MARCUS D. ZIEGENBALG, Employee, v. ASSOCIATED PLUMBING & HEATING and FEDERATED INS. CO., Employer-Insurer/Appellants, and MN DEP=T OF HUMAN SERVS. and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 13, 2000

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY;.  Although the evidence was weak, the record adequately supported the compensation judge=s conclusion that the employee injured or aggravated his low back in a lifting incident at work, despite the fact that contemporaneous medical records contained no reference to any specific work incident.

CAUSATION - AGGRAVATION; CAUSATION - MEDICAL TREATMENT.  Substantial evidence, including the employee=s testimony, medical records, and some expert opinion, supported the compensation judge=s decision that a lifting incident at work was a substantial contributing cause of the employee=s low back condition and resulting disability and need for treatment.

 

NOTICE OF INJURY - SUBSTANTIAL EVIDENCE.  Substantial evidence, and reasonable inferences to be drawn therefrom, supported the compensation judge=s decision that the employer had actual notice of injury on the date of injury.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Where medical records contained recommendations for treatment that was as yet untried as of the date of hearing, and there was no real evidence that the employee had declined to undergo the recommended treatment, substantial evidence supported the compensation judge=s decision that the employee had not yet reached MMI.

 

JOB SEARCH; JOB OFFER - REFUSAL.  Where the employee testified that his back hurt too much to continue the light work provided by the employer subsequent to the employee=s surgery, where there was no evidence that the employer would have been able to continue providing light work, where the employee=s limited job search efforts were mitigated by his lack of education, funds, transportation, and telephone, and where the employee=s QRC testified that the employee had cooperated with rehabilitation and that placement efforts were limited by the employee=s inability to obtain a functional capacities evaluation, the compensation judge did not err by concluding that the employee had not rejected suitable employment or failed to look for work for purposes of entitlement to temporary total disability benefits.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  The compensation judge erred in determining that the employee was an apprentice, for purposes of receiving the maximum compensation rate pursuant to Minn. Stat. ' 176.101, subd. 6, where that issue was not raised by the parties or litigated at the hearing.

 

Affirmed in part, modified in part, and vacated in part.

 

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

Compensation Judge:  Jeanne E. Knight

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s findings as to primary liability, notice of injury, the employee=s status as an apprentice on the date of injury, maximum medical improvement, the reasonableness and necessity of treatment expenses, and the employee=s entitlement to temporary total disability benefits.  We vacate the judge=s finding and order relative to the employee=s status as an apprentice, modify the award of medical expenses to include only those expenses incurred on or after July 9, 1998, and affirm on all other issues.

 

BACKGROUND

 

The employee was hired by Associated Plumbing & Heating [the employer], in Crookston, Minnesota, in March of 1998, working first for several days as an independent contractor and then attaining employee status by about March 18, 1998.  As an employee, he was part of an on-the-job training program, working as a plumber=s assistant and supervised by a journeyman plumber.  The job was strenuous, involving lifting of heavy, bulky objects such as cast iron pipes, bathtubs, and heating and cooling equipment.

 

On June 5, 1998, the employee sought treatment for low back symptoms, indicating that he had Abeen having more problems with his back [and] thinks it is just probably just repeated strain on his back [from work] that has made it flare up.@  Val Normandin, the physician=s assistant who examined him, advised the employee to use heat and ice, exercise, and take medication.  By June 22, 1998, the employee was Amov[ing] better@ and requested a release to return to work with a fifty-pound lifting restriction, explaining that he would not be able to perform his job without a release to lift at least that much.

 

The primary dispute in this matter concerns a work injury allegedly occurring on July 9, 1998.  The employee testified that Dan Nystad, the journeyman plumber who supervised him, asked him to help him lift a heavy Aheat exchanger@ on that date.  The employee allegedly voiced concern about the lifting to Mr. Nystad, noting his back condition, but nevertheless helped him lift the heat exchanger when Mr. Nystad insisted.  The employee testified that he experienced immediate severe low back and radiating leg pain upon lifting, to the extent that he limped away afterward, with tears in his eyes, rubbing his back, and that Mr. Nystad was right behind him at the time.  The employee admitted, however, that he did not specifically tell Mr. Nystad that he had injured his back in this incident.

 

On July 10, 1998, the employee was seen again for low back spasm and pain radiating into his left leg, indicating that his symptoms had Agotten acutely worse since yesterday.@  The treatment record from that date indicates that the employee had not in the past identified any precipitating injury but that Atoday he does tell me he ha[d] a little altercation with law enforcement that involved getting wrestled to the ground and he thinks that is probably what caused the problem.@  The record also notes that the employee had been working as a plumber=s assistant and A[t]hinks that may be aggravating it@; however, there is no mention of any specific lifting incident.

 

The employee was off work on July 10, a Friday, and also July 11 and 12, 1998.  He then apparently worked two days or partial days for the employer before going off work entirely.  Medical records from July 15, 1998, indicate that the employee was complaining of diarrhea and vomiting, from an apparent flu Abug,@ and he was given an excuse to stay off work.  In the meantime, on July 13, 1998, he was evaluated for physical therapy for his low back complaints.

 

Sometime in the summer of 1998, after going off work, the employee had a conversation with Jay Nimens, one of the owners of the employer, about his back condition.  The employee testified that he suggested to Mr. Nimens that he was not going to report a work injury in order to protect the employer=s insurance rates; Mr. Nimens testified that the employee told him not to Aworry, [he was] not going to have any of this turned in on your workers= comp,@ because he Adidn=t want to burn any bridges or cause any expenses that weren=t necessary to anybody.@  Mr. Nimens also testified that the employee said that he had injured his back in previous employment.

 

Following an MRI scan^[1] and further evaluation, the employee underwent low back surgery on September 3, 1998, for L4-5 lumbar stenosis with disc bulging.  Medical reports from shortly after the surgery suggested that the employee was not expected to be able to work for six to eight weeks.  However, on about October 1, 1998, the employee worked two partial days for the employer, light duty, before quitting his employment.  The employee testified that, although he was given assistance for lifting, the work was simply too hard on his back.  Mr. Nimens testified that the employee told him that he was planning to go south, where it would be warmer, to rehabilitate his back condition, and that he would return in the spring to resume employment.

 

After leaving his employment with the employer, the employee traveled to Iowa, where he was briefly hospitalized for back pain, and eventually made his way back up to Rochester, Minnesota, where he received treatment at the Mayo Clinic beginning in late 1998.  At about the same time, on December 4, 1998, the employee provided the employer with written notice of work-related back injuries allegedly occurring on June 5, 1998, and July 9, 1998.^[2]

 

The employee lived in a rooming house in Rochester while receiving treatment at the Mayo Clinic.  Mayo physicians prescribed physical therapy, which the employee received, and eventually suggested that the employee might benefit from epidural injections and/or pain clinic treatment.  The employee also continued to take medications to treat his continuing back pain.

 

On March 19, 1999, the employee filed a claim petition, along with a request for hardship status, alleging entitlement to various benefits as a result of his two claimed low back injuries.  In their answer, the employer and insurer denied liability for the injuries and alleged that the employee was capable of working and had left light-duty work with the employer for reasons unrelated to his disability.^[3]

 

In May of 1999, the employee began receiving rehabilitation assistance through the Minnesota Department of Labor and Industry.  A placement specialist was assigned, but the employee=s QRC indicated that job search was difficult, in part because the employee had not been able to obtain a functional capacity evaluation [FCE] to establish his restrictions.

 

In June of 1999, the employee was examined, on the employer and insurer=s behalf, by Dr. David Boxall.  In a report dated June 15, 1999, Dr. Boxall indicated that, based on the medical  records, the employee did not sustain any work-related Gillette^[4] or specific injury to his back; that the employee had not been an appropriate candidate for low back surgery; that the employee needed no additional treatment; that the employee had reached maximum medical improvement [MMI] from the effects of his work injury, assuming he had a work injury, within three months of surgery; and that the employee was capable of working with restrictions on lifting, sitting, standing, and bending.  Dr. Boxall=s report was served on the employee in care of his attorney, the address listed for the employee on his claim petition.

 

In June and July of 1999, the employee=s attorney solicited opinions from two of the employee=s treating physicians, Drs. Charles Koski and Jay Smith.  Neither physician gave a definitive opinion on causation.  Dr. Koski did write, however, that, assuming the heat exchanger lifting incident had occurred as described to him, that incident would have been a significant contributing cause of the employee=s condition.  Dr. Smith reported that he found no convincing evidence of any direct relationship between the employee=s altercation with law enforcement, mentioned in the July 10, 1998, treatment record, and the employee=s back pain.

 

The matter came on for hearing before a compensation judge on July 22, 1999.  Issues included primary liability for the claimed injuries of June 5, 1998, and July 9, 1998; whether the employer had statutorily adequate notice of these injuries; the employee=s weekly wage on the dates of injury; whether the employee=s medical treatment had been reasonable and necessary; whether the employee had attained MMI; and whether the employee had refused suitable employment or failed to make a diligent job search.  Evidence included the employee=s treatment records and deposition; the deposition of the employer=s payroll supervisor; the report of Dr. Boxall; and the testimony of the employee, the employee=s QRC, Jay Nimens, and the employer=s office manager.  Following the hearing, both parties submitted written closing arguments.  In his written closing argument, the employee for the first time alleged that he was entitled, as an apprentice, to benefits at the maximum compensation rate.

 

In a decision issued on October 18, 1999, the compensation judge concluded that the employee had sustained a Gillette-type injury on June 5, 1998, but that he had not given the employer notice of that injury within the time specified by Minn. Stat. ' 176.141.  The judge also concluded that the employee had sustained a work-related low back injury on or about July 9, 1998; that the employer had actual notice of that injury; that the employee was an apprentice on the date of injury; that the employee had not reached MMI; that the treatment expenses at issue were compensable; that the employee had not refused suitable employment; and that the employee had cooperated with rehabilitation.  The judge therefore awarded the employee temporary total disability benefits from July 15, 1998, through the date of hearing, at the maximum compensation rate, and she ordered the employer and insurer to pay the employee=s medical and rehabilitation expenses.  The employer and insurer appeal.

 

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

 

Primary Liability/Causation/Notice

 

The employee testified that he experienced severe back pain, running down into his legs, when he lifted a heat exchanger on July 9, 1998, at the request of Dan Nystad, a journeyman plumber who was his supervisor.  The employee also testified that, while he did not specifically tell Mr. Nystad that he had injured his back, Mr. Nystad was right behind him when he limped away, with tears in his eyes, rubbing his back.  Medical records from the employee=s treatment immediately following the alleged injury contain no reference to any specific lifting incident at work, and both Shawn Thibert, the employer=s office manager, and Jay Nimens, an owner, testified that the employee subsequently told them that he had not injured his back at work.  Neither party called Dan Nystad, who was still employed by the employer, as a witness.  The employee=s version of the heat exchanger lifting incident, including the details regarding Mr. Nystad, was disclosed in the employee=s April 22, 1999, deposition, three months prior to hearing.

 

In her decision, the compensation judge discussed the testimony of the employee, Mr. Thibert, and Mr. Nimens, and the fact that Mr. Nystad was not called as a witness.  With respect to the issue of whether a work injury had occurred as claimed, the compensation judge apparently chose to accept the employee=s testimony.  It is true, as the employer and insurer point out, that the employee=s credibility was called into question numerous times with regard to a variety of subjects and that contemporaneous medical records contain no mention of any specific lifting incident at work.  In fact, the treatment record of July 10, 1998, indicates that the employee related his back condition initially to an altercation with police, which occurred in April or May of 1998.  However, that same treatment record also indicates that the employee=s symptoms had worsened Aacutely@ since the previous day - - July 9, 1998 - - and that the employee thought that his work as a plumber=s assistant had been aggravating his condition.  Moreover, the employer and insurer pointed out the apparent inconsistencies and credibility questions in some detail in their written post-hearing argument to the judge, and it is evident that the judge considered these issues in rendering her decision.  At any rate, credibility assessments are for the compensation judge, see Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and a judge is generally entitled to accept all or any part of a witness=s testimony, see Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992), quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980).  Therefore, while the evidence on the issue is not overwhelming, we find no justification to reverse the judge=s decision that the employee sustained a work-injury to his low back on July 9, 1998, as claimed.

 

The employer and insurer also allege that there is insufficient evidence of a causal connection between the July 9, 1998, injury and the employee=s subsequent disability.  We acknowledge that the employee offered no definitive opinion on causation.  However, the employee testified that he did not experience leg pain until the July 9, 1998, incident, and medical records support his testimony in this regard.^[5]  In addition, Dr. Koski=s July 13, 1999, report provides at least some evidence of causation.  Finally, Awhether the employment [aggravated a preexisting condition] is a question of fact, not law, and a finding of fact on this point . . . based on any medical testimony or, in the commoner afflictions . . . based on the [trier of fact=s] knowledge even without medical testimony, will not be disturbed on appeal.@  Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993), quoting 1A. Larson, The Law of Workmen=s Compensation, ' 12.25.

 

On the issue of notice, the compensation judge noted that the employee had given the employer written notice of the July 9, 1998, injury on December 4, 1998, within 180 days of the injury, as specified in Minn. Stat. ' 176.141.  The judge also determined, however, that the employer had actual notice of injury on July 9, 1998, based in part on her inference that Dan Nystad, the employee=s supervisor, saw Athe employee exhibiting signs of having injured his back . . . sufficient to constitute notice to the employer of injury.@

 

On appeal, the employer and insurer argue that the compensation judge erred by inferring, based on the employer and insurer=s failure to call Mr. Nystad as a witness, that Mr. Nystad did in fact observe the employee exhibit symptoms so as to constitute actual or inquiry notice of injury.^[6]  See, e.g., Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 40 W.C.D. 270 (Minn. 1987) (Aactual knowledge@ is knowledge of such information as would put a reasonable man on inquiry).  The judge=s inference in this regard was, however, adequately supported by case law.  See Connolly v. Nicollet Hotel, 258 Minn. 405, 104 N.W.2d 721 (1960).  Moreover, the compensation judge could easily instead have simply accepted the employee=s testimony on the issue, as she apparently did as to the occurrence of the injury itself, especially in the absence of any evidence to the contrary.  We would also note that, while the employer and insurer made arguments that they were prejudiced by the lack of notice prior to December 4, 1998, they offered no evidence as to prejudice, and the burden of proof in that regard was theirs.  See Minn. Stat. ' 176.141 (AIf the notice is given or the knowledge obtained within 180 days . . . then compensation may be allowed, unless the employer shows prejudice by failure to receive the notice).  The judge=s finding as to notice is affirmed.

 

Apprentice

 

The employee=s weekly wage was at issue at hearing.  In her decision, the compensation judge found that the employee=s weekly wage on July 9, 1998, was $390.00, and this is undisputed on appeal.  The judge also determined, however, that the employee was an apprentice on the date of injury and so was entitled to benefits at the maximum compensation rate.  See Minn. Stat. ' 176.101, subd. 6.^[7]  On appeal, the employer and insurer argue that the compensation judge erred in determining that the employee was an apprentice, in that that issue was not litigated or presented to her for decision.  In response, the employee contends that he raised the issue in his post-hearing memorandum and that the record in any event supports the judge=s decision.

 

Basic fairness requires notice and opportunity to be heard before decisions affecting benefit entitlement are made.  See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).  A dispute over weekly wage is not necessarily the equivalent of a dispute over the applicable compensation rate, and the statutory provision governing minors and apprentices has several fact-dependent requirements.  Here, the allegation that the employee was an apprentice was not made until the close of the record.  Under the circumstances, the employer and insurer had no reasonable opportunity to submit evidence to refute the employee=s claim, and the fact that the current record may support the judge=s decision is irrelevant.  Because the issue was not properly before her, we vacate the judge=s decision that the employee was an apprentice, together with her corresponding order to pay benefits at the maximum compensation rate.  Benefits should instead be paid based on the employee=s actual weekly wage as found by the judge.  If the employee is dissatisfied, he is free to file a claim petition for underpayment of benefits, and the apprentice issue can be litigated at that time.

 

MMI

 

The compensation judge concluded that the employee had not, as a factual matter, reached MMI, and that the service of Dr. Boxall=s report on the employee, in care of his attorney, was improper given that the employer and insurer learned of the employee=s address in Rochester during the employee=s April 1999 deposition.

 

MMI is defined as Athe 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, irrespective and regardless of subjective complaints of pain.@  Minn. Stat. ' 176.011, subd. 25.  Noting that there is no medical opinion indicating that the employee has not reached MMI, the employer and insurer contend that the compensation judge should have accepted Dr. Boxall=s opinion on the issue.  However, MMI is a finding of ultimate fact, and a compensation judge is not bound by medical opinion in that regard.  See Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).  As the judge noted, several treatment modalities, such as epidural injections and chronic pain treatment, have been recommended but not yet tried.  Contrary to the employer and insurer=s suggestion, there is no real evidence that the employee has failed or declined to follow up on the recommended treatment so as to compel the conclusion that he is unlikely to receive the specified additional care.  We also note that the hearing in this matter took place only ten months after the employee=s low back surgery.  In any event, given the recommended but untried treatment, substantial evidence supports the judge=s decision that the employee had not yet reached MMI as of the date of the hearing.

 

The employer and insurer also make several arguments regarding the compensation judge=s finding as to service of Dr. Boxall=s report in care of the employee=s attorney.  However, because we have affirmed the compensation judge=s decision as to MMI on a factual basis, we need not address the issue of service.

 

Treatment Expenses

 

The employer and insurer argue that the judge=s award of treatment expenses was clearly erroneous, in that there is no evidence that the lifting incident with the heat exchanger was a substantial contributing cause of the employee=s need for surgery.  Again, however, the record reasonably supports the conclusion that the employee developed radiating leg pain as a result of that incident, and Dr. Koski=s opinion again provides at least some evidence as to causation.  In fact, much of the same evidence supporting the judge=s decision that the employee=s low back condition was aggravated by the lifting incident supports her decision as to causation of the employee=s need for treatment, including surgery.  As for reasonableness and necessity, in his August 27, 1998, report, Dr. Koski indicated that the employee was a candidate for surgery and that additional conservative care, in lieu of surgery, would not be of benefit to the employee.  However, we agree with the employer and insurer that medical expenses incurred or paid prior to July 9, 1998, are not compensable, so, to the extent that the judge appeared to award such preinjury expenses, her decision is modified.

 

Temporary Total Disability

 

The compensation judge awarded the employee temporary total disability benefits from July 15, 1998, through the date of hearing.  In making this award, the compensation judge rejected the employer and insurer=s contention that the employee had refused suitable work by leaving his employment with the employer after only a couple of days in early October of 1998, following his return to work subsequent to surgery.  The judge also concluded that the employee=s job search, while extremely limited, was reasonable under the circumstances.  The employer and insurer dispute these conclusions on appeal, but we affirm.

 

The employee testified that, although the employer gave him help with his light duty work in October 1998, his back simply hurt too much for him to continue in his job.  The employee was, at the time, only a month post-surgery, and, as the compensation judge noted, there is no evidence in the record to indicate that the employer had enough light-duty work to keep the employee working for any length of time.

 

As for the employee=s job search efforts, factors undoubtedly relevant to the compensation judge=s decision include the fact that the employee has only an eighth or ninth grade education, he had no car, he had no driver=s license, he had no phone in his room at the Rochester boarding house, and he was obviously quite short of funds.  See, e.g., Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988) (a diligent job search is a search that is reasonable in light of all the facts and circumstances).  We also note that, contrary to the employer and insurer=s assertion, the employee was in fact taken Atotally off work@ by Mayo physicians for a three-month period in the winter of 1999.  Rehabilitation assistance did not commence until May of 1999, and the QRC testified that the employee was cooperative.  Job search efforts were limited primarily by the employee=s circumstances and because no FCE could be performed given the employer and insurer=s denial of liability.  In addition, the employee testified that he did look for some work, in both Iowa, when he was there, and in Rochester.  All things considered, the compensation judge could reasonably conclude that the employee=s job search efforts were adequate to establish entitlement to temporary total disability benefits, as awarded.  We therefore also affirm the judge=s decision on this issue.