ANDREW ZILISCH, Employee/Appellant, v. SPRING AIR MATTRESS CO. and LIBERTY MUT. INS. CO., Employer-Insurer, and MN DEP=T OF LABOR & INDUS., STEMBER CHIROPRACTIC, and MEDICA/HEALTHCARE RECOVERIES, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 11, 2000

 

HEADNOTES

 

PERMANENT PARTIAL DISABILITY - OBJECTIVE FINDINGS.  Although decreased Apassive@ range of motion is identified as an objective clinical finding in the applicable rule in the schedules, where the treating doctor=s findings as to cervical range of motion were to an important extent defined by the employee=s subjective pain responses, the compensation judge=s denial of the employee=s claim for permanency benefits on grounds that the doctor=s opinion was unsupported by Aany real objective findings@ was not clearly erroneous and unsupported by substantial evidence, where the judge=s decision was supported by other expert medical opinion.

 

TEMPORARY BENEFITS - FULLY RECOVERED.  Where the judge appeared to imply that the employee was no longer disabled at the time of the employer=s job offer, and where the totality of the medical evidence supported this inference and the judge had made an express finding that the employee=s subjective complaints were not credible, the compensation judge=s denial of all benefits subsequent to the job offer was not clearly erroneous and unsupported by substantial evidence, pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).

 

WAGES - MULTIPLE EMPLOYMENTS.  Where there was uncertainty as to the date on which the employee ceased working seriously at certain caretaking work that he had been doing in exchange for free us of a music studio, and where the value of the free rent was not documented except by the transcript of testimony, the compensation judge=s apparent finding that the employee had not proven entitlement to inclusion of the value of the free rent in his weekly wage was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge:  William R. Johnson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's determination as to weekly wage and from his denial of permanent partial disability, temporary partial disability, temporary total disability, retraining, and chiropractic benefits.  We affirm..

 

BACKGROUND

 

On January 5, 1997, Andrew Zilisch experienced a sharp stabbing pain on the right side of his chest in the course of his employment as a truck driver for Spring Air Mattress Co., for whom he had worked for about ten months.  The following day, Mr. Zilisch [the employee] sought treatment with chiropractor Dr. Martin Caron, who diagnosed Aacute moderate post traumatic thoracic segmental dysfunction associated with vertebral motor instability, myospasm and thoracic subluxation@ and ordered x-rays.  The x-rays revealed mild to moderate spondylosis at T4-5 with a decreased disc space height at T4-5 and T5-6, and Dr. Caron took the employee off work for two or three weeks. The employee was thirty-three years old at the time, and, by stipulation of the parties, was earning a minimum weekly wage of $623.00.^[1]  The employer and insurer initially admitted liability for a work-related injury on January 5, 1997,^[2] and commenced payment of benefits.  The employee made a brief attempt to return to work near the end of January but was physically unable to continue.  Up until about this time, the employee had been performing certain caretaker tasks, such as emptying trash cans, vacuuming floors, mopping rest rooms, and sweeping the lobby, at a music studio rental facility named My Apple Studios, operated by Mr. Scott Johnson.  In exchange for his caretaker work, the employee had been given use of one of the music studios rent-free.  About the time of the injury, this arrangement ended, due to personal conflicts according to Mr. Johnson, due to physical disability according to the employee.

 

On about March 21, 1997, the employee was examined by orthopedic surgeon Dr. Claire McCarthy, on referral from the employer and insurer=s case manager, nurse Michael Saxton.  Dr. McCarthy diagnosed Acostochondritis on the right side, some neck and thoracic muscle strain, right biceps tendinitis and a left gastric muscle tightness@ and prescribed the medication Daypro.  Four days later, the employee was examined for headaches by internal medical specialist Dr. Christine Crader, who encouraged him to continue on that medication.  On about March 31, 1997, the employer=s general manager, Gary Norine, the employee=s supervisor, contacted the employee and offered him a light-duty, full-time job answering telephones at the employer=s Roseville terminal, at an hourly wage of $10.00, or about $400.00 a week.  The employee did not immediately accept the offer, evidently contending at the time that the one-hour-plus drive from where he lived to the Roseville terminal would aggravate his injured back, that the Daypro medication he was taking rendered him too groggy to make the drive safely, and that he needed to check with his doctors.  The following day the employee left on a trip to California.  On April 4, 1997, the employer and insurer filed a Notice of Intention to Discontinue [NOID] the employee=s temporary total disability benefits as of April 1, 1997, on grounds that the employee had refused a suitable light-duty job.  The employee received service of that NOID in the mail upon his return to Minnesota on April 9, 1997.  By an Order on Discontinuance filed May 6, 1997, Compensation Judge Samuel Crecelius determined that there were reasonable grounds for the discontinuance.

 

Subsequent to termination of his benefits, the employee moved to Bemidji, Minnesota, where he was apparently permitted to live rent-free with a friend and where he eventually got jobs first with the Bemidji Pioneer newspaper and subsequently with Kenny=s Amoco service station.^[3]  Eventually the employee held jobs concurrently at the newspaper, the service station, and the Paul Bunyan Sub Shop in Bemidji.

 

On March 31, 1998, the employee was examined by chiropractor Dr. Larry Stember.  Dr. Stember=s report included findings as to cervical flexion with pain response, cervical rotation with pain response, biceps strength, triceps and brachioradialis reflexes, and upper back and neck muscle spasms.  On June 8, 1998, Dr. Stember completed an R-33 Functional Capacities Evaluation, indicating in part that the employee was limited to only occasional performance of essentially any back-intensive movement, that he could lift or carry up to fifty pounds only occasionally and never more than that, that he could do no repetitive grasping or fine manipulating with his hands, and that he could not use his head or neck in a static position or frequently flex or rotate them.

 

On that same date, June 8, 1998, the employee filed a Claim Petition, alleging entitlement to temporary total disability benefits continuing from April 2, 1997, unspecified temporary partial disability benefits, compensation for a permanent partial disability to at least 3% of the employee=s whole body, payment of certain chiropractic bills, a change of treating chiropractor, a rehabilitation consultation to explore retraining and other rehabilitation measures, together with interest and penalties - - all consequent to a work-related injury to his back, neck, and arms on January 5, 1997.  On June 19, 1998, the employee filed also a Rehabilitation Request, seeking rehabilitation services and exploration of retraining possibilities.  On June 22, 1998, the employee underwent a rehabilitation consultation with QRC Rosalee Forbes, who concluded that the employee was eligible for rehabilitation services.  On June 23, 1998, the employer and insurer filed their Answer to the employee=s claim petition, admitting a work injury on the date alleged but denying liability for the benefits claimed for reasons including that the employee had withdrawn from the labor market, had unreasonably refused a light duty job, and had failed to conduct a reasonably diligent search for work.  On July 7, 1998, the employer and insurer disagreed also with the employee=s request for rehabilitation services and retraining, and on July 22, 1998, they filed another NOID, indicating again that temporary total disability benefits were terminated April 1, 1997, on grounds that the employee had refused a suitable light duty job with the employer.

 

On August 20, 1998, the employee was evaluated for the employer and insurer by orthopedist Dr. Paul Yellin.  Dr. Yellin diagnosed the employee=s condition as a cervicothoracic strain with a good prognosis, concluding that the employee had reached maximum medical improvement [MMI] from the effects of any January 5, 1997, work injury, with no permanent partial or residual temporary disability.  Dr. Yellin concluded also that the employee=s chiropractic Atreatments for up to 90 days post injury would be considered appropriate.@  It was also Dr. Yellin=s opinion that the employee Awas not temporarily or totally disabled from returning to work from April 2, 1997, through the present and continuing@ and that there were no objective findings on examination to substantiate any need for restrictions or further medical or chiropractic care.

 

On about September 22, 1998, QRC John Witzke replaced Ms. Forbes as the employee=s QRC, and on about October 29, 1998, QRC L. James Jackson replaced Mr. Witzke.  On November 12, 1998, the employee underwent additional x-rays of his cervical spine, which were read on November 23, 1998, by chiropractor Dr. Scott Murray, to reveal in part post-traumatic cervical hypolordosis, post-traumatic ligamentous insult involving the C3-C4 vertebral motion unit, and A[s]ignificantly restricted cervical range of motion.@  These range of motion findings were essentially confirmed on November 17, 1998, when Dr. Stember conducted a Acomputerized inclinometry@ of the employee=s cervical spine, which he read to reveal in part a 64% deficit in motion on right lateral flexion and a 33% deficit on left lateral flexion.

 

On about March 16, 1999, QRC Jackson executed a Retraining Plan under which the employee would be retrained as an elementary school teacher with emphasis on special education, and on April 26, 1999, the employee filed a Rehabilitation Request seeking approval of that plan.  On May 11, 1999, the employee underwent an MRI scan of his cervical spine that was read to reveal no abnormalities.  On June 11, 1999, the employee=s June 8, 1998, claim petition and his May 10, 1999, retraining plan were consolidated for hearing, and on July 8, 1999, those consolidated issues were in turn consolidated with the Rehabilitation Requests that had been filed February 4, 1999, and April 26, 1999.

 

On June 14, 1999, the employee underwent, at his attorney=s request, an examination by Dr. Seth Rosenbaum, M.D.  In the course of his examination, Dr. Rosenbaum performed various range-of-motion tests, the results of which he reported as points at which the employee complained of pain.  It was Dr. Rosenbaum=s opinion that the employee was disabled as a result of his January 5, 1997, work injury, that he was not yet at MMI, that, except for certain hand restrictions, the physical restrictions that had been issued him were appropriate, and that he was subject to a 7% whole-body impairment as a result of his injury, pursuant to Minn. R. 5223.0370, subp. 3C(1).  Another computerized inclinometry conducted by Dr. Stember on July 20, 1999, was read by that doctor to reveal in part now only a 20% deficit in range of motion on the right but a 44% deficit on left lateral flexion.

 

On July 26, 1999, the employee underwent a vocational assessment by certified rehabilitation counselor and job placement specialist Jan Lowe at the request of the employer and insurer.  Ms. Lowe concluded in part, and eventually confirmed in testimony, that retraining as an elementary-level special education teacher was neither required nor appropriate for the employee.  That opinion was based on findings that the employee was already able to return to work without any loss of earning capacity in the Twin Cities labor market, that he had never demonstrated by past actions any sincere interest in working with disabled people, and that he lacked the professional attitude, commitment, and experience with children to be retrained as an elementary teacher.

 

The consolidated matter came on for hearing on August 20, 1999.  Issues at hearing included the following: (1) whether the employee sustained a work-related injury to his cervical and thoracic back on January 5, 1997; (2) whether the employee sustained any permanent partial disability as a result of any claimed or admitted injuries; (3) whether the employee was temporarily totally disabled from April 2 to April 28, 1997; (4) whether the employee was temporarily partially disabled continuing from April 29, 1997; (5) whether certain medical and chiropractic expenses were reasonable and necessary in treatment of any work injury or injuries; and (6) whether the employee should be retrained as an elementary school teacher.  By Findings and Order filed October 19, 1999, the compensation judge concluded, in reliance on the opinion of Dr. Yellin, that, although the employee did sustain a work-related injury on January 5, 1997, that injury was only a temporary one that had fully resolved within ninety days post injury, leaving the employee with no permanent partial disability and no permanent restrictions.  The judge concluded that the employee was therefore not entitled to any of the benefits claimed relative to the injury.  In the context of his decision, the judge also concluded that the employee had refused an offer of suitable gainful employment, implicitly that issued by the employer on about March 31, 1997.  The judge found also that the employee had not been concurrently employed as a caretaker for Mr. Scott Johnson at the time of his work injury.  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

 

Permanent Partial Disability

 

The compensation judge found that the employee did sustain a work-related injury on January 5, 1997, as alleged but that that injury was not one resulting in any permanent partial disability but only a Amild strain/sprain@ that had resolved within ninety days after the injury.  The judge drew this conclusion in reliance on the opinion of Dr. Yellin and in express rejection of the opinion of Dr. Rosenbaum, which the judge found in Finding 5 to be unsupported by any truly objective findings.  The employee contends that this conclusion of the judge is clearly erroneous legally, in that its rejection of Dr. Rosenbaum=s opinion is based on a characterization of reduced range of motion as a subjective rather than objective criterion.  The employee argues that Minn. R. 5223.0370, subp. 4C, expressly references range of motion as an objective criterion for determining permanency, that Dr. Stember measured the employee=s range of motion by computerized inclinometry, and that the judge=s viewing the employee=s range of motion findings as only a subjective criterion effectively precluded payment of benefits that were due.  He argues therefore that, instead of crediting Dr. Yellin=s opinion, the judge should have credited Dr. Rosenbaum=s opinion, which he claims more properly and accurately applied the rule.  We are not persuaded.

 

We would note initially that Dr. Rosenbaum=s rating was made under Minn. R. 5223.0370, subpart 3C, not subpart 4C.  The rule cited by the employee does identify decreased range of motion as well as muscle tightness as Aobjective clinical findings,@ but only where they are Ainvoluntary muscle tightness@ and Adecreased passive range of motion@ (emphasis added).  The employee recommends reliance on Dr. Rosenbaum=s opinion.  Dr. Rosenbaum=s findings on cervical range of motion read as follows:

 

Cervical spine range of motion; forward flexion of 50 degrees caused central posterior neck pain at the cervical thoracic junction, extension of 50 degrees cause central upper thoracic pain, lateral flexion of 40 degrees to the right caused crepitus not audible to the examiner, 30 degrees to the right caused left upper trapezius discomfort, rotation of 65 degrees to the left caused no symptoms, 65 degrees to the right caused crepitus not audible to the examiner.

 

Clearly, Dr. Rosenbaum=s findings are to an important extent defined by the employee=s pain responses.  Pain responses are subjective rather than objective indexes of condition, to a material extent voluntary and active rather than involuntary and passive.  In light of the apparently subjective basis for Dr. Rosenbaum=s opinion, we conclude that the judge=s denial of permanent partial disability benefits was not legally erroneous for characterizing Dr. Rosenbaum=s opinion as being unsupported by Aany real objective findings.@  Particularly in that the judge=s denial was also made in reliance on the expert medical opinion of Dr. Yellin, and in that Dr. Yellin=s opinion was not based on any false premises, we affirm.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (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 his opinion are not supported by the evidence).  See also Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Temporary Total Disability and Other Benefits

 

The employee contends that the compensation judge=s denial of temporary total disability benefits beginning April 2, 1997, on grounds that the employee refused the employer=s March 31, 1997, offer of work, was improper on three grounds:  (a) the judge=s conclusion that the employee did not require medication was unsupported by the evidence; (b) the employee did not affirmatively refuse the job offer at issue; and (c) current law, contrary to the judge=s conclusion, still requires a job offer under Minn. Stat. ' 176.101, subd. 1, to be economically suitable.  We conclude that the implications of the judge=s decision with regard to the first argument are dispositive of the other two, as well as of the temporary partial disability, retraining, and chiropractic issues raised by the employee on appeal

 

The compensation judge concluded that the employee did not need to be taking the medication that was making him drowsy and so diminishing the appropriateness of the job that was offered to him by the employer.  The employee argues that his pain compelled his use of the medication at issue and that, in fact, that medication was actually prescribed by a doctor who was treating the employee at the employer=s own request, Dr. McCarthy.  He argues also that Athe Compensation Judge adopted Dr. Yellin=s opinion that [the employee] was disabled for 90 days from the January 5, 1997 date of injury, which would be approximately April 7, 1997.@  Since the job offer in question was issued a week prior to that date, he contends, the judge=s conclusion that the prescribed medication was unnecessary is not supported by the evidence.  We are unpersuaded.

 

Initially, we would note that the ninety-day period referenced by Dr. Yellin pertained to chiropractic care, not to total or even partial disability.  Moreover, this period of appropriate chiropractic care appears to have been only very generally established, in that the doctor was only conceding treatment to be appropriate Aup to@ ninety days post injury and in that, in a different finding pertaining specifically to disability and containing a more specific date, the doctor specifically concluded that the employee Awas not temporarily or totally disabled from returning to work from April 2, 1997, through the present and continuing.@  That Dr. Yellin=s opinion may have permitted a conclusion that the employee was disabled until a date postdating the job offer by just one day is not, in our opinion, dispositive.  See Johnson v. L. S. Black Constr. Co., slip op. (W.C.C.A. Aug. 18, 1994) (a compensation judge is free to accept a portion of an expert's opinion, yet reject other portions of that expert's opinions) (citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980)).  Nor is it dispositive, in light of the general thrust of Dr. Yellin=s opinion, that a different doctor, even a doctor recommended by the employer, found the employee sufficiently disabled to warrant medication at the time of the job offer.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (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 his opinion are not supported by the evidence); see also Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974) (although unopposed expert medical testimony cannot be disregarded, such testimony is not necessarily conclusive upon the trier of fact).

 

Perhaps as essential as the medical evidence in this case is the credibility of the employee=s own subjective physical complaints, which the compensation judge expressly found to be not credible.  The judge was within the clear parameters of his discretion in so finding.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact) (citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978)).  The compensation judge also concluded properly in Finding 9 that the employee had Avery little in the way of objecti[ve] findings that would justify the imposition of restrictions beyond an initial period of healing.@  He went on in that same finding to state, ADr. Yellin suggests that 90 days of treatment was about appropriate and the Compensation Judge believes that about the same period of restrictions would have been appropriate.@  In these circumstances, given the totality of the medical evidence and the judge=s conclusion that the employee was not credible, we cannot conclude that it was unreasonable for the judge to determine that the employee was not sufficiently disabled at the time of the job offer to require medication.  Under Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), an employee must demonstrate some disability related to his work injury in order to demonstrate entitlement to benefits.  Because the judge appears to us to be suggesting that the employee was no longer materially disabled at all at the time of the job offer at issue, we see no need to address the employee=s arguments that he did not affirmatively refuse the job offer and that the offered job was not economically suitable.  Nor will we address the employee=s arguments on the retraining and chiropractic benefits also here at issue, which also evidently post-date the job offer.

 

Weekly Wage

 

Minn. Stat. ' 176.011, subd. 3, provides, AWhere board or allowances other than tips and gratuities are made to an employee in addition to wages as a part of the wage contract they are deemed a part of earnings and computed at their value to the employee.@  At Finding 14, the compensation judge implicitly concluded that, at the time of his work injury, the employee was not concurrently Aemployed@ by Mr. Scott Johnson as a caretaker in exchange for rent-free use of a music studio, such that the value of that use might be construed as part of his weekly wage.^[4]  This finding of the judge was based in part on his conclusion that A[t]he testimony of Mr. Scott Johnson indicates that by January and February of 1997 . . . [the employee] simply refused to undertake his caretaker duties@ (emphasis added) and on Mr. Johnson=s testimony that Ain January and February [the employee] just used the rehearsal space, and pretty much did nothing to compensate me for the use of the space.@  In his brief, the employee contends that his failure to perform his custodial duties for Mr. Johnson subsequent to his work injury was directly attributable to the fact that Ahe was in too much pain to perform his caretaking duties,@ consequent to his work injury.  We conclude that, even if there had once been a qualifying contract for hire between Mr. Johnson and the employee, substantial evidence supports the judge=s apparent finding that the employee did not prove that he was so employed at the time of his work injury.

 

The transcript of the hearing indicates that there was substantial testimony not only as to the employee=s reasons for ceasing performance of his custodial tasks, but also as to the nature of the employee=s rent-free use of the music studio at issue - - i.e., whether that use might constitute the sort of Alodging@ that may be compensable under the statute.  However, the date on which the employee ceased to perform his duties - - i.e., whether he was still employed at those duties on January 5, 1997 - - remains nebulous, nor is there any hard documentation of the rental value of the studio at issue.  Mr. Johnson testified to his impression that the employee began to cease performance of his duties not as a result of any physical problems, as the employee argued, but as a result of certain personal conflicts in his relationship with Mr. Johnson.  It is clear from his decision that the compensation judge credited the testimony of Mr. Johnson and not that of the employee.  There is no definitive evidence as to whether this falling out over personal conflicts began to occur before or after the employee=s work injury.  Assessment of a witness's credibility is the unique function of the trier of fact.  See Brennan, 425 N.W.2d at 839-40, 41 W.C.D. at 82.  Because, in light of this evidence, the employee does not appear to us to have proved his entitlement to compensation for any Aearnings@ from Mr. Johnson at the time of his work injury with the employer, and because the language of the judge=s findings implies that same assessment, we conclude that the compensation judge=s apparent denial of compensation for such earnings was not unreasonable.  Therefore we affirm that decision by the judge.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.