JULIE A. KUJAWA, Employee, v. COBORN’S, INC., and SENTRY INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 16, 2011
DISCONTINUANCE - MATTERS AT ISSUE. Where, in their NOID, the employer and insurer had themselves raised the issue of causation of the cyst in the employee’s hip by referring to it as “a personal health condition” basic to the employee’s refusal of the employer’s job offer, the compensation judge could not fully address the NOID without resolving that causation issue in addition to the reasonable refusal issue, and the employer and insurer could not argue on appeal that they were prejudiced by the judge’s findings on the causation issue as an improper expansion of issues in an expedited hearing.
JOB OFFER - PHYSICAL SUITABILITY; JOB OFFER - REFUSAL. The employee is the person most familiar with the severity of her symptoms, and, where the employee’s testimony that she could not perform the offered job due to pain was credited by the judge and supported by expert medical opinion, the compensation judge’s conclusion that the employee’s refusal of the offered job was reasonable was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Stofferahn, J., and Johnson, C.J.
Compensation Judge: Kathleen Behounek
Attorneys: Jerry W. Sisk and Thomas D. Mottaz, Law Office of Thomas D. Mottaz, Coon Rapids, MN, for the Respondent. Brian J. Holly, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge’s denial of their request to discontinue temporary total disability benefits and from the judge’s finding that the employee’s work injury aggravated an underlying or preexisting cyst, contributing to the employee’s low back symptoms, disability, and need for medical treatment. We affirm.
Julie Kujawa [the employee] sustained an admitted injury to her low back on June 16, 2009, while working for Coborn’s, Inc. [the employer], which was insured on that date by Sentry Insurance Company [the insurer]. The employee worked about twenty-five hours a week at the employer’s service counter, where her duties included the sale of tobacco products, lottery tickets, postage, money orders, and groceries. She was injured when she lifted a 24-pack of bottled water to slide it across her scanner and felt a burning pain in her left hip and left lower back area. The employee was fifty-one years old at the time and was earning a weekly wage of $270.36.
The employee sought medical treatment at the Cambridge Medical Center, where she was followed primarily by Dr. W. Kent Brunell, of the clinic’s occupational health service. Dr. Brunell diagnosed low back pain with left sciatica and treated the employee conservatively, with work restrictions, prescription medications, and stretching exercises. About a month later, the employee began a course of physical therapy at Fairview Northland Clinic. By August 3, 2009, however, the employee reported to Dr. Brunell that her pain level had been increasing, and he assessed low back pain and worsening left sciatica, removed the employee from work, and scheduled the employee for an MRI scan.
In follow-up on August 13, 2009, Dr. Brunell reported that the employee’s MRI had revealed very little pathology in her back. He noted a small right lateral disc protrusion at L3-4, but, because her pain was all on the left side, he did not find her MRI scan consistent with her pain complaints. He released the employee to return to work on her next shift with no limitations, although he renewed her medications and continued her physical therapy.
The following day, the employee returned to work in the employer’s self-checkout area, assisting customers in using a computer to check out their grocery items. Although the job did not require her to physically scan or lift products, the employee had difficulty tolerating the job duties, particularly the necessary standing.
The employee returned to the Cambridge Clinic on August 15, 2009, complaining of increased symptoms after working the previous day. Dr. George Renier issued her restrictions, including a maximum shift length of four hours per day and a requirement that she sit periodically due to pain. The employee attempted to work at the self-checkout position on several more occasions, but she continued to experience an increase in low back pain while performing the job. Five days later, the employee, accompanied by qualified rehabilitation consultant [QRC] Michelle Theis, reported to Dr. Brunell that, on a scale of 1 to 10, her back pain was an 8. Dr. Brunell explained to the employee that her pain was inconsistent with her MRI findings, and he was at a loss to explain her significant pain two months after her injury. He nevertheless took her off work and recommended that she continue with physical therapy and pain medications.
On August 30, 2009, the employee reported to Dr. Brunell with pain levels in the 7 to 10 range on a daily basis. She was using a cane to walk, and she reported that her stress levels were very high. Dr. Brunell concluded that stress was contributing to her pain and inability to work, stating,
I do believe she has pain. I just do not believe that it is coming from the back as she is indicating. I do think she had an injury on June 16, but I think the injury was of a minor type and should not have led to pain extending now some 8 or 10 weeks post initial injury date at a 7 to 10 out of 10 intensity.
The doctor kept the employee off work, continued to prescribe medications and physical therapy, and referred her for a surgical evaluation and advice on how to best move forward with her treatment.
The employee was seen for a neurosurgical consultation by Dr. Gregg Dyste on September 22, 2009. Dr. Dyste reviewed the employee’s August MRI scan and concluded that the L5-S1 disc, which would correlate with the employee’s pain syndrome, looked entirely normal. He found no reason to consider surgery and concurred in the course of action taken by Dr. Brunell. He recommended that the employee continue with conservative care, and he recommended progressive liberalization of her restrictions and activities as appropriate.
The employee and her QRC again met with Dr. Brunell on October 1, 2009. The employee reported that she was doing somewhat better and did have some good days mixed with bad days, with her pain level anywhere between 5 and 7. She indicated that she had continued pain, primarily in the left hip area extending down into the leg. The doctor assessed “low back pain with left-sided sciatica and pain level out of proportion considering a normal MRI finding and lumbar spine.” He released the employee to return to work with limitations that included no lifting or carrying more than ten pounds, no pushing or pulling more than twenty-five pounds occasionally, and only occasional bending, twisting, turning, kneeling, squatting, and overhead reaching. He thought that the employee could perform all of the activities normally required of the back but that she would just have to do them more slowly. In her report on the October 1 visit, QRC Theis noted that the employee complained that her left-side back pain occurred when she drove for any long periods or performed any of her home activities and that she had increased pain with prolonged sitting and standing. Ms. Theis noted also that the employee discussed with the doctor her concern over a lump that the physical therapist had found on her left hip. Dr. Brunell examined the lump and suggested that the employee have this examined by her family doctor.
The employee was seen by family practitioner Dr. Jason Halvorson at the Monticello Clinic on October 9, 2009. She provided Dr. Halvorson with a history of her work injury and her continued discomfort over her left leg, with its lump “that is very tender and palpable over the left iliac crest region.” The doctor assessed lower back pain with left leg symptoms reproduced with palpation of the mass in the left hip area, and he recommended further examination and biopsy of the mass.
Based on Dr. Brunell’s October 1 evaluation and restrictions, the employer again offered the employee work in the self-checkout area, but the employee refused the offer, due to her continuing low back pain. On October 19, 2009, the insurer filed a Notice of Intention to Discontinue workers’ compensation benefits [NOID], asserting that “[r]eturn to work [was] refused by Mrs. Kujawa due to a personal health condition.”
The employee was seen by general surgeon Dr. Susan Hunt on October 28, 2009, for evaluation of the mass on her left hip. Dr. Hunt recommended that the employee undergo an MRI scan of her pelvis. The employee was unable to obtain the MRI, due to lack of insurance or other finances.
About a month later, on November 27, 2009, the employee saw Dr. Brunell in follow-up of her work-related injury. Dr. Brunell, referring to the lump in the employee’s left hip area, stated that the employee had “a medical issue that the patient and I have discussed in the past. We did not initially think that this was compounding the work comp injury, but it is now unclear whether that is indeed the case.” He continued to assess, however, “low back pain with left-sided sciatica and a pain level that is not consistent with her relatively normal MRI findings.” He indicated that he planned on seeing the employee again, once she had “some elaboration on the non-work-related condition that she has had now for quite some time.”
The employee continued to follow up with Dr. Halvorson for the painful mass in her left hip. A biopsy in December 2009 revealed a non-malignant calcified subcutaneous cyst. The employee was referred to a general surgeon for excision of the cyst, but no other treatment options for the employee’s low back and leg symptoms were recommended. The employee remained off work.
On May 7, 2010, Dr. Daniel Hoeffel examined the employee at the request of the employer and insurer. Dr. Hoeffel obtained a history, reviewed the employee’s medical records, and performed an examination. In a report issued June 1, 2010, Dr. Hoeffel opined that the employee had sustained a lumbar strain on June 16, 2009, which had resolved by the time of her October 1, 2009, visit with Dr. Brunell. He placed her at maximum medical improvement with regard to her temporary lumbar strain by that date, and he did not believe that she was subject to any physical work restrictions. In addition, Dr. Hoeffel did not believe that the calcified mass in the employee’s left buttock and its associated pain were causally related to the June 16, 2009, work injury. His opinion on this issue was based on his physical examination, his review of the medical records, and the employee’s report that at the time of her initial injury the pain was more in her low back and not in her left hip. He also found no medical explanation for a twisting injury or a lifting injury generating a calcified mass in the subcutaneous tissue of the buttock.
On May 17, 2010, in reply to a letter from the employee’s attorney, Dr. Halvorson opined that the employee’s work injury was a substantial contributing factor in her ongoing disability. He noted that the employee’s cyst had not been identified prior to her injury and was not symptomatic prior to the injury. It was Dr. Halvorson’s opinion that the work injury at minimum aggravated an underlying or preexisting cyst and caused the cyst to become symptomatic and to stay a source of the employee’s ongoing difficulties with pain in her back and radiation into her lower extremities. He noted that the employee had been taken off work completely, as she had consistently reported that even minor activities aggravated her pain and caused further limitations. It was his opinion that the cyst needed to be removed.
The employee had objected to the proposed discontinuance of benefits and had requested an administrative conference. After several continuances at the employee’s request, an administrative conference was finally held, and a compensation judge issued an order granting the insurer’s request to discontinue the employee’s benefits as of February 26, 2010. The employee objected to the discontinuance, and the matter was heard before Compensation Judge Kathleen Behounek on June 15, 2010.
In a findings and order issued July 14, 2010, the compensation judge determined that the preexisting or underlying cyst in the employee’s low back was substantially aggravated by the June 16, 2009, work injury and was a substantial contributing factor in the employee’s continuing low back symptoms, disability, and need for medical treatment. She found that the employee’s refusal of the employer’s job offer was reasonable in light of her ongoing lower back complaints and the radiation of pain into her left lower extremity. Accordingly, the judge found that the employer and insurer did not have reasonable grounds to discontinue the employee’s temporary total disability benefits. 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 (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 employer and insurer submit two arguments on appeal - - first, that the judge committed an error of law by expanding the issues during the expedited hearing beyond the issue raised by the NOID, and, second, that the employee unreasonably rejected a suitable job offer in October 2009.
1. Expansion of Issues
The employer and insurer argue that the only issue before the judge at the expedited hearing was whether the employee refused an offer of employment within her restrictions in early October 2009. The judge, they assert, went beyond this inquiry to find that the employee’s work injury aggravated a preexisting cyst in her low back and was a contributing factor in her continuing low back symptoms, disability, and need for medical treatment. Because the issues were improperly expanded, they argue, they did not have fair notice that causation of the employee’s cyst would be considered at the expedited hearing along with the job refusal issue. Without such notice, they argue, the employer and insurer were unable to prepare an adequate defense and were unfairly prejudiced. We are not persuaded.
Under the statute, where an objection to discontinuance has been timely filed, an expedited hearing before a compensation judge must be held within sixty calendar days after the Office of Administrative Hearings receives the file from the Commissioner of the Department of Labor and Industry. Minn. Stat. § 176.238, subd. 6. In such expedited circumstances, “The hearing shall be limited to the issues raised by the notice or petition unless all parties agree to expanding the issues.” Id. In this case, a hearing was held to resolve the issues contained in the NOID. The employer and insurer’s stated ground for discontinuance was that “return to work [was] refused by Mrs. Kujawa due to a personal health condition.” The judge recited this issue at the hearing, and the parties agreed that the issue had been correctly identified. We find no merit in the employer and insurer’s argument that they were somehow prejudiced by the judge’s findings on causation of the employee’s cyst, that issue having been raised by the employer and insurer themselves in the NOID, by their reference to the cyst as “a personal health condition.” The employer and insurer had asserted in the NOID not only that the employee had refused a suitable job offer but that her reason for doing so was unrelated to her work injury. The judge could not fully address the NOID without resolving both issues.
At hearing, the employer and insurer offered into evidence the expert medical opinion of Dr. Daniel Hoeffel. Dr. Hoeffel opined that the employee’s calcified mass was not work-related. The employee offered a contrary opinion from Dr. Halvorson. The issue of causation was therefore fully litigated before the judge, and we find no improper expansion of the issues.
2. Refusal of Job Offer
The employer and insurer next argue that they had reasonable grounds to discontinue temporary total disability benefits when, in October of 2009, the employee declined the light duty work offered by the employer within her treating doctor’s restrictions. They contend that the job in the employer’s self-checkout area could have been modified to fit better within the employee’s restrictions. Moreover, they argue, Dr. Brunell’s notes reflect that the employee’s condition had subjectively improved since she last tried the job in August of that year. That she could not perform the job in August, they argue, does not mean that she could not perform it in October. We are not persuaded.
It appears to us that the employer and insurer have, for the most part, simply reasserted here on appeal evidence that they presented to the compensation judge at the hearing below - - evidence that might well, in coordination with Dr. Hoeffel’s opinions, have substantially supported a contrary decision by the judge. The issue on appeal, however, is not whether there exists substantial evidence to support a decision contrary to that reached by the judge but whether substantial evidence exists to support the decision actually reached by the judge. See Land v. Washington County Sheriff’s Dep’t, slip op. (W.C.C.A. Dec. 23, 2003).
In the present case, the judge accepted as credible the employee’s testimony that she was asymptomatic prior to her work injury on June 16, 2009, and that she has had low back pain and radiating left leg symptoms ever since the injury. The judge found the employee’s refusal of the employer’s job offer to be reasonable “in light of her ongoing symptoms, need for additional treatment and inability to perform physical activities due to the effects of her low back condition.” The judge also noted that the employee had been unable to consistently perform the duties of the offered job when she attempted to perform it in August. The employee’s testimony was also supported by the opinions of Dr. Halvorson, adopted by the judge. While other inferences could have been drawn from the evidence, it was not unreasonable, in light of the employee’s testimony regarding her symptoms, for the compensation judge to conclude that the employee’s refusal of the employer’s job offer was reasonable. See Brening v. Roto-Press, Inc., 306 Minn. 562, 563, 237 N.W.2d 383, 385, 28 W.C.D. 225, 226 (1975) (the employee is the person most familiar with the severity of her symptoms and the limitations her back placed on her physical activities); Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness’s credibility is the unique function of the trier of fact). Whether it was reasonable for the employee here to refuse the employer’s job offer was a factual determination for the judge. While the employer’s offer appeared to be consistent with the employee’s medical restrictions, the analysis does not end there. The employee was familiar with the physical demands of the offered position, and her assessment of the situation was supported by Dr. Halvorson. Giving due weight to the opportunity of the compensation judge to evaluate the credibility of the witnesses appearing before her, we hold the judge’s findings to be “supported by evidence that a reasonable mind might accept as adequate,” and so we affirm. Hengemuhle, 358 N.W.2d 59, 37 W.C.D. at 239.
 Because only selected records from the Cambridge Medical Center were offered into evidence, portions of the employee’s medical history have been drawn from the medical record review referenced in Dr. Daniel Hoeffel’s IME report of June 1, 2010.