LESLIE O. CHERRY, Employee, v. DUININCK BROS., INC., and ACIG/GAB ROBINS N. AM., INC., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 14, 2012
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, medical records, and the employee’s testimony, provided substantial support for the compensation judge’s finding that the 2008 work injury was a substantial contributing cause of the employee’s current disability and wage loss.
PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS. The compensation judge’s findings and memorandum adequately disclose the factual and legal basis for her decision and are sufficient under Minn. Stat. § 176.371.
Determined by: Hall, J., Stofferahn, J., and Johnson, J.
Compensation Judge: Peggy A. Brenden
Attorneys: Kristen M. Tate, Joseph J. Osterbauer and Kristine Pasowicz Wobig, Osterbauer Law Firm, Minneapolis, MN, for the Respondent. Timothy P. Jung and Natalie K. Lund, Lind, Jensen, Sullivan & Peterson, Minneapolis, MN for the Appellants.
GARY M. HALL, Judge
The employer appeals from the compensation judge’s findings that the employee sustained a low back injury as a result of his admitted June 12, 2008, work injury; that the work injury remains a substantial contributing factor in the employee’s disability; and that the employee is entitled to temporary partial disability compensation. We affirm.
The employee lives in Olivia, Minnesota. At the time of his admitted work injury, the employee worked for the employer driving a commercial tractor-trailer truck used in road construction work. The employee testified that this job required him to work in a seated position for most of each day. The clutch had nine gears and operating the truck required engaging the clutch about 60 times an hour. It was necessary to climb in and out of the truck cab, and to climb over various items of equipment to fasten tarps and cables.
On June 12, 2008, the employee was injured while driving his truck on a rural road when another truck ran a stop sign and crossed the path of the employee’s truck, forcing him to stop the truck so rapidly that it jackknifed, with the trailer denting in the side of the cab. The employee was restrained from being forcefully tossed about by his seatbelt.
The employee didn’t notice any symptoms until the following day, when he began to have light pain in his abdomen. His abdominal pain increased greatly over the next few days, and on June 16, the employee was seen by Dr. Alan J. Roiseland at the Family Practice Medical Clinic in Willmar. The employee complained of left abdominal wall tenderness from the left hip flexors up to the ribs. He was tender with palpation over the left abdominal musculature. Dr. Roiseland diagnosed a left abdominal wall strain and imposed light duty work restrictions with no driving and no lifting over ten pounds.
The employee returned to work for the employer and was provided with light duty work.
On June 20, 2008, the employee returned with continuing pain in the abdomen. Dr. Roiseland noted a lesion in the employee’s rectus musculature which he thought was likely a hematoma. He prescribed physical therapy and more stringent work restrictions.
As the employee’s abdominal strain gradually started to improve, he began to note pain going down the lower back and through his hip down the left leg and into the left foot.
In July 2008, the employee began treating with Dr. Neubauer at the Affiliated Community Medical Clinic in Willmar. On July 8, 2008, the employee was diagnosed with a left quadrant abdominal muscle strain and a lumbar muscle strain/sprain. He was told to continue physical therapy. On August 13, 2008, the employee was noted to have left lower back pain radiating into the posterior thigh and calf. An MRI was recommended.
The employee underwent an MRI scan of the low back on August 18, 2008. The scan showed congenital canal narrowing and multilevel degenerative changes and disc bulging with neural foraminal stenosis.
Following the MRI, Dr. Neubauer diagnosed the employee with radicular pain exacerbated by the employee’s congenitally narrow central canal, and myofascial pain syndrome compensatory to the disc disruption. The employee was given restrictions to avoid bending and twisting at the waist, kneeling and squatting, and driving a vehicle with a clutch. In November, 2008, the employee was noted to be improving, and a functional capacities evaluation was requested to set permanent work restrictions.
A functional assessment was performed at the Rice Rehab Center in Willmar on December 17, 2008. The employee was found to be capable of sitting from a total of one to two hours in a work day in intervals of 30 minutes duration. He could stand from three to four hours and walk from one to two hours in short distances. He could occasionally lift 8.2 pounds from chair to floor and 23.6 pounds from desk to chair. He could carry about 27 pounds occasionally and 17 pounds frequently. He was unable to crawl or kneel, and could squat, bend, stoop, crouch or balance only occasionally.
On December 18, 2008, the employee was laid off for the season. Seasonal layoff over the winter months was customary in his job with the employer.
On December 30, 2008 the employee was seen by Dr. Asmussen at the TRIA Orthopedic Clinic. Dr. Asmussen reviewed with the employee the work restrictions recommended by the functional capacities evaluation. The employee told the doctor that these seemed too excessive, and that he had been tolerating somewhat less restricted work with the employer on light duty. The employee felt he could increase his work hours to 10-12 per day, and could sit for four to six hours a day with a break every two hours. He could lift up to 30 pounds. The employee reported difficulty with operating heavy clutches, and Dr. Asmussen advised him to avoid vehicles requiring clutch work. Dr. Asmussen recommended that the employee undergo a therapy program at the Physicians’ Neck and Back Clinic.
The employee was seen at Physicians’ Neck and Back Clinic by Dr. Thibault on January 22, 2009. He reported that his low back pain had started about a week following the work accident. The back pain had persisted since then and consisted of a constant aching discomfort, sometimes accompanied by a sharp stabbing pain, increasing with prolonged sitting, bending or squatting. There was occasional numbness down the left thigh and medial left calf which at times extended into the dorsum of the left foot.
The employee participated in the therapy program under the supervision of Dr. Thibault from January 22, 2009, to some time in April, 2009.
On January 22, 2009, Dr. Thibault imposed work restrictions to avoid repetitive stooping or bending at the waist and limit lifting to 30 pounds. The employee was to alternate sitting and standing, remaining in either position continuously for no more than two hours. He was not to operate a clutch.
In the discharge report, dated April 20, 2009, Dr. Thibault noted that the employee had made excellent progress in physical rehabilitation and that the subjective pain in the employee’s back had greatly improved. However, he also noted that the employee reported a recurrence of pain in his left buttock and into the left posterior thigh a week before while operating the clutch in his car. Dr. Thibault authorized the employee to return to work without restrictions. The employee testified that Dr. Thibault had authorized the return to work with no restrictions so that the employee “could go back to work and see what I could do and couldn’t do, and then come back and see him, and then we could go to see what restrictions would be followed, as to what I would do, and he would make the restrictions from there.”
Beginning in August, 2008, the employee had been provided with vocational rehabilitation services in the form of medical management and attempted coordination of a return to work with the employer. When the employee was discharged from Dr. Thibault’s therapy program without work restrictions, the employee’s QRC noted that the employee still had concerns about his physical ability to return to his pre-injury duties, and that Dr. Thibault had indicated that the employee should return for review of his work capacities should he have difficulty doing his job once he returned to work. The employee at that point was still in seasonal layoff status. The employer and insurer agreed to permit the vocational rehabilitation file to remain open for 30 more days.
The employer did not call the employee back to work that spring, and on June 28, 2009, the employee received a termination letter. The employee testified that after he was terminated, he began seeking work. He searched for work about three to four days each week for about three or four hours per day. He estimated that he made about 20 actual job contacts prior to finding work at Super America in November, 2009.
On July 2, 2009, the employee saw Dr. Thibault in follow up. The employee reported that, while his low back pain had improved during his earlier rehabilitation program with Dr. Thibault, he had continued to have ongoing pain symptoms in his lower back and left buttock and numbness and tingling in the left thigh. Examination showed mild tenderness on palpation in the left lower paralumbar region and left buttock and over the left greater trochanteric process. No muscle spasm was present. Dr. Thibault’s impression was of residual mechanical low back pain with probable referred symptoms into the left thigh. He restricted the employee permanently from repetitive stooping and bending. He also recommended that the employee undergo a functional capacities evaluation.
On July 13, 2009, the employee’s QRC wrote to the employer and insurer asking whether the vocational rehabilitation file should be reopened. The records in evidence show no indication that further vocational rehabilitation was provided.
The employee filed a medical request seeking authorization for the functional capacity evaluation recommended by Dr. Thibault. The request was denied by Decision and Order filed on November 16, 2009. The employee then requested a formal hearing. The request for formal hearing was consolidated for consideration with the other issues determined at the hearing below.
In November 2009 the employee found a job as an assistant manager at Super America, working from 30-40 hours per week at $10.25 per hour, with occasional overtime. The employee testified that he continued to look for supplemental or higher paying work, spending time on his job search once or twice a week.
In a letter dated February 18, 2010, Dr. Thibault opined that the employee’s 2008 work injury was, and continued to be, a substantial contributing factor to his residual low back pain and left leg pain symptoms and ongoing disability. Dr. Thibault noted that although he had not yet placed any restrictions on the employee’s work activities when he last saw the employee in 2009, the employee’s reported limitations with bending and walking tolerance had prompted Dr. Thibault to recommend a functional capacity evaluation in order to objectively determine his physical capacities.
On February 17, 2010, the employee was examined by Dr. Rajang Jhanjee, an orthopedic surgeon, on behalf of the employer and insurer. Dr. Jhanjee opined that the employee’s accident had likely caused abdominal muscle strain which was temporary in nature and which had resolved no later than April 20, 2008, the date of maximum medical improvement. Dr. Jhanjee found no objective findings of any other injury or of any ongoing medical condition related to the June 12, 2008 work injury. He did not consider work restrictions necessary nor did he believe that a functional capacity evaluation was warranted.
The employee returned to the Affiliated Medical Center in February 2010 and was seen by Dr. Neubauer, his primary care physician. The employee reported he was having a lot of difficulty with a “pulling sensation” in his left thigh and was tripping over his left foot. On examination, he had positive straight leg raising on the left and a weak up going toe consistent with a foot drop. Dr. Neubauer recommended that the employee have a repeat MRI and injections.
On April 7, 2010, the employee filed a medical request seeking authorization for the MRI scan. Following the decision in that matter, the employee requested a formal hearing. This request for formal hearing was also consolidated with the other issues determined at the hearing below.
The employee filed a claim petition on March 17, 2010, requesting, among other things not here at issue, temporary partial disability compensation from and after November 9, 2009. The employer and insurer answered denying that the employee’s alleged current disability and need for medical care was related to the 2008 work injury.
An MRI of the lumbar spine was performed on August 8, 2010. It was read as showing mild facet degeneration at L5-S1; minimal annular disc bulging with subtle flattening of the anterior margin of the thecal sac at L4-5, unchanged from prior exam; mild left L4-5 neural foraminal narrowing; mild degenerative disc disease at L3-4 with mild stable left L3-4 neural foraminal narrowing, unchanged from prior exam; and minimal stable degenerative disc disease change at L2-3 with no frank neural compression.
On March 7, 2011 the employee returned to Dr. Neubauer who again recommended injections and an FCE in order to set restrictions, but noted that the employee could not squat or lift more than 40 pounds.
The employee had an FCE on September 28, 2011 at the Pipestone County Medical Center. Based on his functional performance, he was placed in the light duty category with respect to lifting. His lumbar spine showed a painful but functional range of motion with poor strength in the back extension muscles. There were lower extremity deficits in the left hip and ankle range of motion. The recommendations from the FCE were that the employee not carry more than 20 pounds or lift more than 25 pounds from floor to waist, that he not engage in crawling, stooping or bending.
A hearing was held before a compensation judge of the Office of Administrative Hearings on December 7, 2011. Following the hearing, the judge found that the employee had been temporarily partially disabled from November 3, 2009, and that the 2008 work injury was a substantial contributing factor in that disability. The judge further found that certain disputed medical charges were reasonable and necessary and were causally related to the work injury. The employee was awarded temporary partial disability compensation and reimbursement for the reasonable and necessary medical expenses. The judge denied the charges for the September 28, 2011, functional capacities evaluation, finding that evaluation was not reasonable or necessary. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases 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, “[f]act findings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Foods Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). 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.” Id.
1. Sufficiency of Findings
The appellants’ initial argument on appeal is that the compensation judge failed to make detailed findings on various issues, including the central issue whether the employee’s current disability was caused by his work injury. The appellants point out that there was no express finding on the sufficiency of the employee’s job search, and no finding setting forth the precise details of any applicable work restrictions. They contend that the level of detail provided in the judge’s findings is so minimal that a remand or reversal is required.
As this court has previously noted, a compensation judge’s findings and memorandum need not discuss every detail of the case; they need only sufficiently disclose the judge’s reasoning to provide an adequate basis for this court to review the disputed issues. See, e.g., Volness v. Cemstone, No. WC06-215 (W.C.C.A. Jan. 10, 2007).
In this case, we conclude that a sufficient basis for the compensation judge’s decision is evident in the compensation judge’s findings and order, read as a whole.
The compensation judge expressly found that the employee’s 2008 work injury was both to the abdomen and to the low back (Finding 3), and that the employee had no limitations or medical treatment due to a low back problem prior to the work injury. She further found that the employee’s continuing low back and left leg symptoms following the work injury had limited his ability to lift, sit, bend, twist, and use a clutch (Finding 8). Finally, she found that the employee has been temporarily partially disabled from November 3, 2009, through the date of hearing, and that the 2008 work injury is a substantial contributing factor to the disability.
In the judge’s memorandum, she notes that she found the employee’s testimony regarding his pain and limitations credible and that she adopted the medical causation opinion of Dr. Thibault. The memorandum also clearly indicates that the compensation judge accepted the restrictions adopted by Dr. Asmussen on December 30, 2008, which the judge considered still applicable as of the date of hearing because of evidence that there has been no substantial change in the employee’s overall condition since that date.
While the compensation judge did not make an express finding that the employee’s job search was reasonably diligent, the judge did find that the employee had made a self-directed job search after his termination by the employer which had resulted in the employee finding a full-time manager position at Super America. In any event, a job search is not a legal prerequisite to an award of temporary partial disability benefits, although it is evidence that a compensation judge may consider in determining whether an employee’s wage loss is causally related to the work injury. Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995); Hawkins v. University of Minn., No. WC07-192 (W.C.C.A. Apr. 22, 2008).
We conclude that the findings and memorandum are sufficiently informative about the judge’s findings and reasoning that no remand is necessary for clarification.
The employer and insurer next argue that substantial evidence fails to support a determination that the 2008 work injury is a substantial contributing cause of the employee’s current alleged condition. We disagree, and conclude that the record provides substantial evidence that supports the compensation judge’s determination.
There was no evidence in the record of any prior low back treatment or restrictions, and the employee testified that he had no low back problems or symptoms when he started work for the employer. He testified that he began to experience low back and left leg pain within about two weeks of the accident, that his low back pain had never resolved, and that he still has pain down his back through his hip and down his left leg to the calf and occasionally to the ankle. The employee also testified that these symptoms limited his ability to lift, sit, bend, twist, and use a clutch. He testified that he wasn’t physically able to return to his pre injury job as a truck driver because of problems with his leg. The compensation judge’s findings and memorandum indicate that she accepted the employee’s testimony as credible.
The medical records were reasonably consistent with and supportive of the employee’s testimony. Finally, the compensation judge also relied on expert medical opinion from Dr. Thibault causally linking the employee’s work injury to his low back and leg problems and associated restrictions. Based on this evidence, it was not unreasonable for the compensation judge to find that the 2008 work injury was a substantial contributing cause of the employee’s current disability.
The employer and insurer relied on the opinion of their medical expert, Dr. Jhanjee, who opined that the employee’s accident resulted solely in an abdominal muscle strain which was temporary in nature and which resolved by April 20, 2008. However, the compensation judge did not adopt Dr. Jhanjee’s opinion, relying instead on that of Dr. Thibault. It is the compensation judge’s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).
In their brief on appeal, the appellants point out various items in the evidence which they view as contrary to the employee’s credibility, or as supporting a finding that the work injury was not a substantial contributing cause of the employee’s current low back problems. These include the timing of the onset of the employee’s back and leg symptoms, the timing of the ebb and flow of these symptoms as shown in various medical records, the equivocal nature of some of the medical examination and test findings, the fact that there have been times during which no restrictions were placed on the employee’s work activities, and the existence of a few medical notations indicating that the employee at times showed excessive pain behaviors.
Much of the specific evidence to which the employer and insurer point is amenable to more than one interpretation or explanation. None of this evidence is sufficiently contradictory to the compensation judge’s finding on causation to require a reversal of that finding. It is the trier of fact’s responsibility to assess the credibility of a witness. Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989). It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).
3. Temporary Partial Disability
An employee is entitled to temporary partial disability benefits “while the employee is employed, earning less than the employee’s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee’s partially disabled condition is due to the injury.” Minn. Stat. § 176.101, subd. 2(b). Thus, to demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability. See Krotzer, 459 N.W.2d 509, 43 W.C.D. 254; Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).
The employer and insurer contend that the employee does not meet the “causally related” portion of this standard, relying first on their argument that the employee’s work injury was not a substantial contributing cause of disability or wage loss after April 2008. They further contend that the employee was ineligible for temporary partial disability compensation on the basis that he had not performed a reasonably diligent job search. We have discussed those issues above, and have affirmed the finding that the employee’s 2008 work injury was a substantial contributing cause of his medical condition and associated disability through the date of hearing.