EVA TREVINO, Employee, v. GRANITE FALLS MUN. HOSP. AND MANOR and MHA INS. CO./FINCOR SOLUTIONS, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
AUGUST 29, 2012
No. WC 12-5391
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB OFFER - REFUSAL; TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Substantial evidence, including medical records and expert medical opinion, supported the finding that the employee was medically unable to perform the light duty job offered by the employer on August 9, 2011, and the conclusion that her failure to accept that job was not a basis for the cessation of temporary total disability compensation pursuant to Minn. Stat. §176.101, subd. 1(i).
Determinated by: Hall, J., Stofferahn, J., and Wilson, J.
Compensation Judge: Rolf G. Hagen
Attorneys: Thomas J. Christenson, Quinlivan & Hughes, Granite Falls, MN, for the Respondent. Jennifer M. Fitzgerald, Cousineau McGuire Chartered, Minneapolis, MN, for the Appellants.
GARY M. HALL, Judge
The employer and insurer appeal from the compensation judge’s denial of their petition for discontinuance of the employee’s temporary total disability benefits and from the judge’s award of such benefits continuing from September 22, 2011. We affirm.
On about July 4, 2010, Eva Trevino [the employee] sustained an injury to her neck when she slipped and fell while pushing a steam cart up a ramp, permitting the cart to roll back over her, in the course of her work as a kitchen aide in the residential care facility of Granite Falls Municipal Hospital and Manor [the employer]. The employee was thirty-six years old on that date and was earning a weekly wage of $360.00. On the evening of the injury, the employee was seen at the hospital emergency room, and, most of her symptoms being in her left shoulder, the attending physician’s impression was shoulder contusion. The employee’s pain eventually spread into her neck, and on July 8, 2010, she saw her primary care provider, who prescribed Flexeril and Etodalac and eventually referred the employee to orthopedic surgeon Dr. Jeffrey Gerdes. Dr. Gerdes prescribed physical therapy, a TENS unit, and pain medication, but conservative care did not result in any real relief for the employee, and eventually Dr. Gerdes ordered an MRI scan of her cervical spine. The scan was conducted on July 30, 2010, and was read to reveal a disc herniation at the C5-6 level. On October 18, 2010, Dr. Gerdes performed a discectomy and fusion at that level of the employee’s spine. The employer and its insurer acknowledged liability for the injury and commenced payment of benefits. Subsequent to her initial recovery from the surgery, the employee commenced a regimen of physical therapy, and she remained in a neck brace until January of 2011.
On January 17, 2011, the employee attempted a return to work with the employer at a light duty job that had been approved by her QRC, Melissa Williams. The work was to be no more than four hours a day and was to consist of folding napkins, photocopying, setting up a snack cart, and charting intake and outflow. The plan was for the job to progress from four hours, to six hours, and eventually to eight hours a day. Should work not be available in the kitchen at any given time, the employee was to work in the activities department at the hospital, primarily visiting with residents. Almost immediately, however, the employee felt her earlier neck pain returning, and she also began to experience tingling and numbness in certain areas of her upper extremities, particularly in her fingers and thumbs. After a few days, the employee went off work again, and on February 4, 2011, Dr. Gerdes reported to the employee’s attorney that the employee might well require interventional pain management options in the future. He indicated that she was currently restricted from lifting over twenty pounds and to limiting her bending, twisting, and stooping and that, although it was still too early to determine her permanent partial disability, “at some point, she will certainly be entitled to [a permanency rating].”
By May 2, 2011, the employee was experiencing aggravation of her pain with lifting, with increased stress, and with the performance of simple tasks of daily living. Dr. Gerdes referred her to a pain specialist, Dr. James Parmele. Dr. Parmele diagnosed axial neck pain, cervical spondylosis, possible cervical discogenic pain, and chronic left C6 radiculopathy, noting that the axial neck pain might be facetogenic in origin. He recommended initial management with cervical epidural steroid injection and, if that proved unsuccessful, medial branch diagnostic blocks above the employee’s fusion, to rule out a facet source for the employee’s symptoms. He also prescribed a home TENS unit and recommended that the employee continue with her current therapy.
On May 19, 2011, the employee was examined for the employer and insurer by physiatrist Dr. Bradley Helms. In his report on June 16, 2011, Dr. Helms concluded that the employee’s care to date had been reasonable and necessary and that she was now capable of working full time. He advised work restrictions precluding excessive or prolonged extension of her upper cervical spine and prolonged extremes in flexion, rotation, or side bending. Although he found that the employee had “essentially” reached MMI with regard to her July 4, 2010, work injury, Dr. Helms nevertheless concluded that a trial of trigger point injections was “a reasonable option for [the employee’s] mild residual findings.” He rated the employee’s permanent whole-body impairment at 11.5%. His report was served on the employee on June 28, 2011.
On June 21, 2011, the employee was examined at the request of the employee’s attorney by occupational medicine specialist Dr. D. M. Van Nostrand. In his report of July 28, 2011, after a thorough review of the employee’s medical records and other personal history, Dr. Van Nostrand indicated that the employee was unable to lift even modest weights without pain and so had difficulty performing many activities of daily living. While concluding that the employee had reached MMI with regard to her work injury, Dr. Van Nostrand noted that she was currently undergoing radiofrequency nerve ablation/rhizotomy to address her pain, which, he wrote, “certainly would be an excellent course to pursue and may result in improving her life by allowing her to have fewer restrictions.” The doctor indicated that the employee could work under restrictions, including no lifting over ten pounds occasionally with her right hand, so long as she could sit or stand frequently and not be required to be in one position for more than thirty minutes. He rated the employee’s total permanent partial disability at 18% of the whole body, and he suggested that only a clerical position, such as a receptionist, would satisfy her restrictions.
On July 11, 2011, the employee was examined by pain specialist Dr. James Parmele, to whom she complained of left-sided axial neck pain and intermittent upper extremity paresthesias. Upon examination, Dr. Parmele diagnosed cervical spondylosis and possible cervical facet mediated pain, among other conditions. He proposed “interrogating” the facet joints from C2 through C5 on the left side, and restricted the employee from working through her next appointment, anticipating a follow-up with rhizotomy.
In a progress report dated July 15, 2011, QRC Williams indicated that she would be assisting the employee in returning to suitable, gainful employment with the employer once the employee’s medical restrictions were lifted.
In early August of 2011, the employee evidently had some medial branch blocks in her neck which gave some relief from her neck pain. On August 9, 2011, the employer offered her a full time light-duty job, working 7:00 a.m. to 3:00 p.m, with a proposed start date of August 22, 2011. The job duties entailed preparing cold foods, plating salads and desserts, bagging breads, cleaning produce, gathering supplies, delivering individual resident meals, ordering groceries, rotating stock, answering telephone calls, assisting in baking, sanitizing meal cards, slicing meats, and performing miscellaneous cleaning. The employee advised her QRC of the offer on August 22, 2011, and the QRC obtained a job description of the position.
The QRC noted that the employee had not yet been released to work, and she advised the employer that the position would be discussed with the treating physician. On August 26, 2011, the employee and her QRC met with Dr. Parmele’s physician’s assistant, Dan Truax, to discuss the offer, and whether the employee might be able to perform the job at least part time. Ultimately, Mr. Truax decided to keep the employee off work for the time being, while her radiofrequency and medial branch block therapy continued.
On August 29, 2011, the employer and insurer filed a notice of their intention to discontinue the employee’s temporary total disability benefits, on grounds that the employee had refused a suitable job offer, in light of Dr. Helms’ June 16, 2011 report, which had released the employee to return to full-time work with light duty restrictions. An administrative conference was held on September 22, 2011, and on September 29, 2011, the compensation judge filed a decision approving the discontinuance of the employee’s temporary total disability benefits.
On October 7, 2011, the employee filed an objection to discontinuance, alleging continuing entitlement to temporary total disability benefits from September 22, 2011, and on October 31, 2011, she underwent the nerve ablation/rhizotomy above the area of her cervical fusion that had been recommended by Dr. Parmele. On November 13, 2011, responding to a query from the employee’s attorney, Dr. Parmele indicated that he would be following up with the employee to assess the benefit of her rhizotomy and that he would be in a better position to assess her ability to return to work at that time, “in approximately three weeks.” On November 14, 2011, the employer and insurer filed a petition to discontinue the employee’s benefits, based on the employee having reached maximum medical improvement.
On November 30, 2011, the employee was examined by Dr. Parmele’s physician’s assistant Larinda Zigan. On that date, the employee was continuing to experience neck and back problems. These symptoms compelled her to seek the assistance of other family members with shopping duties, due to her inability to lift any significant weight, and often compelled her to rest even from light household chores. Ms. Zigan concluded that the increase in pain that the employee had experienced following her nerve ablation was the result of a neurotosis flare-up, which she noted was not an uncommon effect of the procedure. She prescribed Naproxin, recommended a nerve block and continued the employee off work, indicating that, if symptoms did not subside, she would recommend a CT scan to ensure that the employee’s cervical fusion was intact and healed.
The various matters came on consolidated for hearing later that same day, on November 30, 2011. The issue at the hearing was whether reasonable grounds existed to discontinue the employee’s temporary total disability benefits effective September 22, 2011, or whether the employee was entitled to continuing temporary total disability benefits from September 22, 2011, through the date of hearing. Evidence admitted at hearing included records of the employee’s medical treatment and rehabilitation assistance, and the testimony of the employee, of her two QRCs, and of the employer’s personnel officer. In his findings and order filed January 19, 2012, the compensation judge concluded that the employee was restricted from work from August 2011 through the date of the hearing, and that she had not yet reached MMI from her July 2010 work injury. The judge found that the employee’s injury continued to be a substantial contributing factor in her overall disability, and concluded that the employer and insurer were not entitled to discontinue the employee’s temporary total disability benefits as of September 22, 2011. The employee was awarded ongoing benefits from that date and continuing. 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]actfindings 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.
The employee began treating with Dr. Parmele in July, 2011. Dr. Parmele and his physician’s assistants have kept the employee completely off work since that date through the date of the hearing below, February 20, 2012. The compensation judge accepted Dr. Parmele’s opinion restricting the employee from work through the date of hearing. Accordingly, the judge found that the employee was medically unable to perform the light duty job offered by the employer on August 9, 2011, and that her failure to accept that job was not a basis for the cessation of temporary total disability compensation pursuant to Minn. Stat. §176.101, subd. 1(i).
On appeal, the employer and insurer contend that substantial evidence fails to support the compensation judge’s finding that the employee was restricted from working. They point out that pursuant to the June 16, 2011, report of Dr. Holms, the employee is capable of working within light duty restrictions, and that other physicians have also offered restrictions which would have permitted the employee to return to light duty work. They argue that Dr. Parmele’s opinion as to the employee’s restrictions should have been rejected as “unreasonable.”
In essence, the employer and insurer ask that this court adopt a different expert medical opinion than that adopted by the compensation judge. However, in cases involving a conflict of opinion between medical experts, this court generally must defer to the trier of fact’s determination of the weight and credibility to be given to the medical evidence.
The appellants contend that, in their view, “Dr. Parmele’s opinions lack the level of credibility and clarity that the reports of Dr. Gerdes, Dr. Helms and Dr. Van Nostrand have” (Appellants’ Brief at 8). Presumably the objection here is to the fact that Dr. Parmele’s opinion was provided in a series of brief answers to questions posed in a letter from the employee’s attorney, rather than in a more lengthy report format with a more detailed explanation of the doctor’s reasoning. However, an expert medical opinion does not lack foundation because the doctor fails to explain in detail the underlying reasons for the opinion. Rather, the extent of the explanation provided simply goes to the weight that may be afforded the opinion by the compensation judge. See, e.g., Ullery v. Americold Logistics, No. WC05-118 (W.C.C.A. Sept. 14, 2005). And, Dr. Parmele did provide at least a brief explanation for his opinion, noting that he considered the employee unable to perform the offered job because of “her ongoing complaints of axial neck pain.”
The employer and insurer point to the employee’s testimony showing that she was capable of performing some household tasks at home which were similar to parts of the offered job. Thus, they suggest, the employee could not reasonably be found to be unable to work. They contend, also, that the employee failed to provide Dr. Parmele and his staff with a full description of such activities, and that in the absence of that information, Dr. Parmele’s opinion about the employee’s off work status and restrictions was without sufficient foundation. We disagree. The employee’s testimony acknowledged that she could perform a few such activities, like making a phone call, washing a few dishes or pouring cereal into a bowl, on an occasional or sporadic basis, at times with assistance from family members. This is not conclusive evidence that the employee could perform a light duty job which included similar activities on a regular, ongoing and continuing basis in a food service environment.
The compensation judge here made a specific finding that the employee could perform light household chores, but that these often caused symptoms and necessitated periods of rest; and that the employee required assistance with grocery shopping because she could not lift any significant weight. The compensation judge could reasonably have concluded that the extent of the employee’s abilities in tasks of daily living was not inconsistent with Dr. Parmele’s opinion as to her ability to work or to perform the offered job during the period in question.
Finally, the appellants cite as precedential the case of Opsahl v. K&S Heating, No. WC06-134 (W.C.C.A. Aug. 15, 2006). In Opsahl, this court affirmed a compensation judge’s determination that an employee had unreasonably refused an offer of gainful employment where the employee had been released to work with restrictions but repeatedly failed to respond at all to several job offers within those restrictions because he was afraid that the actual job would exceed his restrictions. The appellants argue that the facts in Opsahl are “similar” to those in this case, and that the result in that case should be controlling.
We disagree. First, we note that the employee in Opsahl had been released to work, while in the present case, the compensation judge found that the employee was medically restricted from work during the period in question, so that the job offer here, unlike that in Opsahl, was outside the employee’s restrictions. The present facts also differ from Opsahl in that the employee did not ignore the offer, but met with her QRC and with her physicians to review and consider it, after which the QRC notified the employer that the employee’s physicians were keeping her off work. The facts in Opsahl are not similar to the present case in respect to those facts material to the decision.
Maximum Medical Improvement
In their notice of appeal, the employer and insurer also appealed from the finding that the employee had not yet reached maximum medical improvement. However, this issue is not discussed in the appellants’ brief. Pursuant to Minn.R. 9800.0900, issues raised in the notice of appeal but not addressed in the brief are deemed waived.
 That provision states, in relevant part, that:
Temporary total disability compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the com-missioner which meets the requirements of section 176.102, subdivision 4, or, if no plan has been filed, the employee refuses an offer of gainful employment that the employee can do in the employee's physical condition. Once temporary total compensation has ceased under this paragraph, it may not be recommenced.
 Dr. Holm, whose restrictions the appellants would have us adopt over those of Dr. Parmele, discusses some of these activities of daily living in his report, and thus was aware of them, yet even Dr. Holm specifically stated that the lifting and postural restrictions he would place on the employee were such that “her position would need to be a clerical position, i.e., receptionist,” while the position offered was one involving preparing salads and desserts, setting up meal trays, washing dishes, dispensing food and beverages, unpacking grocery orders, rotating stored food stocks, and answering telephone calls.
 And, as we have previously pointed out, cases which affirm a compensation judge’s factual findings as supported by substantial evidence do not necessarily support the proposition that contrary findings on similar facts must lack substantial evidence, so as to require reversal.