MARTHA LUAL, Employee/Appellant, v. QUALITY PORK PROCESSORS and CHARTIS INS., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
JANUARY 20, 2012
CAUSATION - TEMPORARY INJURY; TERMINATION OF EMPLOYMENT - MISCONDUCT; JOB SEARCH - COOPERATION. Substantial evidence, including expert opinion, supported the compensation judge’s conclusion that the employee continued to suffer from the effects of her injury through the hearing date, and the record as a whole supported the judge’s decision that the employee had been terminated for poor performance, as opposed to misconduct, and that the employee’s job search was reasonably diligent under the circumstances.
Determined by: Wilson, J. Milun, C.J., Stofferahn, J.
Compensation Judge: Penny Johnson
Attorneys: Linda Schoep, Schoep & McCashin, Alexandria, MN, for the Respondent. Jay T. Hartman and Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge’s decision denying their request to discontinue benefits, arguing that the judge erred in concluding that the employee had not fully recovered from her injury, had not been terminated from her job for misconduct, and had not failed to cooperate with rehabilitation or to conduct a diligent job search. We affirm.
The employee was born in Sudan. On arriving in the United States, she lived for several years in Nebraska before moving to Austin, Minnesota, in 2007 or 2008. English is not her native language, but she can read and converse in English to some extent.
The employee began employment on the production line of Quality Pork Processors [the employer] in 2008, working full time with some overtime. On December 17, 2009, she sustained a work-related low back injury when she was briefly pinned against her work table by a forklift. Following this incident, the employee was seen by the nurse in the employer’s onsite medical department, where she was given ice and medication. She finished her shift but informed the employer the next day that she was unable to work due to low back pain.
Over the next two months or so, the employee reported to the company nurse periodically before her shift for treatment of low back symptoms, and she was eventually assigned to light-duty work. In mid-February, the employee asked to see a doctor, indicating that her symptoms were not improving, and the nurse made an appointment with Dr. Barry Larson, a doctor in the employer’s managed care plan. The employee was ultimately unable to attend this appointment due to a personal medical issue, which also caused her to be off work for two weeks.
The employee was finally examined by Dr. Larson on March 24, 2010. Dr. Larson prescribed medication and physical therapy and restricted the employee to sedentary work. According to physical therapy records, many treatment modalities had to be discontinued because of the employee’s pain complaints. In about mid-May 2010, the employee was informed that her care would be transferred to Dr. Michael Toth because Dr. Larson was moving out of town.
The employee was terminated from her job effective June 2, 2010, when a hog carcass contaminated with fecal matter got past her work station to the cutting floor, a problem for which the employee had been disciplined before. The circumstances of this last incident are disputed. The employee testified that she had received permission from a supervisor to leave her station to see the nurse for back pain. She further testified that she returned to her post about 30 minutes later to find that no one had taken her place on the line while she was gone. In rebuttal, the employer offered evidence indicating that the employee had neither sought nor obtained permission to leave her station, and there is also no record of the employee having seen the nurse at that time. The employer gave the employee a written warning for that conduct, and when asked to sign the warning document, the employee refused. She was then terminated for that refusal, her failure to prevent a contaminated hog from reaching the cutting floor for a second time, and several other past disciplinary incidents. No grievance was filed on the employee’s behalf following her termination. She subsequently applied for and received unemployment compensation.
Shortly after being discharged from her job, the employee consulted a physician at the Mayo Clinic for treatment of her back pain. The employee’s neurological exam was essentially normal, and the diagnosis was chronic back pain. In August of 2010, the employee was seen for the first time by Dr. Toth. At that time, the employee complained of pain and numbness in her arms as well as her legs and low back. The employee’s medications were changed and Dr. Toth issued new work restrictions. About two weeks later, the employee underwent a surgical evaluation by Dr. Manual Pinto. Dr. Pinto ultimately concluded that the employee was not a surgical candidate and suggested that she seek treatment for her pain from Dr. Frank Wei.
Also in August of 2010, the employer and insurer had the employee placed under surveillance. The employee was recorded carrying items to her car, grocery shopping, driving from Austin to Des Moines, Iowa, and lifting and carrying her young children.
On September 10, 2010, the employee was examined for the employer and insurer by Dr. Paul Dworak. In his subsequent report, Dr. Dworak concluded that the employee’s December 2009 work incident had caused a sprain/strain that had resolved completely, with no residual effects or need for treatment.
The employee underwent a lumbar MRI in December of 2010. According to the radiologist’s report, the scan disclosed facet arthropathy at L4-5, greater on the right than the left.
In late March 2011, the employee began treating with Dr. Wei, who ordered more physical therapy and continued the employee’s restrictions. The employee reported some improvement from the physical therapy but continued to complain of pain while lifting or bending. In June of 2011, the employee indicated that her back was better, but she reported having continued buttock and thigh pain. Dr. Wei noted that the employee was then about six months pregnant, which he felt was aggravating the employee’s work injury. He continued the employee’s work restrictions, advised the employee to exercise and undergo one therapy session a month, and instructed her to return to see him after the birth of her child.
At the request of the employee’s attorney, Dr. Wei reviewed the surveillance recording. It did not change his opinion about the employee’s condition.
The matter came on for hearing before a compensation judge for determination of the employee’s entitlement to continuing workers’ compensation benefits. The employer and its insurer contended that the employee’s work injury had fully resolved, in accordance with the opinion of Dr. Dworak, and also that the employee had been terminated for misconduct and had failed to conduct a reasonably diligent job search. Evidence included the employee’s medical and rehabilitation records, the report of Dr. Dworak, and the surveillance recording. Witnesses included the employee, who was assisted by an interpreter, and two witnesses for the employer and insurer: Carole Bower, manager of the employer’s occupational nursing department, and Dale Wicks, from the employer’s human resources department.
In a decision issued on August 12, 2011, a compensation judge concluded that the employee continued to suffer from the effects of the injury, that she had not been terminated for misconduct, and that she had made a reasonably diligent job search and cooperated with rehabilitation services. The judge accordingly ordered the employer and insurer to pay temporary total disability benefits from the date of the employee’s termination through the date of hearing, as well as expenses for treatment rendered by Dr. Wei. 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 (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. Credibility - Ongoing Injury.
On appeal, the employer and insurer maintain that the judge’s decision is manifestly contrary to the evidence, contending that medical records establish that the employee’s injury was temporary and had long since resolved. Most of the employer and insurer’s argument to this effect is based on the position that the employee was simply not a credible witness as to any of the disputed facts. In support of this argument, the employer and insurer point out that virtually every doctor who examined the employee found evidence of symptom magnification or otherwise nonanatomic findings. We concede that the employee’s medical records contain numerous references to give-way weakness, nonorganic signs, nonataomic findings, and voluntary guarding. However, the compensation judge clearly took these references into account before nevertheless concluding that the employee had not fully recovered from the effects of her injury, writing in her memorandum as follows:
The employer and insurer raise legitimate questions in this case concerning whether or not the employee was being truthful to the employer, the medical providers, and the court concerning her symptoms and the extent of any disability related to the work injury. Multiple medical providers found discrepancies in their examinations that could suggest exaggeration or even fabrication of reported back problems. . . . The doctors were naturally a little suspicious concerning whether or not she was really in as much pain as she professed. A soft tissue injury such as the lumbar strain/sprain that was diagnosed in this case can be difficult to objectively document. The employee did not exhibit consistent signs of a radicular syndrome from damage to a lumbar disc. She had only intermittent symptoms into the leg. The employee’s lumbar pain syndrome or strain/sprain is more difficult to objectively document as compared to lumbar radicular pain, and the doctors must rely on the patient’s stated symptoms to some extent to determine appropriate treatment and work ability.
Despite some discrepancies noted in examination findings, there was general agreement among the medical providers in this case that the employee sustained a sprain/strain injury. The disagreement concerned the extent or duration of her injury. Surveillance showed her engaging in her ordinary life activities, including doing some brief lifting, transfer, and carrying food items for a short distance, and also briefly lifting her three-year-old daughter in or out of a van, and on one occasion carrying her a short distance. There was some evidence certain of these activities were inconsistent with the employee’s statements at her deposition; however, there were so many translation problems with the interpreter at the deposition that the parties ceased using the services of the retained interpreter before the deposition was completed. . . . I am reluctant to believe the employee gave very inconsistent answers in her deposition as compared to the hearing in this case based on a deposition fraught with translation difficulties. The employee’s English skills were developed enough for her to discern translation errors. I did not see anything in the surveillance DVD that caused me to believe the employee was misrepresenting her physical abilities or symptoms to the doctors or to the court. I believe she has a tendency to overstate them somewhat, but there are variations between individuals in pain perception. I do not conclude the employee was lying to her doctors regarding the low back and leg symptoms she was having, though she likely rated her pain higher than the average patient would.
Considering all of the evidence, I conclude the employee has continuing low back and intermittent leg symptoms that she has had since the work injury. She is entitled to temporary total benefits as claimed.
Contrary to the employer and insurer’s contention, we find no grounds to substitute our view of the employee’s credibility for that of the compensation judge. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Especially in light of her thorough explanation of her rationale, we affirm the judge’s decision on this issue.
The employer and insurer also contend that the employee is not entitled to ongoing temporary total disability benefits because she was terminated from her job for misconduct. This argument also lacks merit. The compensation judge accepted the employee’s testimony that she left the line due to pain from her work injury. This, again, was a credibility determination we have no basis to overturn, and we would also note in this regard that the compensation judge did not accept all of the employee’s testimony as to the events on the day in question. At any rate, even accepting the employer and insurer’s version of the incident, the compensation judge could reasonably conclude that the employee was discharged for poor performance, as opposed to misconduct. The judge’s decision on this issue is therefore affirmed.
3. Job Search
The employer and insurer also contend that the employee was not eligible for temporary total disability benefits following her termination because she failed to make a diligent search for other work. See Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). We reject this argument as well.
The compensation judge explained her view of the evidence on this issue as follows:
12. Job Search, cooperation with rehabilitation plan. The employee has not worked since her employment was terminated by the employer in June 2010. A rehabilitation consultation was completed on June 18, 2010, less than a week after the employment termination. A rehabilitation plan was developed and implemented that called for medical management services and assistance in returning to suitable employment when appropriate. The anticipated costs of the plan included $3,000 in job placement services; however, job placement services were not provided. The reason for the lack of actual job placement services was not provided in the record. Perhaps the rehabilitation firm did not wish to incur placement service costs without any assurance of payment by the insurer (who denied liability for rehabilitation services). The actual services provided were medical management services, and the employee attempted to find work on her own. She did not provide written logs to the QRC, but she apparently provided some sort of job search documentation to either the Mn. Department of Human Services (which was paying benefits) or to the Mn. Department of Employment and Economic Development (which was paying unemployment benefits). The employee solicited job applications from friends and submitted them to the friends’ employers, and she submitted applications through the state Job Force Center and through a program that provides assistance to immigrants, and she applied at Wal-Mart. Considering the employee’s limited English writing skills, her residence in a rural community, and the lack of job search assistance as a part of the rehabilitation plan, she made a diligent search for employment. There was no indication that she failed to make a good faith effort to participate in the rehabilitation plan. The rehabilitation plan should have been more focused on obtaining employment. Nonetheless, the employee fully participated in the rehabilitation plan, and diligently searched for work considering the minimal assistance provided to her.
Whether a job search is reasonably diligent under the circumstances is a question of fact. See id. Again, the compensation judge thoroughly and reasonably explained her decision, and the fact that another factfinder might have reached a different conclusion is not determinative. Moreover, as the compensation judge suggested, when an employee has rehabilitation assistance, entitlement to wage loss benefits depends more on cooperation with rehabilitation than the employee’s job search per se. See, e.g., Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989). There is no evidence that the employee failed to cooperate with her QRC. We therefore affirm the judge’s decision on this issue as well.
 It was after this scan that Dr. Pinto concluded that the employee was not a surgical candidate and suggested that she see Dr. Wei.
 Minn. Stat. § 176.101, subd. 1(e)(1), does not apply because the employee had not received temporary total disability benefits prior to her termination. This court applies the standard set forth in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (Minn. 1973), an unemployment case, for purposes of considering misconduct.
 We would also observe in passing that the employer did not challenge the employee’s claims for unemployment compensation.