SHAHEED WHITE, Employee/Appellant, v. INSTANTWHIP FOODS and CNA INS. CO., Employer-Insurer, and MIDWEST RADIOLOGY, FAMILY HEALTH SERVS., and O’HARA AND ASSOCS., INC., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 7, 2011
WAGES - SEASONAL WORK. Given the lack of evidence indicating that the employee’s job was affected by seasonal conditions, the compensation judge did not err by failing to calculate the employee’s weekly wage using the method applicable to seasonal workers.
CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence, including expert opinion, supported the compensation judge’s decision that the employee’s work injury was a temporary strain. However, the record did not support the compensation judge’s decision that the employee had reached full healing from that work injury.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Given the opinion of the employer and insurer’s examiner and the lack of other evidence to support the judge’s decision, the record as a whole did not support the conclusion that the employee had reached MMI from the effects of his work injury.
Affirmed in part and reversed in part.
Determined by: Wilson, J., Milun, C.J., and Pederson, J.
Compensation Judge: Jennifer Patterson
Attorneys: Shaheed White, Appellant pro se. Matthew D. Davis, Law Offices of Jeffrey Magnus, Edina, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s findings regarding average weekly wage, maximum medical improvement, nature of the injury, diligence of job search, and entitlement to temporary total disability benefits and rehabilitation benefits. We affirm in part and reverse in part.
In December of 2007, the employee was hired by Instantwhip Foods [the employer] to work as a warehouse worker and driver, which involved lifting 10 to 60 pounds regularly and up to 100 pounds occasionally. He volunteered for overtime and typically worked six or seven days per week.
The employee sustained a work-related injury to his low back on May 18, 2009. He then treated with Dr. Maria Vu the next day. Dr. Vu prescribed medications and restricted the employee from continuous lifting of more than 10 pounds and occasional lifting of more than 20 pounds. The employee was unable to return to his job with those restrictions. The employer and insurer admitted liability for the work injury and began paying temporary total disability benefits.
The employee was seen by Dr. Dietmar Grentz at Physicians Neck and Back Clinic [PNBC] on June 3, 2009. Symptoms noted at that time included low back pain and some numbness and tingling in both legs. The employee completed nine exercise sessions at PNBC but reported increased symptoms.
On July 6, 2009, a rehabilitation plan was filed, indicating that the goal of rehabilitation was to return the employee to work with the employer in his same or a different position. A rehabilitation plan amendment [R-3] was filed when the employee changed QRCs, listing goals of medical management, vocational counseling and guidance, and coordination of a return to work with the employer. The insurer signed off on this amendment.
On July 22, 2009, Dr. Meg Spartz, of PNBC, noted that the employee’s objective examination was normal. An MRI performed about three weeks later, on August 11, 2009, showed epidural lipomatosis at L4-5 and L5-S1 and a small right paracentral disc protrusion at L5-S1.
Dr. Vu referred the employee to physical therapy at Multi Center Physical Therapy, where he was seen on August 14, 2009. According to the treatment plan, the employee was to be seen two to three times a week for three to four weeks. The employee treated four times between August 14 and August 25, 2009. On August 25, 2009, the physical therapist reported that the employee was making slow progress. On that same day, Dr. Vu examined the employee and reported that the employee was doing much better since having started physical therapy. She also noted, “pain is improved, waking up with little pain, but much improved.” At that time, Dr. Vu eased the employee’s restrictions to allow for continuous lifting of up to 20 pounds and lifting of up to 50 pounds on an occasional basis. Dr. Vu also recommended that the employee continue physical therapy.
The employer filed a notice of intention to discontinue benefits sometime in August of 2009. No objection was filed, and benefits were discontinued on or about August 25, 2009. At about the same time, on August 20, 2009, the employee filed a claim petition seeking benefits for an underpayment of temporary total disability benefits, undetermined permanent partial disability benefits, and medical and rehabilitation benefits.
QRC intern Krysten Donnay filed an R-3, in August of 2009, indicating that she had become the employee’s new QRC. An R-3 signed by the employee on August 16, 2009, changed the plan to include “job seeking skills training,” with Ms. Donnay’s rationale being that the employer “cannot accommodate his current work restrictions.” The employer and insurer filed a rehabilitation request on September 3, 2009, seeking to discontinue rehabilitation services.
At some point between August 25 and November 10, 2009, the employee moved to Chicago to live with relatives due to financial difficulties.
The QRC contacted Dr. Vu’s office on November 10, 2009, requesting that the employee’s restrictions be extended until he returned to Minnesota in December. The doctor was not willing to do so without seeing the employee again. The employee did not treat with any doctor in Minnesota after August 25, 2009. By at least November 16, 2009, rehabilitation services had been placed on hold, per an R-3 signed by the employee.
Dr. John Dowdle examined the employee on behalf of the employer and insurer, and, in his report of February 16, 2010, Dr. Dowdle opined that the employee was suffering from mechanical low back pain and that he had sustained a temporary aggravation of his underlying degenerative disc condition at the time of the work injury. The doctor also stated that the MRI findings were not clinically significant and were not related to the work injury. Dr. Dowdle recommended an additional three to six physical therapy treatments over the next month “to facilitate his increase in movement and activities,” and he indicated that the employee would reach maximum medical improvement [MMI] after those treatments. The doctor also opined that, based on objective findings, the employee required no restrictions, but he nevertheless concluded that the employee would have been subject to a 50-pound lifting restriction from the date of injury until the date of his exam.
The employee did not treat with any doctor in the Chicago area until he was seen on May 19, 2010, at Aunt Martha’s Health Center. At that time, he complained of bilateral hand numbness and low back pain. When seen at Aunt Martha’s Health Center on June 23, 2010, the employee was complaining of low back pain that kept him from sleeping.
When the claim petition came on for hearing, the employee was claiming an average weekly wage of $902.54, underpayment of temporary total disability benefits from May 18, 2009, through August 24, 2009, entitlement to temporary total disability benefits thereafter, and reinstatement of rehabilitation services. In findings and order filed on September 29, 2010, the compensation judge found that the employee’s average weekly wage was $568.63, that the employee had sustained a temporary low back strain, that MMI and full healing had been reached on February 16, 2010, that the employee did not have restrictions related to his work injury after October 31, 2009, that the employee did not make a reasonably diligent search for work after August 25, 2009, and that the employee was not entitled to temporary total disability benefits or rehabilitation benefits. The employee, pro se, appeals.
STANDARD OF REVIEW
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1 (2010). 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).
1. Average Weekly Wage
At hearing, the employee contended that his average weekly wage was $902.54, based on his contention that he was a seasonal worker and that his earnings should be averaged over a 52-week period. The compensation judge found that she could not determine, from the evidence submitted, whether the employee’s hours varied because the work was seasonal or for some other reason. We affirm.
Wage records submitted into evidence at hearing showed that the employee’s hours varied from week to week. There was, however, no testimony at hearing suggesting that the employee’s work was seasonal. Minn. Stat. §176.011, subd. 8a, allows for averaging over a 26-week period for employees whose hours vary, and that is what the compensation judge did here. Substantial evidence supports her finding.
2. Nature of the Injury
The compensation judge found that the employee’s work injury was a temporary back strain and that the herniated disc and lipomatosis found on MRI were incidental findings that were clinically insignificant and not related to the work injury. The employee contends that he continues “to endure significant pain on a daily basis,” which has become substantially worse, and that “x-rays and MRI reports show my back has been on a constant rapid decline since my first report of pain.”
The compensation judge relied on the opinion of Dr. Dowdle in finding that the employee sustained a low back strain. A judge’s choice between expert opinions is generally upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W. 2d 337, 37 W.C.D. 364 (Minn. 1985). The employee points to no facts assumed by Dr. Dowdle that are not supported by the record. Accordingly, we affirm the judge’s finding that the employee sustained a low back strain.
The compensation judge also found that the employee’s low back strain was “temporary” and that the employee had reached “full healing” on February 16, 2010. Substantial evidence does not support that finding.
The employee was seen by Dr. Dowdle on February 1, 2010. In his report of February 16, 2010, Dr. Dowdle stated, “I would have Mr. White on a 50 pound lifting restriction currently” and that “the need for restrictions has been substantially contributed to by the work injury.” The doctor also recommended “an additional three to six visits of physical therapy over the period of a month” and stated that “the remaining physical therapy sessions would be related to Mr. White’s injury caused by the work activities at Instantwhip.”
There is nothing in Dr. Dowdle’s report, any other medical record, or the employee’s testimony that would support a finding of full healing on February 16, 2010. Therefore, the judge’s finding to that effect is reversed.
3. Maximum Medical Improvement
The judge found that the employee had reached MMI effective with service of an MMI report on February 16, 2010. While the employee contends that notice of MMI was not served on him, the parties stipulated to service at the beginning of the hearing. Therefore, the only MMI issue before us on appeal is whether the employee reached MMI on the date found by the judge. In that regard, the employee contends that he has ongoing complaints of pain, that he did not seek medical treatment because the employer and insurer would not pay for it, and that Dr. Dowdle had recommended three to six additional physical therapy sessions at the time of his report.
In finding MMI, the compensation judge relied, in part, on Dr. Dowdle’s report that the employee did not have objective findings on February 1, 2010, and the fact that the employee had made no effort to schedule the physical therapy recommended by Dr. Dowdle. The judge went on to find that “an employee cannot indefinitely prolong the occurrence of maximum medical improvement by neglecting to schedule recommended treatment.” However, in Cotter v. Niro Atomizer, slip op. (W.C.C.A. July 12, 1990), this court held that, where an employee has unreasonably refused treatment, thereby delaying MMI, suspension of temporary total disability benefits would make more sense “than to make an artificial finding of MMI that may well be subject to change if the employee subsequently undergoes the treatment.” Id. at 4. In addition, Dr. Dowdle was not a treating doctor and had no doctor/patient relationship with the employee. And as the compensation judge noted, after Dr. Dowdle’s examination, the employer and insurer took the position that the employee had healed from his 2009 work injury. It can therefore be assumed that payment for the recommended physical therapy would have been denied.
Because there is no evidence to support the judge’s finding of MMI as of February 16, 2010, that finding is reversed.
4. Job Search and Temporary Total Disability Benefits
The employer and insurer’s defenses to the employee’s claim for temporary total disability benefits included as follows: that the employee had fully healed from his temporary back strain, that the employee had reached MMI, that the employee had refused employment with the employer, and that the employee did not make a reasonable and diligent search for work. The first two defenses are addressed above. The third was addressed in an unappealed finding indicating that the employee did not unreasonably refuse employment. With regard to the fourth defense, the judge found that the employee made “vague and minimal efforts to find paid employment with a new employer,” and the judge denied temporary total disability benefits from August 26, 2009, to date of hearing on that basis. The employee contends that he “did what I was able to do under my circumstances” and that he understood that he was going to return to his pre-injury employment once he had healed.
Limited evidence about the employee’s job search was introduced at hearing. The employee introduced an exhibit that consisted of a list of twenty-four employers that he had contacted and three employment websites that he had posted on in an effort to find employment. Of that list, four contacts were in Minnesota, and the employee testified that those contacts were made both before and after he moved to Chicago. The employee also testified about one specific job lead, not on the list, that he had inquired about on three occasions. There is no evidence establishing when the listed job contacts were made. Furthermore, the employee’s contention that he understood that he would be returning to work with the employer once he had healed is without basis. This argument was not made at hearing and no evidence was introduced to that effect.
The judge’s conclusion that the employee did not make a reasonable and diligent search for work between late August of 2009 and August of 2010 is supported by the evidence. Because the employee was not totally disabled from work after August 26, 2009, and because he did not make a reasonable and diligent job search, the compensation judge appropriately denied the employee’s claim for temporary total disability benefits for that period.
The compensation judge denied rehabilitation benefits “because the employee has healed from his May 18, 2009 work injury.” Having earlier found that the employee has not fully healed from that injury, we reverse the judge’s denial of rehabilitation assistance on that basis.
On January 20, 2011, O’Hara and Associates moved to intervene for vocational rehabilitation services rendered to the employee from July 14, 2009, to “ongoing.” The employer and insurer filed an objection. An order granting intervention was filed on January 26, 2011.
At the beginning of the hearing on August 5, 2010, the only issue identified as to rehabilitation was the employee’s request “to have rehabilitation services reinstated.” No evidence was submitted regarding any request for payment of services rendered up to the date of hearing. Reference was made to “several rehabilitation requests” filed between August 20, 2009, and date of hearing, but the compensation judge noted that she had been advised that “issues raised by those rehabilitation requests have been resolved” and that the requests could be dismissed.
There being no issue before the compensation judge as to the compensability of rehabilitation services, that issue is not before this court on appeal.
 Lipomatosis is a condition characterized by abnormal localized accumulation of fat in the tissues. Dorland’s Illustrated Medical Dictionary, 1016 (29th ed. 2000).
 The NOID was not part of the record before the judge at hearing and therefore is not before this court on appeal. However, in opening arguments at the trial level, counsel for the employer and insurer represented that the employee’s failure to object to an NOID had resulted in discontinuance of temporary total disability benefits.
 According to unappealed findings.
 On appeal, the employee contends that the employer made statements to “The Department of Civil Rights” to the effect that his hours were due to “the seasonal nature of the business.” This evidence was not before the compensation judge at hearing and will not be considered on appeal.
 In her memorandum, the judge stated that the employee had healed from his temporary low back strain by February 1, 2010, the date of his examination by Dr. Dowdle.