DENNIS OIHUS, Employee/Appellant, v. ROADWAY EXPRESS, SELF-INSURED/GALLAGHER BASSETT SERVS., Employer/Cross-Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 13, 2000

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - RETIREMENT.  Substantial evidence supports the compensation judge=s finding that the employee had not retired where the employee had not resigned from the employer, the employee had not submitted a resignation statement to his pension fund, the employee could earn a higher pension by continuing to work, and the employee had not received any pension funds. 

 

TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET.  Substantial evidence supports the compensation judge=s finding that the employee had not withdrawn from the labor market by moving his family out of the area where the employee was still available to work for the employer.

 

TEMPORARY TOTAL DISABILITY - JOB SEARCH.  Where the employee had not resigned from the employer, had not been terminated from his employment with the employer, had not been provided rehabilitation assistance, and was scheduled for functional capacities evaluation, the compensation judge erred by not determining whether the employee had a reasonable expectation of returning to employment with the employer and therefore would not be required to make a diligent job search in order to be eligible for temporary total disability benefits.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee had reached maximum medical improvement as of August 20, 1999.

 

Affirmed in part, reversed in part, and vacated and remanded in part.

 

Determined by: Rykken, J., Johnson, J., and Wheeler, C.J.

Compensation Judge: Danny P. Kelly

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals the compensation judge=s findings that the employee was not entitled to temporary total disability benefits since he did not perform a diligent job search and that the employee had reached maximum medical improvement.  The self-insured employer cross-appeals the compensation judge=s findings that the employee had not retired and had not withdrawn from the labor market.  We affirm in part, reverse in part, vacate in part, and remand in part.

 

BACKGROUND

 

Dennis Oihus, the employee, worked as a truck driver with American Freight and Mid-Continent from January 1969 through 1988.  The employee subsequently worked nine and a half years for Roadway Express, the self-insured employer, as a driver and on the dock unloading trucks.  On November 5, 1998, the employee sustained an admitted work-related cervical spine injury and experienced pain and loss of strength in his right arm. On that date, the employee was 55 years old and earned a stipulated weekly wage of $910.95.  The employee sought treatment at the Apple Valley Medical Clinic and the Park Nicollet Center in November 1998, and was restricted from work by his physicians.  The employee was released to work with restrictions on December 3, 1998, and was offered a light-duty job by the employer, but did not believe he could return to work then because he was on prescription medication and his employer has a Azero tolerance@ drug policy.  (T. 29, 57-58.)  On December 16, 1998, the employee was seen by Dr. James Allen, a neurologist, who diagnosed cervical radiculopathy and recommended an EMG and a cervical MRI.  Dr. Allen took the employee off work and referred the employee to Dr. Terry Hood.  The MRI revealed a C6-7 disc herniation.  Dr. Hood recommended surgery.  The employee was also examined by Dr. Dyste at the employer=s request; Dr. Dyste also recommended surgery.  On June 3, 1999, the employee underwent surgery in the nature of anterior cervical discectomy and fusion performed by Dr. Hood, with a good result.

 

On August 20, 1999, the employee was examined by Dr. Paul Wicklund at the employer=s request.  Dr. Wicklund found that the employee=s surgery had excellent results, and concluded that the employee was capable of working with restrictions of no repetitive twisting of the neck, no repeated extension of the neck and no lifting over twenty pounds overhead, and that the employee had reached maximum medical improvement from his November 5, 1998 injury.  Dr. Wicklund=s report was served on the employee on September 20, 1999.

 

The employee continued to have symptoms in his right arm, and he continued to treat with Dr. Hood.  As of July 19, 1999, Dr. Hood continued to restrict the employee from returning to work.  In October 1999, Dr. Hood extended his restriction from work, and recommended a myelogram and a CT scan.  Those tests were performed on October 21, 1999, and indicated a solid fusion and no evidence of motor radiculopathy.  The employee again was examined by Dr. Hood on December 1, 1999.  The employee stated that his pain was gone, but that he still experienced a loss of strength in his right hand and arm.  Dr. Hood released the employee to return to work as of December 2, with restrictions including avoiding repetitive lifting and no lifting over 15 pounds, pending completion of a functional capacities evaluation.  A functional capacities evaluation was scheduled for the week following the January 6, 2000, hearing below.

 

The employee has lived in the Twin Cities area for most of his life, and raised his family in New Hope, Minnesota.  In October 1998, the employee=s family moved to their second home in Aitkin, Minnesota, which they have owned since 1989, and sold their house in New Hope to their adult son.  The employee testified that he could stay with his son in New Hope to continue working for the employer.  On October 7, 1998, one month before his work-related injury, the employee submitted an application for retirement benefits to his pension fund.   The application listed a retirement date of November 30, 1998.  As of that date, the employee had twenty-eight and one-half years vested in the union.  The employee testified that if he worked 30 years that his pension benefit would have increased $700 per month over the benefit he would have received if he retired after 282 years.    In December 1998, the employee received a letter from his pension fund indicating that they had documentation for approval of his pension application, and that the employee should send a signed statement of his retirement to the pension fund in order for payment to commence.  That letter also stated that the employee=s local union advised the pension fund that the employee wanted to postpone his retirement date.  (Er. Ex. 6.)  The employee testified that he did not resign from his employment with the employer, that he ultimately decided to postpone his retirement due to the medical problems he was experiencing with his neck and arm (T. 26), and that he did not tell anyone associated with the employer that he intended to retire.  The employee did not send in the requested retirement statement to his pension fund=s office and did not receive any pension benefits.

 

On February 24, 1999, the employee filed a claim petition for temporary total disability benefits from November 5, 1998, and continuing.  The self-insured employer denied the claim, alleging defenses of voluntary retirement, removal from the labor market, lack of a diligent job search, and maximum medical improvement.  A hearing was held on January 6, 2000. The compensation judge found that the employee had not retired and that his move from the Twin Cities area was not a removal from the labor market, and awarded temporary total disability benefits for certain time periods.  He also found that the employee had not conducted a diligent job search for certain time periods, and that the employee had reached maximum medical improvement as of August 20, 1999. He also found that the employee was not entitled to temporary total disability benefits from December 4 through December 16, 1998 due to the employee=s unreasonable refusal of gainful employment offered by the employer.  The compensation judge also denied the employee=s claim for temporary total disability between August 20 and December 19, 1999 due to the employee=s failure to conduct a diligent job search even though he was capable of performing work activities.  The compensation judge also denied the employee=s claim for temporary total disability between December 19, 1999 and the date of hearing, January 6, 2000, as that period was beyond ninety days post-service of maximum medical improvement, and the employee failed to conduct a diligent job search during this period. 

 

The employee appeals the compensation judge=s findings regarding maximum medical improvement and lack of a diligent job search.  The self-insured employer cross-appeals the compensation judge=s findings regarding retirement and withdrawal from the labor market.

 

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 (1998).  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

 

Retirement

 

The self-insured employer argues that before his work injury, the employee had intended to retire on November 30, 1998, as evidenced by his pension application and the family=s move to Aitkin, Minnesota.  Therefore, the employer argues, the employee is not entitled to temporary total disability benefits after that date.  See McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 541, 36 W.C.D. 133, 138 (Minn. 1983) (AOne who has voluntarily retired and withdrawn from the labor market is not eligible for total disability benefits@).  ARetirement@ is Aa voluntary withdrawal from the labor market which the employee intends to be permanent.@  Pfeifle v. Peterson-Biddick, 56 W.C.D. 459, 465 (W.C.C.A. 1997), summarily aff=d (Minn. May 21, 1997).  AWhether an employee has removed himself from the labor market is a question of fact, the resolution of which will not be disturbed on appeal unless manifestly contrary to the evidence.@  Schroeder v. Highway Services, 403 N.W.2d 237, 238, 39 W.C.D. 723, 725 (Minn. 1987).  Several factors are relevant to this determination, including receipt of social security old age or survivor=s retirement benefits, the employee=s age at the time of the alleged retirement, the voluntary nature of the removal, and the causal link between the withdrawal and the employee=s work-related disability.  Pfeifle, 56 W.C.D. at 465.

 

The employer cites Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 69, 40 W.C.D. 1130, 1135 (Minn. 1998), where the supreme court indicates that determining whether an employee intended to retire required the trier of fact Ato decide what a person would have done if the circumstances were not as they are.@  Since the employee testified that he decided not to retire after he injured his neck, the employer argues that the employee=s intent was clear and that the employee was not entitled to temporary total disability benefits after that date.  The Grunst case, however, involved an employee who had retired, and the question was whether retirement would have happened anyway.  In this case, the employee decided not to retire, due in significant part to his receipt of information from his union pension office that his monthly retirement benefit would increase by $700.00 if he worked an additional one and one-half years.  (T. 35-36.)  The employee has not resigned from the employer and has not collected any pension funds.  The employee has expressed a willingness to return to work after undergoing a functional capacities evaluation.  The employee=s previous intent to retire is not dispositive.  Substantial evidence supports the compensation judge=s finding that the employee did not retire, and accordingly, we affirm.

 

Withdrawal from the Labor Market

 

The self-insured employer also argues that the employee withdrew from the labor market by moving to Aitkin, Minnesota.  The employee testified that he was still available to work in the Twin Cities area and for the employer since he could live at his former residence with his adult son.  This testimony is substantial evidence which supports the compensation judge=s finding that the employee had not withdrawn from the labor market simply because his family resides in another town where the employee is still available to work for the employer, and we affirm.

 

Job Search

 

The employee has not conducted any outside job search while he was not working for the employer.  No rehabilitation assistance was provided to the employee; a disability case manager monitored the employee=s medical treatment.  The compensation judge found that the employee had been released to work with restrictions as of Dr. Wicklund=s examination on August 20, 1999, and that the employee had not conducted a diligent job search, and therefore that the employee was not entitled to temporary total disability benefits from August 21, 1999, through December 19, 1999.^[1]  In general, once an employee is released to return to work, the employee must make a diligent job search to establish entitlement to temporary total disability thereafter.  A diligent job search is a search that is reasonable under the facts and circumstances of that particular case.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  Where there appears to be a reasonable possibility that an employee might return to work with his prior employer, it may not be reasonable to require an immediate search for work elsewhere.  Compare, e.g., Redgate, 421 N.W.2d at 734 n.4, 40 W.C.D. at 956 n.4; Kleszyk v. Minneapolis Star and Tribune, 45 W.C.D. 198 (W.C.C.A. 1991). 

 

In his report which was served on September 20, 1999, Dr. Wicklund released the employee for work with restrictions as of August 21, 1999.  The employer made no offer of employment based upon these restrictions.  No rehabilitation assistance was provided to the employee.  The employer=s representative, Jim Dalasso, testified that a functional capacities evaluation is required before the employee can return to work for the employer.  (T. 59.)  That evaluation was scheduled for mid-January 2000, the week after the hearing was held.  The employee has not resigned from the employer and has not been terminated from the employer=s employment.  The compensation judge made no findings on whether the employee reasonably expected to return to the employer from August 21, 1999, through December 19, 1999. 

 

Under these circumstances, we reverse the compensation judge=s denial of temporary total disability benefits from August 19 through September 20, 1999, in view of the employer=s admission at the hearing that notice of maximum medical improvement was served on September 20, 1999 and that the employee was totally disabled from employment through that date.  We vacate the denial of temporary total disability benefits from September 21, 1999, through December 19, 1999, and remand this issue to the compensation judge for consideration of whether the employee had a reasonable expectation of returning to the employer and therefore would not be required to conduct a job search to be entitled to temporary total disability benefits during this time.

 

Maximum Medical Improvement

 

The employee claims that the compensation judge=s finding that the employee had reached maximum medical improvement per Dr. Wicklund=s August 20, 1999, report served upon the employee September 20, 1999, is not supported by substantial evidence.  Maximum medical improvement is defined as "the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability."  Minn. Stat. ' 176.011, subd. 25.  Maximum medical improvement "occurs upon medical proof that the employee's condition has stabilized and will likely show little further improvement."  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions, and other relevant evidence.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).

 

Dr. Wicklund opined that the employee had reached maximum medical improvement as of August 20, 1999, and released the employee to work within specific physical work restrictions.  While the employee continued to have symptoms post-surgery and continued to treat with Dr. Hood, Dr. Hood released the employee to work with similar restrictions as of December 2, 1999.  The employee argues that the evidence does not support the compensation judge=s finding that the employee reached maximum medical improvement with the service of Dr. Wicklund=s report on September 20, 1999, in part due to Dr. Wicklund=s examination occurring only two and a half months post-surgery and due to no release to work by the employee=s treating physician at the time of Dr. Wicklund=s examination.  The employee also argues that an opinion of maximum medical improvement is premature and lacks foundation due to the later-scheduled cervical myelogram/tomogram, EMG and functional capacities examination, all recommended by Dr. Hood, the employee=s treating physician.   By the time of the hearing, Dr. Hood had not yet issued a report that the employee had reached maximum medical improvement. 

 

It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Generally, a compensation judge=s choice between expert opinions is 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, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Although Dr. Wicklund examined the employee only two and a half months post-surgery, Dr. Wicklund assumed no facts that were not in evidence.  The employee=s description of continued symptoms provided to Dr. Wicklund was consistent with the history the employee gave to his treating physician and his testimony at hearing.  Substantial evidence supports the compensation judge=s finding that the employee had reached maximum medical improvement with service of Dr. Wicklund=s August 20, 1999, report on September 20, 1999.  We therefore affirm his finding that maximum medical improvement was reached on September 20, 1999, and therefore affirm the denial of temporary total disability benefits between December 20, 1999 (ninety days post-service of maximum medical improvement) and January 6, 2000.