GORAN MITROVICH, Employee/Appellant, v. UNITED PARCEL SERV. (UPS) and LIBERTY MUT. INS. CO., Employer-Insurer, and UNITED PARCEL SERV./CONNECTICUT GEN. LIFE INS. CO. (CIGNA), Intervenor, and STATE OF MINN./ANOKA COUNTY, STATE OF MINN./HENNEPIN COUNTY and MN DEP'T OF HUMAN SERVS., Interested Parties.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 25, 2000

 

HEADNOTES

 

CREDITS & OFFSETS - CREDIT FOR OVERPAYMENT; STATUTES CONSTRUED - MINN. STAT. § 176.179.  The determination that an employee has knowingly accepted temporary total disability payments which were paid by mistake is primarily a question involving a credibility determination by the compensation judge, which will not lightly be reversed.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the IME testified that the employee was able to return to work without restrictions and did not need surgery, the compensation judge was supported by substantial evidence when he denied temporary total disability benefits after the employee stopped looking for work because his treating physician advised him he was totally unable to work and scheduled him for surgery in eight weeks.  The compensation judge found the IME=s opinion credible and rejected the opinion of the treating physician.

 

Affirmed.

 

Determined by Wheeler, C.J., Wilson, J., and Rykken, J.

Compensation Judge:  Rolf G. Hagen

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employee appeals from the compensation judge=s determination that he was not entitled to temporary total disability benefits after August 26, 1999, that temporary total disability benefits received between April 12 and April 26, 1999 were not received in good faith and that the reports of Dr. Leider and Dr. Kraft are reasonable and credible.  We affirm.

 

BACKGROUND

 

The employee, Goran Mitrovich, was first hired by the employer, UPS, as a pre-loader in September 1996.  The employee worked at night or in the early morning hours loading trucks.  The employee testified that he accepted employment with UPS because it permitted him to work generally part-time and provided him with benefits and assistance toward additional education.  While employed by UPS the employee completed his bachelor of arts degree in communication, receiving his degree at the University of Minnesota in September 1998.  At that time he was 42 years of age.  He testified that it was his intention to leave manual labor work and pursue Awhite collar@ positions.  The employee testified that he was considering obtaining a master=s degree.  He stated that he would like to return to UPS in a supervisory or human resources job, so that he could obtain help from UPS with the cost of his post-graduate education.  (T. 100-01, 104.)

 

During the pre-Christmas period each year the employee=s work responsibilities increased to include the job of driver=s helper.  In the latter position, he was required to help deliver packages and do additional lifting.  The employee testified that in December 1998 he was also required to use extra force in opening a malfunctioning door on one of the trucks in which he was a helper.  During December 1998 the employee did not recall incurring a specific injury to his right shoulder but he did recall the onset of a general achiness by December 15, 1998, followed by residual right shoulder pain.   (T. 125.)  The employee is primarily left hand dominant with some  ambidextrous skills.  (Pet. Ex. A-2, office note of 1/25/99.)  The employee testified that he reported his symptoms to his supervisor in December.  (T. 64-65.)  Following the Christmas rush, the employee was on vacation for three weeks.  During that time he continued to note pain in his right shoulder.  (T. 65-69.) 

 

Following his return to work at UPS at the end of January, the employee noted increased pain in his right shoulder after performing one shift as a pre-loader.  He consulted with Dr. Rebecca Mitchell at Now Care on January 25, 1999.  Dr. Mitchell found a moderate to mild impingement sign and diagnosed an aggravation and inflammation of the right shoulder joint.  She placed the employee on a forty-pound lifting restriction.  (Pet. Ex. A-2.)  Since the employer would only permit the employee to return to work without restrictions, he was placed on temporary total disability benefits from January 26, 1999, based on a pre-injury weekly wage of $349.21, with a compensation rate of $232.81.  On March 4, 1999, Dr. Mitchell referred the employee to Dr. Thomas K. Comfort, an orthopedic specialist.  Dr. Comfort ordered x-rays and an MRI.  He prescribed physical therapy.  The MRI was read to show a Atiny full-thickness tear through the very anterior lateral aspect of the supraspinatus tendon,@ and Atendonitis and degenerative changes of the acromio clavicular joint, with slight lateral down sloping of the acromion.@  (Pet. A-4.)  Dr. Comfort gave the employee a cortisone injection on April 26, which was very effective until the employee returned to work in late July and aggravated his shoulder.  (Pet. Ex. A-1, office notes of 4/26 - 8/9/99.)

 

On April 29, 1999, the employer filed a Notice of Intention to Discontinue Benefits effective April 26, 1999.  The matter came before a compensation judge at an administrative conference on May 3, 1999.  In an Order on Discontinuance of May 10, 1999, the compensation judge indicated that discontinuance of temporary total benefits on April 26, 1999 was approved on the basis that the employee had provided insufficient medical evidence to support a finding of a causal relationship between his right shoulder injury and his work activity.  In his order, the compensation judge also noted that the employee had apparently returned to work for another employer on April 12, 1999. 

 

Following the filing of an objection to discontinuance by the employee and a petition for recovery of overpayment of temporary total disability benefits by the employer, the matters were consolidated for hearing.  The dispute came on for hearing before a compensation judge at the Office of Administrative Hearings on September 29, 1999.  The record was kept open for the filing of additional wage records and a report from Dr. Patrick Kraft, an orthopedic surgeon.  In Findings and Order issued January 10, 2000, the compensation judge determined that the employee had sustained a work injury in the nature of a Gillette injury^[1] which culminated on December 16, 1998.  He determined that the employee was not entitled to temporary total disability benefits after April 12, 1999.  He ordered that the employee make full reimbursement to the employer and insurer for any TTD benefits received for the period April 12 through April 26, 2000, pursuant to Minn. Stat. ' 176.179.  The compensation judge also determined that he found the opinions of Dr. Lloyd Leider and Dr. Patrick Kraft to be credible and relied on each to some extent.  The employee appeals from the denial of temporary total disability benefits after August 26, 1999, the order of reimbursement for the TTD benefits paid from April 12 through April 26, 1999, and the adoption of the medical reports of Dr. Leider and Dr. Kraft.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[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 Food 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, Aunless 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.

 

DECISION

 

Temporary Total Disability Reimbursement

 

The employee commenced receiving TTD benefits on January 26, 1999.  He received these benefits until they were discontinued on April 26, 1999.  From April 12 through May 12, 1999, the employee had accepted temporary employment as a test scorer for National Computer Systems, Inc., hereinafter NCS.  This work was sedentary and did not exceed the employee=s physical restrictions.  The employee was paid $10.00 per hour and received wages in excess of his pre-injury weekly wage.  The employee testified that he Adidn=t realize he had to@ notify the employer or insurer of his work at NCS.  (T. 84-5.)  He explained that his work for NCS was during normal working hours and not when he would normally have worked at UPS.  As a result, he felt that it was not a substitute for his lost UPS earnings and did not prevent receipt of TTD.  (T. 135-6).  He testified that he did advise the employer/insurerof his employment at the May 3, 1999 administrative conference.

 

The employer and insurer=s position at trial was that the employee had not accepted the temporary total disability benefits in good faith and as a result should make full reimbursement for those payments pursuant to Minn. Stat. ' 176.179.  The compensation judge, in agreeing with the employer and insurer, made the following finding:

 

The preponderance of the evidence supports a finding that, the employee new [sic] or should have known, that he was not entitled to collect temporary total disability benefits during the period from April 12, 1999 through April 26, 1999 and therefore, employee acted in bad faith in accepting temporary total disability benefits paid, thereby entitling employer/insurer to full reimbursement/payment from employee pursuant to Minn. Stat. ' 176.179.

 

(Finding 9.)  Minn. Stat. ' 176.179 states in relevant part as follows:

 

Where the commissioner or compensation judge determines that the mistake in compensation was not received in good faith, the commissioner or compensation judge may order reimbursement of the compensation.  For purposes of this section, payment is not received in good faith if it is obtained through fraud, or if the employee knew that the compensation was paid under mistake of fact or law, and the employee has not refunded the mistake in compensation.

 

In his memorandum, the compensation judge made the following comments concerning his belief with respect to the employee=s knowledge or intention in accepting the temporary total disability benefits during the period from April 12 through April 26, 1999:

 

There is no question in this Compensation Judge=s mind that the employee knew or should have known that he could not collect both temporary total disability benefits and a paycheck with another employer at the same time.  His actions in keeping the checks and not advising employer/insurer amounts to bad faith, and this employer/insurer are [sic] entitled to full reimbursement/payment of the $465.62, together with interest.

 

(Memorandum at 10.)

 

The issue before the compensation judge was the factual question of whether the employee had either obtained the payments through fraud or knew that the compensation was paid under mistake of law or fact.  In this case, the compensation judge determined that the employee knew that the compensation was paid under mistake of law or fact.^[2]  The compensation judge had the opportunity to observe the employee=s demeanor and to take into account the employee=s level of intelligence and educational background.  The compensation judge simply did not believe the employee=s testimony that he did not realize he could receive both TTD and wages from another employer.^[3]  Matters of credibility are left to the discretion of the compensation judge and we find no basis to reverse the compensation judge=s factual determination concerning the employee=s knowledge at the time of the receipt of the TTD benefits.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  As a result, his determination is affirmed.

 

Temporary Total Disability Benefits After August 26, 1999

 

The compensation judge determined that the employee was not entitled to any TTD benefits after April 12, 1999, initially because the employee was working for NCS and later because the employee had failed to engage in a reasonable and diligent job search.  (Findings 8, 12.)

 

On appeal, the employee only contends that he should be entitled to temporary total disability benefits after August 26, 1999, because after that date he should have been excused from the requirement of a reasonably diligent job search.  The employee points out that on August 26, 1999, he saw Dr. Thomas K. Comfort, his orthopedist.  At that time Dr. Comfort recommended that the employee undergo surgery for his shoulder and scheduled the operation for October 8, 1999.  Dr. Comfort advised the employee that his condition required restrictions which prevented him from doing any work.  (Pet. Ex. A-1.)  The employee testified that he halted his job search based on Dr. Comfort=s advice.  (T. 104.)  He argues that at the time of the hearing on September 29, 1999, he was still planning to undergo the surgery recommended by Dr. Comfort.  (T. 98.)^[4]  On appeal the employee argues that it would have been futile for him to have undertaken a job search during the period from August 26, 1999 through the date of surgery, since he would have to quit any job found to have the surgery and then recuperate.  He argues that based on the advice given by Dr. Comfort, he was reasonable in not undertaking a job search during the period after August 26 and prior to the surgery.^[5]

 

The compensation judge, however, found that the employee could return to work with restrictions, based on the opinions of Dr. Kraft and Dr. Lloyd Leider.  Implicit in his findings, which accepted the opinions of Dr. Kraft and Dr. Lieder and rejected that of Dr. Comfort, was that he did not feel that surgery was appropriate at the time of the hearing.  Given these findings, the compensation judge determined that the employee was able to and should have continued to look for work after August 26, 1999.  As a result, the compensation judge did not excuse the employee from the need to engage in a reasonably diligent search for work in order to be eligible for TTD benefits.

 

The issue before us on appeal is whether there is substantial evidence to support the compensation judge=s finding that the employee was not totally disabled from work after August 26.  The opinion of Dr. Leider was that the employee may have had a temporary Gillette injury in the nature of mild tendinitis or bursitis, from which the employee had recovered by August 17, 1999.  In addition, he opined that the rotator cuff tear found on the March 11, 1999 MRI was not considered to be clinically significant and would not have required a surgical repair.  (Pet. Ex. D-3.)  He indicated that there were no objective factors which suggested that the employee had any restrictions on his ability to work.  (Id.)  In his October 19, 1999 office notes, submitted by the employee after the hearing, Dr. Patrick G. Kraft, an orthopedic surgeon, concurred that the employee had degenerative changes to his acromioclavicular joint, a very small rotator cuff tear and subacromial bursitis, but that a surgical procedure was not required.  He suggested that the employee look for less physical work.  (Pet. Ex. H.)  The compensation judge specifically stated that he did not accept the opinion of Dr. Comfort that the employee should be restricted from all work activity for an undetermined period of time or until surgery.  (Finding 20.)  When there is a conflict between medical experts it is the compensation judge=s responsibility to resolve those differences.  In this case, each of the doctors had well-founded opinions and the compensation judge=s selection of the opinions of Dr. Leider and Dr. Kraft will not be reversed by this court.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

We find that the compensation judge=s determination that the employee was not restricted from all work activity after August 26, 1999, is supported by substantial evidence in the record.  Given the fact that the employee could have worked, with restrictions, he would not have been excused from undertaking a reasonably diligent job search after August 26, 1999.  The employee=s good faith belief in Dr. Comfort=s advice did not necessarily protect the employee=s TTD claim.  By relying on Dr. Comfort and not looking for work the employee placed his entitlement to TTD benefits at risk if Dr. Comfort=s opinion was not subsequently adopted by the trier of fact.   Since the employee admits he did not make a job search, the compensation judge=s determination that the employee is not entitled to TTD benefits after August 26, 1999 is affirmed.

 

Findings of Dr. Leider and Dr. Kraft

 

The employee argues that the compensation judge=s endorsement of the reasonableness of the August 17, 1999 opinion of Dr. Leider and the October 19, 1999 notes of Dr. Kraft should not be permitted, since the opinions contain inconsistent statements.  The employee argues that Dr. Leider=s opinion should be rejected and Dr. Kraft=s opinion adopted.  (Ee=s brief at p. 8.)  The employee points out that Dr. Leider indicated that the employee did not have a clinically significant rotator cuff tear and that Dr. Kraft did find that the employee did have some physiological changes.  While the employee conceded that the adoption of both physicians= opinions did not have any effect on the employee=s request for benefits before this compensation judge, the employee was concerned that the compensation judge=s adoption of these inconsistent medical opinions would Acertainly create disputes over@ the employee=s Aentitlement to future benefits such as temporary partial and permanent partial disability.@  (Ee=s brief at p.8) .

 

With respect to Dr. Leider, the compensation judge made the following finding:

 

This Compensation Judge accepts as credible and reasonable and adopts as his own the medical opinions of Dr. Lloyd Leider, M.D., as contained in Dr. Leider=s report of August 17, 1999 (Exhibit D), as it relates to:  causation; nature and extent of injury; maximum medical improvement; and need for continuing medical treatment; more specifically: the employee did suffer a Gillette type injury to the right shoulder as a result of repetitive work activities at employer; that the injury sustained by the employee was in the nature of a rotator cuff tendinitis; that the employee does have preexisting congenital down sloping of the acromion; that employee reached maximum medical improvement no later than August 17, 1999; that employee had a normal orthopaedic examination on August 17, 1999; that employee is not in need of further medical care and treatment for the right shoulder at this time.  This Compensation Judge also believes that Dr. Leider=s opinions are based upon adequate foundation.

 

(Finding 4.)  With respect to Dr. Kraft, the compensation judge made the following finding:

 

This Compensation Judge accepts as credible and reasonable and adopts as his own the medical opinions of Dr. Patrick G. Kraft, M.D., (consulting surgeon, Exhibit H) as it relates to: the nature and extent of injury; need for surgery; and work restrictions; more specifically: that employee does have evidence of degenerative changes of the rotator cuff joint as evidenced by the MRI of March 11, 1999 and being in the nature of a small full-thickness tear of the rotator cuff and fluid in the subacromial bursa (indicating some bursitis); that surgical intervention is not warranted at this time; that employee could return to work with restrictions (on lifting as well as overhead lifting); this Compensation Judge believes that Dr. Kraft=s opinions are also based upon adequate foundation.

 

(Finding 5.)  The compensation judge made the following finding with respect to the nature of the employee=s injury:

 

The preponderance of the evidence supports a finding that as a result of the work activities of the employee for the employer during the period beginning approximately December 1, 1998 to December 16, 1998, employee sustained a Gillette type injury to his right shoulder and being in the nature of a full thickness (albeit small, five millimeter) tear of rotator cuff together with bursitis/tendinitis; that the tendinitis/bursitis did completely resolve, without residual no later than August 17, 1999 (date of IME examination of Dr. Leider); that the full thickness rotator cuff tear, while not clinically significant (being only five millimeters in length) when coupled with the employee=s preexisting and congenital down-sloping of the acromion predisposes the employee to flare-ups/aggravations with overuse/repetitive acts thereby making imposition of permanent restrictions appropriate to prevent future flare-ups/aggravations.

 

(Finding 6.)  Based on the compensation judge=s characterization of Dr. Kraft=s notes and Dr. Leider=s report, we do not find that the compensation judge has accepted mutually inconsistent material findings by his partial adoption of the reports of the two doctors.  AThe compensation judge is free to accept all or any portion of any expert opinion so long as that opinion has adequate foundation.@  Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994). What inconsistencies do exist are not important to the dispute before the compensation judge.