, 2005, examination, Dr. Boyce stated the employee’s left knee showed no redness, heat, or swelling. Dr. Boyce made similar findings on October 9, 2005, and by October 17, 2005, the doctor stated the employee’s left knee pain had essentially resolved.
Dr. Nelson testified that when Dr. Boyce first examined the employee on September 27, 2005, the left knee showed no evidence of swelling, ligamentous instability, or acute trauma and the employee had a normal range of motion. Contemporaneous x-rays, Dr. Nelson stated, showed arthritis involving the medial compartment with some lateral subluxation of the tibia with reference to the femur which was evidence of some damage to the ACL. Accordingly, the doctor maintained that the employee’s osteoarthritis pre-existed his personal injury. Dr. Nelson testified that when the ACL is torn, there is a lot of blood in the knee joint. He stated nothing in Dr. Boyce’s examination correlated with a “big swollen bloody knee, which is what you would see with an ACL tear.” (Resp. Ex. 2.) The doctor opined the employee sustained a tear of the ACL prior to his personal injury. Dr. Nelson opined the employee suffered a contusion of his knee in the personal injury that did not aggravate or accelerate the preexisting arthritis or cause the need for the ACL reconstruction or the total knee replacement.
Clearly, there is evidence in the record to support the employee’s position that his work injury was a substantial contributing cause of his left knee condition and the associated medical treatment. This evidence includes the testimony of the employee and the opinions of Dr. Ciota and Dr. Helms. Under this court’s standard of review, however, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the compensation judge’s findings. Where evidence conflicts or more than one inference can be drawn from the evidence, the judge’s findings are to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). In this case, the contemporaneous medical records as interpreted by Dr. Nelson together with the opinions of Dr. Nelson provide adequate factual support for the compensation judge’s findings. Accordingly, the judge’s finding that the employee sustained a contusion of his left knee which resolved by October 17, 2005, is affirmed.
The compensation judge found the employee has work restrictions including only occasional lifting of 10 pounds from the floor, occasional carrying of 25 pounds, and no overhead lifting. In his memorandum, the compensation judge stated the employee was capable of light work within the restrictions outlined in the FCE, except that the employee should not do overhead lifting. The compensation judge further noted that while the employee was limited in the use of his right arm, there is no medical reason why he should not be able to use the right arm to some extent. The employee appeals this conclusion and asserts the function of his right arm is much less than that found by the compensation judge. Citing the report and testimony of Dr. Ciota, the employee contends the functioning in his right arm is limited to a minimal helping role with no lifting overhead.
Dr. Nelson opined the restrictions outlined in the FCE were appropriate for the employee. The doctor testified these restrictions were based on what he described as a very good FCE and were typical of what would be seen after a rotator cuff repair. Dr. Nelson disagreed with Dr. Ciota that the restrictions outlined in the FCE needed to be modified. Rather, Dr. Nelson opined there was no reason the employee could not work with his right arm resting on a table using it for fine manipulation or writing. The opinions of Dr. Nelson provide substantial factual support for the compensation judge’s findings regarding restrictions and that finding is affirmed.
3. Permanent Total Disability
The compensation judge found the employee failed to prove he was permanently and totally disabled by reason of his personal injury. The employee contends this finding is unsupported by substantial evidence based upon the record as a whole. The employee argues he has significant restrictions, suffers from depression, and has a limited education and limited skills. The employee contends he cooperated with the rehabilitation plan, but the QRC and placement specialist provided no specific recommendations or job search plans which were appropriate for the employee given his restrictions, education, and experience. Further, the employee contends the companion positions identified by Mr. Rutenbeck generally require housekeeping duties which are too physical for the employee. The employee asks this court to reverse the compensation judge’s finding that he failed to prove he was permanently and totally disabled.
At the hearing, Mr. Peterson testified that the employee essentially had no transferrable skills because of the loss of use of his right arm. He opined the employee conducted a reasonable and thorough job search. The QRC testified he investigated the jobs cited by Mr. Rutenbeck in his report and spoke with the employers. He testified the employers told him that a great majority of the services provided by a home healthcare aide to clients involve cleaning, meal preparation, transporting clients to doctor’s appointments, and shopping. Mr. Peterson testified both he and the employers agreed the employee would not be able to perform these functions due to his inability to use his right arm. Accordingly, Mr. Peterson opined the employee was permanently and totally disabled.
Mr. Rutenbeck testified the employee had excellent people skills and enjoyed jobs where he worked with people. Further, the employee’s work history demonstrated that he was a reliable employee which is an asset in obtaining employment. However, Mr. Rutenbeck stated that the employee did not perform a diligent job search because he submitted too few resumes and applications and obtained no interviews. Further, Mr. Rutenbeck opined the employee’s job search was unfocused and needed to emphasize non-physical types of work that utilized his strong social skills. Mr. Rutenbeck testified the restrictions outlined in the FCE where less restrictive than those of Dr. Ciota and would afford a broader range of employment possibilities. Finally, Mr. Rutenbeck opined the employee could find employment in areas such as a home companion which would provide him with an earning capacity equal to his pre-injury wage.
We acknowledge there is merit to the employee’s argument that he is permanently and totally disabled. Given the significant restrictions on the employee’s work abilities coupled with his depression and limited transferrable skills, there is evidence of record which would support a different result. As we previously stated, however, the issue on appeal is not whether the evidence would support a different result but whether the substantial evidence supports the decision of the compensation judge. The testimony of Mr. Rutenbeck provides substantial evidentiary support for the compensation judge’s decision. Accordingly, that decision must be affirmed.