WILLIAM J. ROGERS, Employee/Appellant, v. KELLAR EXCAVATION and MINNESOTA WORKERS' COMPENSATION ASSIGNED RISK PLAN/BERKLEY ADM'RS, Employer-Insurer.

 

WORKERS' COMPENSATION COURT OF APPEALS

NOVEMBER 27, 2000

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge's denial of the employee's claim for permanent total disability benefits where the employee continued to present himself in a negative manner to potential employers and did not fully comply with recommendations of rehabilitation and pain program professionals.

 

Affirmed.

 

Determined by: Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge: Kathleen Nicol Behounek

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge's decision denying his claim for permanent total disability benefits.  We affirm.

 

BACKGROUND

 

The employee is fifty three years old and obtained a GED in approximately 1966.  His primary employment has been truck driving and operating heavy equipment.  On April 16, 1998, the employee sustained a work-related injury to his lumbar and thoracic spine while working for Kellar Excavation [the employer] as a heavy equipment operator.  The employer accepted liability for the injury, and the employee continued to work despite symptoms in his low back, hip, neck, and thoracic spine.  An MRI performed on July 12, 1998, revealed degenerative changes from L1-2 through L5-S1, including disc herniations at L1-2 and L5-S1, and small disc herniations at T3-4 and T6-7, without evidence of significant central stenosis or cord impingement.  On August 8, 1998, the employee's doctors at Fairview Lakes Regional Health Care took him off work.  The employer and its workers' compensation insurer paid temporary total disability benefits commencing on August 10, 1998.   

 

On November 16, 1998, the employee filed a claim petition, claiming an underpayment of temporary disability benefits and seeking permanent partial disability benefits.^[1]  On January 7, 1999, the employer and insurer filed a notice of intention to discontinue benefits on April 5, 1999, based on the employee's attainment of maximum medical improvement [MMI].^[2]  When the claim petition proceeded to hearing on June 8, 1999, before a compensation judge at the Office of Administrative Hearings, issues included permanent total and permanent partial disability.  In a decision filed on July 29, 1999, the compensation judge found that the employee had sustained a 10% whole body impairment related to his lumbar spine^[3] and a 5% whole body impairment related to his thoracic spine.  The judge also found that the employee had not participated in a recommended pain clinic, that he had been released to sedentary work but had not exhausted job search activities, and that, therefore, he had not shown that he was permanently totally disabled.  No appeal was taken from this decision.

 

The employee participated in the chronic pain rehabilitation program at Abbott Northwestern Hospital, as an out-patient, from August 3, 1999, to August 19, 1999.  During the program, on August 12, 1999, the employee filed another claim petition, seeking temporary total disability benefits continuing from April 5, 1999.^[4]  On August 18, 1999, John Richardson, the employee's QRC, attended the discharge meeting at the pain clinic.  The staff reported that the employee had made "little physical progress" with the program.  The parties agreed at the meeting that a short-term plan of attempting to return the employee to productive employment would be appropriate, and a rehabilitation plan amendment was drafted, calling for sixty to ninety days of job search.  In a letter dated August 19, 1999, Dr. Matthew Monsein opined that the employee would potentially "be able to perform a light to sedentary type of job at least on a part time basis," but that "the patient continues to be mired in rather profound pain behavior."

 

The employee was examined by neurologist Dr. Thomas Jacques on November 15 and December 21, 1999, for evaluation of possible reflex sympathetic dystrophy [RSD].  Dr. Jacques opined that the employee did not meet the criteria for RSD but was suffering from chronic pain syndrome.  The doctor also noted that the employee's pain behavior did not match his examination findings, and he recommended a cervical MRI scan to rule out any component of myelopathy.^[5]

 

Mike Anderson served as the employee's placement specialist.  His notes reflect that he first provided job leads to the employee on October 27, 1999.  Less than two months later, on December 13, 1999, he recommended that rehabilitation services be discontinued.  The employee began receiving social security disability benefits in December of 1999.

 

The employee's claim petition proceeded to hearing on March 15, 2000, on the issue of whether the employee had been permanently totally disabled from and after June 9, 1999.  In findings filed on May 17, 2000, the compensation judge found that the employee was not entitled to permanent total disability benefits.  The employee appeals.

 

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 (1992).  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 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, "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.

 

DECISION

 

The employee contends that the compensation judge erred in denying his claim for permanent total disability benefits.  We are not persuaded.

 

The employee challenges the compensation judge's finding that the employee had been "non-compliant in several aspects recommended by the pain program professionals," as well as the judge's explanation, in her memorandum, that he had "refused to attend [the pain clinic] on an in-patient basis, expressed a negative attitude toward the psychological component of the program, and declined participation in the aftercare program."  The employee contends that the cited actions do not rise to the level of "noncompliance"; however, substantial evidence supports the judge's finding.

 

Dr. Monsein had recommended that the employee participate in the pain clinic on an in-patient basis, and QRC Richardson, in his report of July 14, 1999, noted that "it may be more appropriate because of the extensive driving and the client's subjective pain tolerances to have him stay at the program during the week."  The employee testified that driving "makes my legs go crazy, hurt . . . . it takes its toll."  Jane Moncharsh, who performed an independent vocational evaluation, concluded that the employee did not get as much benefit from the physical aspect of the pain clinic because "part of it would be undone from the drive."  The employee offered no explanation for why he refused to attend the pain clinic as an inpatient rather than driving round trips from Wyoming, Minnesota, to Minneapolis, five days a week, to attend as an out-patient.

 

The employee admits that he refused aftercare but contends that "there is no evidence to suggest that the decisions regarding aftercare adversely impacted overall lasting success of the program."  We note, however, that the patient/staff agreement, presented to the employee on August 3, 1999, lists ten items, one of which is "[t]o participate in the Aftercare Program following completion of the three week program, including a Final Aftercare session."  There is a statement at the end of these ten items that indicates that "[t]hese issues are critical to the success of pain management and rehabilitation."

 

The employee also admits that he expressed a negative attitude toward the psychological component of the pain clinic program and that he refused to complete an MMPI; however, he again contends that this does not constitute noncompliance, citing to various records that indicate that he was compliant in the program.  Certainly, there is evidence which would support a different finding.  However, the issue on appeal is whether the judge's findings "are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  Based on the above-mentioned evidence and the record as a whole, there is substantial evidence to support the judge's finding that the employee was noncompliant with certain aspects of the pain clinic program.^[6]

 

The employee apparently also takes exception to the judge's statement in her memorandum that some doctors have found the employee's complaints to be in excess of objective findings.  However, Dr. Jacques and independent medical examiner Dr. Nolan Segal both mentioned that the employee had complaints in excess of objective findings, and, as recently as September 28, 1999, treating doctor Daniel E. Johnson was questioning whether secondary gain was a factor in the employee's symptoms.

 

The employee further argues that the vocational records and testimony of QRC Richardson establish that the employee complied with rehabilitation efforts, including a reasonable search for work, and that he is not capable of sustained competitive employment.  We do not disagree that QRC Richardson's records support the employee's claim that he is permanently totally disabled;^[7] however, the report and testimony of vocational expert Jane Moncharsh support the judge's finding.

 

Ms. Moncharsh had originally evaluated the employee in May of 1999. She subsequently re-interviewed the employee, reviewed additional medical and rehabilitation records, and reviewed the labor market and court documents.  In her report of March 2, 2000, Ms.  Moncharsh noted that the employee "has an agenda of his own," opining that the employee had conducted a very limited job search and did not present himself in a positive way to potential employers; specifically, he emphasized his limitations and continued to use a crutch.  Ms. Moncharsh further stated, "he has been released for work which he would be able to physically perform, has the skills for and is available, but for his lack of fully participating in the programs provided to him in attempting to return to work."  At hearing, Ms. Moncharsh testified that the employee's biggest barrier to securing employment was "his preferences and those things he wants and doesn't want to do, and his presentation and emphasis on his limitations rather than his strengths and abilities."  The judge was entitled to accept Ms. Moncharsh's assessment.   Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering the opinion are not supported by the evidence).

 

We also note that rehabilitation records support Ms. Moncharsh's opinions.  Specifically, those records reflect that the employee was not interested in job searching when contacted by the QRC and did not want to consider jobs that would pay less than his weekly wage on the date of his injury.  The rehabilitation records further indicate that the employee informed potential employers of his physical restrictions in initial phone conversations with them, despite instructions by Mr. Anderson not to do so.  QRC Richardson testified that he instructed the employee to present himself in a positive light to potential employers but that the employee ignored him in that he "has his own opinions on how he should present himself."

 

In the unappealed findings and order of July 29, 1999, the compensation judge found that the employee was capable of working within restrictions and had transferrable skills that could provide him with employment within his restrictions.  In the decision now before us on appeal, the judge noted, "[t]he employee's pain behaviors and presentation were at issue at the time of the last hearing.  Both vocational experts were of the opinion that the employee's ability to find and sustain employment depended upon the employee's presenting himself in a more positive light and changing his pain behaviors."  While there is evidence which would have supported a finding of permanent total disability,^[8] we give great deference to the judge's findings.  Because substantial evidence supports the judge's conclusion that the employee has continued to present himself to potential employers in a negative manner and that he did not fully comply with recommendations of the rehabilitation or pain program professionals, we affirm the judge's findings in their entirety.