RONALD WILLS, Employee/Appellant, v. MINNESOTA ALPHA FOUND., UNINSURED, Employer, and SPECIAL COMPENSATION FUND.

 

WORKERS' COMPENSATION COURT OF APPEALS

APRIL 17, 2000

 

HEADNOTES

 

WAGES - MULTIPLE EMPLOYMENTS.  Where the evidence submitted was not adequate to establish the amount and nature of the employee=s earnings from other employments for purposes of calculating the employee=s weekly wage, the judge did not err in excluding those earnings in determining the wage issue.

 

WAGES - BOARD & ALLOWANCES.  Substantial evidence did not support the compensation judge=s decision as to the value of the sleeping room provided to the employee by the employer, and the judge=s decision is therefore modified accordingly.

 

CAUSATION - SUBSTANTIAL EVIDENCE; CAUSATION - TEMPORARY AGGRAVATION.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s urological problems, left shoulder condition, and thoracic fracture were not related to his work injury, and that his psychological/alcohol abuse problems were aggravated by the work injury only temporarily.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee had only a 3.5% whole body impairment causally related to his work injury.

 

PRACTICE & PROCEDURE - REMAND.  Where the record did not establish that the employee attempted to introduce specific evidence now allegedly missing from the record, where the employee made no attempt, on the record, to ensure that the Amissing@ evidence was in fact admitted into evidence, and where most of the Amissing@ evidence was not relevant to the issues before the compensation judge, remand was unnecessary.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  William R. Johnson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s findings regarding average weekly wage, nature of the injury, and extent of temporary total and permanent partial disability.  We reverse the judge=s finding and order as to average weekly wage and affirm on all other issues.

 

BACKGROUND

 

The employee is a graduate of the University of Minnesota and William Mitchell College of Law.  In the fall of 1989, the employee began working for Minnesota Alpha Foundation [the employer] performing certain management duties.  His job responsibilities included collecting rents, making certain repairs, and monitoring the parking lot of a former fraternity house, which was being operated as a boarding house by the employer.  In return for his work, the employer provided the employee with a sleeping room, the use of the chapter room, and payment of $100.00 per month.

 

On March 9, 1990, the employee slipped on ice-covered stairs at the boarding house while attempting to confront someone who was illegally parking in the parking lot.  The employee was fifty years old at the time. Two days later, the employee was seen at the emergency room of the University of Minnesota Hospitals, complaining of pain in the low back without radiation down the legs or associated urinary symptoms.  X-rays taken of the lumbar spine at that time showed Amoderate degenerative changes with anterior spurring,@ and the diagnosis was a lumbar strain.  The employee continued to work for the employer until approximately June 1, 1990, when the boarding house went into foreclosure.

 

The employee returned to the emergency room of University of Minnesota Hospitals on August 1, 1990, complaining of  Acoughing up blood while drinking orange juice and gin this a.m.@

There was no mention of any other physical complaints at that time.

 

The employee treated with Dr. David Dragotis, on January 29, 1991, October 26, 1991, November 13, 1992, November 17, 1992, December 22, 1992, and January 18, 1993, without any mention of ongoing back pain.  On July 26, 1993, Dr. Dragotis wrote to the Minnesota Department of Jobs and Training, stating that, A[t]o my knowledge, [the employee] has no physical disabilities, however, his chronic alcoholism and psychological problems have precluded his ability to function in an employment situation.@

 

The employee was seen by Dr. David Plimpton on February 9, 1993, complaining of symptoms Asuggesting sleep apnea and excess alcohol use.@  Dr. Plimpton conducted a full examination of the employee on February 26, 1993, and, while noting a history of a fall on ice Awith back injury@ and Aintermittent low back pain,@ he found no tenderness of the spine on examination.  Dr. Plimpton continued to treat the employee in 1993 and repeatedly diagnosed alcohol abuse and affective disorder.

 

On July 7, 1993, the employee presented to the emergency room at North Memorial Medical Center Awith a strange history@ that included Achronic history of back pain,@ chest pains for the past several months, and Aquestionable myocardial infarction in the past.@  The diagnosis at that time was bronchitis with bronchospasm.

 

In a report dated November 10, 1993, Dr. Toni Magnuson stated that the employee had undergone a full psychiatric evaluation at the University of Minnesota in October of 1993 and that, based on the employee=s history and clinical evaluation, the employee had suffered from bipolar affective disorder and alcohol dependence since age nineteen.  On November 22, 1993, Dr. Robert Hammerstrom opined that the employee was disabled for social security purposes due to affective disorder and alcohol abuse.

 

The employee treated with a multitude of doctors, for a variety of conditions, over the three-year period following his work injury.^[1]  However, he received no treatment for back symptoms after March 11, 1990, until September 13, 1994, when he was seen by Dr. Dragotis complaining of low back pain.  There were no radicular findings on examination, and the doctor diagnosed a lumbosacral strain and prescribed Relafen.  The employee then went without low back treatment again until January 17, 1996, at which time he was treated at University Family Practice Clinic with a history of low back pain for a week and a half.  The employee denied any tingling, numbness, or loss of sensation.

 

On March 5, 1996, the employee=s then attorney, John T. Anderson, filed a claim petition, claiming an average weekly wage of $200.00 and seeking benefits for a 7% permanent partial disability for an injury to the back.  The employer was uninsured for workers= compensation purposes, and the Special Compensation Fund [SCF] assumed defense of the claim.

 

On February 7, 1996, the employee was seen by Dr. Kirkham Wood for evaluation of back pain.  X-rays at that time revealed for the first time Aan old fracture at T11.@  The employee was also noted to have multiple-level lumbar spurring.  On April 3, 1996, the employee was referred to Dr. John Seymour, a neurosurgeon, for low back pain, lower extremity numbness, and urinary incontinence.   

 

On March 14, 1997, Dr. David Olson examined the employee=s right shoulder.  The employee apparently told Dr. Olson that the shoulder had been bothering him for about a year and gave a history of injuring his left shoulder and elbow in 1990 and favoring his left shoulder thereafter.  Dr. Olson diagnosed a right rotator cuff tear.  On April 28, 1997, the employee presented to Dr. Olson for evaluation of his left shoulder.  A May 1, 1997, MRI showed a full thickness, fully retracted rotator cuff tear.  On May 27, 1997, the employee called Dr. Olson and gave a history of injury to his left shoulder on March 9, 1990, with problems thereafter.  Dr. Olson then opined that Ahis continued problems with the left shoulder and the rotator cuff tear [are] related to the injury in 1990.@ 

 

On July 18, 1997, the employee filed a pro se amended claim petition, claiming an average weekly wage of $1,070.00, an injury to the Amid and low back, shoulder, elbow, urologic and consequential,@ and seeking temporary total disability benefits and permanency benefits for Abladder, thoracic, lumbar, right shoulder, left shoulder, right knee, cardiac and edema, liver/esophagus, prostate, cervical, motor loss, polyneuropathy, psychological and damage from alcohol.@  Upon motion by the SCF, a compensation judge of the Office of Administrative Hearings dismissed the employee=s claims regarding liver, prostate, cervical, esophagus, polyneuropathy, and motor loss of the right arm, without prejudice, by order dated February 3, 1998.

 

The SCF had the employee examined by licensed psychologist Paul Reitman on January 5 and 6, 1998.  In his report, Dr. Reitman opined that the employee=s diagnoses included bipolar disorder with mania, alcohol dependence, generalized anxiety disorder, and personality disorder not otherwise specified with narcissistic, passive, aggressive and dependent features.  He further opined that it was Afeasible@ that the employee=s chronic pain from the work injury developed into a secondary depression; A[h]owever, it appears the period of time he was experiencing this type of depression was for approximately 12-18 months.@  Dr. Reitman did not think that the work injury in 1990 was a substantial contributing cause of the employee=s psychological problems at the time of his examination.

 

On January 27, 1998, the employee was examined by independent medical examiner Dr. Jack Drogt.  He reviewed numerous medical records and opined that the compression fracture of the thoracic spine and the torn rotator cuffs of the left and right shoulder were not causally related to the March 1990 injury.  The doctor further opined that the employee would have been temporarily partially disabled, for physical reasons, for a period of three months after the injury, but that the employee did not sustain any permanent injury related to the March 1990 incident.

 

The employee underwent an independent medical examination with Dr. Lyle Lundblad, D.O., on February 10, 1998.  Dr. Lundblad opined that the employee=s urinary problems were related to alcohol cystopathy, outlet obstruction, and fluid intake.

 

The matter proceeded to hearing on April 3, 1998, June 1, 1998, July 24, 1998, September 14, 1998, October 15, 1998, December 22, 1998, and July 6, 1999.  The employee represented himself at the hearing.  In a decision filed on September 8, 1999, the compensation judge made unappealed findings that the employee was an employee of the employer, that the employee sustained a low back injury arising out of and in the course of his employment on March 9, 1990, and that the Minnesota Department of Human Services was not entitled to reimbursement for medical benefits paid.  The compensation judge also found that the employee=s urological problems, compression fracture of the thoracic spine, left shoulder problem, and elbow problem did not arise out of and in the course of his employment; that the employee=s psychological/alcohol abuse problems were temporarily aggravated by the work injury; that the employee=s average weekly wage on the date of injury was $125.00,^[2] that the employee has a 3.5% whole body impairment related to the lumbar strain he sustained on the date of injury; and that the employee was entitled to temporary total disability benefits from June 1, 1990, to December 31, 1991.  The employee appeals.

 

 

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

 

Average Weekly Wage

 

The compensation judge found that the employee was paid $100.00 per month by the employer.  In addition, in calculating average weekly wage, the compensation judge added $150.00 per month for the value of the employee=s sleeping room and $250.00 per month for the value of the chapter room.^[3] 

 

The employee contends that the compensation judge erred in failing to find that he had concurrent earnings from various business ventures during the period prior to the work injury.  We are not persuaded.  The employee submitted numerous unexplained records purporting to establish income from business ventures.^[4]  The employee also submitted numerous calculations performed by Richard Poston, C.P.A., related to the employee=s average weekly wage.  However, Mr. Poston testified on July 24, 1998, that he only did mathematical calculations on figures submitted to him by the employee, based on the employee=s representations as to what those figures represented.  Without substantial evidence to verify what the numbers contained in Mr. Poston=s report represented, the compensation judge correctly found that he could not determine what if any concurrent earnings the employee had from other employment at the time of the work injury.

 

The employee also contends that the value of his sleeping room was $225.00 to $250.00 per month rather than the $150.00 per month found by the judge.  On this point, we agree.  The only testimony regarding the value of the sleeping room was that of Eric Erickson, an officer of the employer.  On direct examination at the hearing on July 6, 1999, he initially testified that the employee=s sleeping room rented for Aright around $150 a month.@  However, on cross-examination, Mr. Erickson admitted that the employee had one of two larger rooms without baths and that those rooms rented for $225.00 or $250.00.  Finally, on re-direct examination, Mr. Erickson testified that the one large bedroom with a private bath Awould be probably 250 and the other two since they didn=t have a [bathroom], but they were probably 50 percent bigger than the other rooms got 225.@  Substantial evidence, therefore, does not support the judge=s finding that the value of the employee=s sleeping room was $150.00 per month.  We therefore reverse that finding and find the value of the sleeping room was $225.00 per month.  The employee=s monthly wage was therefore $575.00, and his average weekly wage was $132.69.^[5]

 

Urological Problems

 

It is unclear from his brief what if any arguments the employee is making regarding the judge=s finding that the employee failed to prove his urological condition was causally related to the work injury.  In any event, substantial evidence, specifically the opinion of Dr. Lundblad, supports the judge=s finding.  While there are opinions to the contrary, a trier of fact=s choice between experts whose testimony conflicts is usually 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, 37 W.C.D. 364 (Minn. 1985).  The judge=s finding regarding the employee=s urological condition is affirmed.

 

Left Shoulder

 

The employee appears to contend that the medical evidence supports a finding that he did sustain a left shoulder injury on March 9, 1990, which was ultimately diagnosed as a full rotator cuff tear.  The employee specifically relies on  the emergency room records of March 11, 1990, and the records of Dr. Thomas Litman, who conducted an independent medical examination of the employee at the request of the employee=s then attorney, Daniel Berglund, on July 1, 1997.  Dr. Litman took a history of injury to the left shoulder on the date of injury with Agradually increasing problems,@ and he opined that the employee suffered a rotator cuff tear of his left shoulder on the date of injury.  He further opined that he did not find the torn rotator cuff of the right shoulder to be related to the 1990 injury or Ato be a consequent injury to the left shoulder injury.@

 

The issue on appeal, however, is not whether the evidence will support a contrary finding, but whether the compensation judge=s findings of fact are supported by substantial evidence in view of the entire record as submitted.  Minn. Stat. '176.421, subd. 1.  The compensation judge adopted the opinion of Dr. Drogt, who stated that, A[i]n my opinion, the simultaneous similar nature of the left and right shoulder rotator cuff tear, is, in fact, degenerative in nature and not causally related to the work related injury at issue.@  Again, a judge=s choice between expert opinions is generally upheld.  Nord, 360 N.W.2d 337, 37 W.C.D. 364.  The employee raises no concerns in his brief about facts assumed by Dr. Drogt.  The judge=s finding as to the employee=s left shoulder is affirmed.

 

Elbow

 

The employee indicated at oral argument that he was waiving his appeal of the judge=s finding that he did not prove an injury to the elbow.^[6]

 

Temporary Aggravation

 

At oral argument, the employee did not address the judge=s finding that his psychological/alcohol abuse problems were only temporarily aggravated by the 1990 work injury and that the temporary aggravation ended by December 31, 1991.  In his brief, he appears to contend that the judge erred in finding that the opinions of Dr. Terry Nelson and Dr. Richard Sethre support a finding of a temporary aggravation.^[7]   We agree that the reports and testimony of Drs. Nelson and Sethre, taken as a whole, do not provide substantial evidence of a temporary aggravation ending on December 31, 1991.  The judge, however, also stated that he relied on the opinions of Dr. Reitman, who clearly opined in his report and testimony that the employee=s fall in 1990 was an aggravating factor that would have exacerbated the employee=s depression for a period of twelve to eighteen months.  While the employee attacks the credibility of Dr. Reitman, assessment of a witness=s credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  We therefore affirm the judge=s finding that the employee=s psychological/alcohol abuse problems were temporarily aggravated up to December 31, 1991.^[8]

 

The compensation judge adopted the opinions of Dr. Drogt that the symptoms from the employee=s low back strain were only physically disabling for a period of several months.  The judge also found that the employee was not left with any work-related restrictions following the injury Awhich would serve as a basis for a claim for either temporary partial disability or temporary total disability after Dec. 31, 1991 . . . .@  To the extent that the employee intended to appeal from these findings, they are not addressed in his brief, and are deemed waived.  Minn. R. 9800.0900, subp. 2.

 

In his brief, the employee contends that he Apursued countless consulting jobs and projects preceding welfare in 92 . . Job searchs!@  However, the employee provided no evidence of specific efforts to find work, and he indicated in his brief that Amuch more was available but I could not anticipate the need for redundancy after cross by the Fund.@ Our review of the record establishes that there is substantial evidence to support the judge=s finding that the employee Adid not perform any good faith diligent search for work.@ 

 

Permanent Partial Disability - Thoracic Spine

 

The employee contends that he has sustained a 10.5% whole body impairment as a result of a compression fracture of the thoracic spine occurring on March 9, 1990.  The compensation judge, however, found that Athe evidence in this case is simply too inconclusive to support a finding that the employee=s present compression fracture is related to his work injury so long ago.@ 

 

The compression fracture was not diagnosed until 1996.  Dr. Drogt opined that a compression fracture of the thoracic spine Ais extremely painful and would usually result in the need for medical care.@  The employee did not treat for that condition until after 1996.  While there are opinions to the contrary, it was reasonable for the compensation judge to accept Dr. Drogt=s opinion that the employee did not fracture T-11 at the time of the work injury in March of 1990.  We therefore affirm that finding and the finding that the employee is not entitled to permanent partial disability benefits related to that fracture.

 

Lumbar Spine

 

The employee contended at oral argument that there is Aobjective clinical evidence@ that is the basis for reversal of the judge=s finding that the employee has only a 3.5% whole body impairment related to injury to the lumbar spine.  Specifically, the employee points to the January 29, 1997, MRI, which demonstrated Amulti-level degenerative disc disease with annular tears at L3-4 and L4-5 with a small right lateral disc protrusion at L4-5.@  The employee claims entitlement to 10.5% whole body impairment under Minn. R. 5223.0070, subp. 1A(3)(b).  We are not persuaded.

 

Minn. R. 5223.0070, subp 1A(3)(b), requires Achronic muscle spasm or rigidity [] substantiated by objective clinical findings and associated with demonstrable degenerative changes at multiple vertebral levels.@  Dr. Litman, who assigned the 10.5% rating and related it to the 1990 work injury, also stated that the objective clinical findings he noted on examination Amay be unrelated to the lumbar spine, and may be due to other factors, including alcohol ingestion.@  Dr. Wood also commented on the MRI findings in his office note of May 8, 1997, opining that A[w]hether what we see in the radiographs stems from his fall at work a few years ago is certainly impossible to determine.@  There is, therefore, substantial evidence to support the judge=s refusal to award benefits for a 10.5% whole body impairment related to the lumbar spine, and, while the judge=s finding of a 3.5% rating is arguably inconsistent with his finding that the employee had no work restrictions related to his work injury, the 3.5% finding was not appealed by the SCF and is therefore affirmed.

 

Affidavit Regarding Correction of Record

 

On February 25, 2000, the employee filed an AAffidavit of Ronald Wills@ and on March 28, 2000, he filed an AAffidavit of Ronald E. Wills Regarding Correction of Record.@  The employee argues that he submitted certain medical records to the compensation judge that are no longer in the file.  The employee attached the Amissing@ records for the court=s review and asks that the case be remanded to the compensation judge for reconsideration. 

 

The employee apparently contends that he attempted to introduce these records at the hearing on December 22, 1998, and that he was mistakenly told they were already in evidence.  As the employee did not specifically identify the medical records he was attempting to introduce at hearing that day, we have no way of knowing whether they are the same records he now attempts to introduce.  The employee also contends that he delivered more than 200 pages of hospital records from Abbott-Northwestern Hospital to Athe Judge or Clerk at the Office of Administrative Hearings@ on or about January 15, 1999.  There is no evidence of such a delivery anywhere in the file.  We also note that a final day of hearing subsequently took place on July 6, 1999, and that the employee made no effort at that time to ensure that the records he is now attempting to introduce were then in evidence and before the compensation judge.  Accordingly, we deny the employee=s motion and have decided this case based on the record as it is known to have existed before the compensation judge.^[9]  We find no reason to remand this case to the compensation judge.