LANCE CLOUD, Employee, v. LEECH LAKE HOUSING AUTH., and COMMERCE & INDUS. adm'd by AIG CLAIM SERVS., Employer-Insurer/Appellants, and MN DEP'T OF LABOR AND INDUS./VRU, and INSTITUTE FOR LOW BACK & NECK CARE, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 11, 2002

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Substantial evidence supports the award of temporary total disability where the compensation judge found the employee to be credible and the employee=s testimony was substantiated by medical records and reports.

 

JOB SEARCH.  The employee had no obligation to job search where the employer had indicated its desire to bring the employee back to work and the rehabilitation plan called for a return to work with the pre-injury employer.

 

Affirmed.

 

Determined by Stofferahn, J., Rykken, J., and Pederson, J.

Compensation Judge: Peggy A. Brenden.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from a decision of the compensation judge which awarded temporary total disability benefits, found that the employee had not reached maximum medical improvement, ordered reimbursement to the medical intervenor, and awarded fees and costs.  We affirm.

 

BACKGROUND

 

Lance Cloud, the employee, worked as a carpenter for the Leech Lake Housing Authority.  On June 5, 2001, he sustained an admitted work injury while working for the employer on a house remodeling project when he picked up some boxes of tiles, together weighing about 60 pounds, and felt a pop and pain in his low back.

 

The employee first sought medical care for this injury on June 8, 2001, when he saw a nurse practitioner at the PHS Indian Hospital in Cass Lake.  The history provided was that of his work injury and his physical examination was normal.  The employee was given pain medication and muscle relaxants and was told to return to the clinic the following Monday, June 11.  The employee returned on June 11 and saw Dr. Rodolfo Trevino.  Dr. Trevino noted low back tenderness and referred the employee for physical therapy.

 

The employee had at first worked for a day or two on a light duty basis but had been unable to work since June 8 because of low back pain.  Dr. Trevino restricted the employee from work when he saw him on June 11.  the employee was seen a number of times in June and July at the PHS Indian Hospital and his back pain initially seemed to be resolving, but later he developed radiculopathy in addition to his continuing back complaints.  Physical therapy and restrictions from work were continued and a referral was made to a neurosurgeon for a consultation.

 

The employee was seen for an independent medical examination with Dr. Joseph Tambornino on July 27, 2001.  Dr. Tambornino concluded that the employee had sustained a mild soft tissue strain of the middle and lower back with subjective complaints of pain not substantiated by objective findings on examination.  He further stated that the employee was at maximum medical improvement, had no permanent partial disability, and was not in need of further treatment for the work injury.  Dr. Tambornino did not address the question of the employee=s ability to work.

 

The employer and insurer filed a notice of intention to discontinue benefits on August 7, 2001, based upon Dr. Tambornino=s report.  An order allowing the discontinuance was filed September 7 and the employee filed an objection to discontinuance.

 

The employee saw Dr. Robert Johnson, a neurosurgeon at the MeritCare Clinic in Fargo, on August 27, 2001.  Dr. Johnson reviewed an MRI taken on July 1, which was read as showing degenerative dehydration changes in the L2-3 and L4-5 discs with minimal posterior bulges at these levels.  No herniation or stenosis was seen.  Dr. Johnson took a history of constant low back pain with occasional pain and tingling in the employee=s legs.  Dr. Johnson did not provide a diagnosis.  His impression was that the employee was certainly not a candidate for back surgery but was a candidate for further conservative treatment.

 

The employee continued to treat at the PHS Indian Hospital with medication and physical therapy.  On a work status form completed on September 7, 2001, Dr. Trevino totally restricted the employee form any activity involving lifting, carrying, squatting, kneeling, stooping, pushing or pulling, but allowed frequent use of the hands.  Dr. Trevino also recommended Along term supervisory activity/duties.@  In a letter dated October 3, 2001, Dr. Trevino stated, Ain my opinion he will not be able to work in the near future perhaps six to twelve months from now secondary to his very gradual improvement.@  Dr. Trevino attributed the employee=s disability to the injury at work and to the employee=s bulging discs at L2-3, 4, which produced muscle spasm.

 

In a letter sent to the employee on October 10, 2001, the employer stated, Awe would be able to offer you normal light duty work, but in light of your limitations that are stricter than others we have worked with, we are unable to offer you employment to accommodate your specific limitations at this time . . . we are looking forward to having you back at work when you are physically able.@

 

On November 19, 2001, the employee met with Kevin McCarthy, a qualified rehabilitation consultant (QRC) at the Department of Labor and Industry=s Vocational Rehabilitation Unit (VRU) in Bemidji for a rehabilitation consultation.  Mr. McCarthy concluded the employee was eligible for rehabilitation services and proposed a rehabilitation plan which called for medical management and a return to work with the Leech Lake Housing Authority.  The employee kept in regular contact with the QRC up to the date of hearing.  The employee also filed a rehabilitation request, which was consolidated with his objection to discontinuance.

 

The employee was eventually referred to the Institute for Low Back and Neck Care where he saw Dr. Bryan Lynn on December 4, 2001.  Dr. Lynn assessed severe long-standing low back pain after a lifting injury, and multi-level lumbar disc degeneration.  Dr. Lynn recommended a bone scan or diagnostic injections.  The bone scan showed no abnormal increased activity in the lumbar spine.  A facet joint injection at the L3-4 and L4-5 levels was done on February 12, 2002.  In a letter to the QRC dated December 4, 2001, Dr. Lynn stated Aat the present time, I do believe Mr. Cloud=s severe low back pain will prevent him from working anything but the most sedentary type of activities.@

 

In a December 21, 2001 letter to QRC McCarthy, Dr. Trevino indicated that this treatment plan for the employee was to continue physical therapy and medication.  Concerning the employee=s ability to work, Dr. Trevino stated, Amy overall impression is that Lance Cloud has been unable to work due to his continued low back pain and his limited ability to do only the minimal activity type things, such as get around in the house.  At this point I feel that he should not go back to work, and will probably be out of work for the next six months.@

 

Dr. Lynn=s medical report of February 13, 2002 recommended a functional capacity evaluation to clearly define the extent of the employee=s disability and work limitation.  Dr. Lynn stated that he believed this would correspond to Aquite light work@ at the present time.  He also recommended that the employee treat with a physical medicine and rehabilitation physician.  No records from such a physician are in the record but the VRU records indicate that the employee did see a physiatrist in Bemidji on March 6, 2002 and was going to start therapy after that visit.  The VRU records also show a visit by the employee and the QRC with Dr. Mangionele, presumably the physiatrist, on March 25, 2002.  An EMG was scheduled for April 16; if that proved unremarkable a therapist would complete a physical therapy evaluation to outline the employee=s restrictions, but if the EMG were positive, Dr. Mangionele would set up a treatment plan.

 

The employee=s appeal from discontinuance and his rehabilitation request were heard together on April 4, 2002, before Compensation Judge Peggy Brenden.  Issues identified by the compensation judge for determination were (1) whether the employee=s work injury was a substantial contributing factor in lost earnings from August 8, 2001, (the date of discontinuance) to the date of hearing; (2) whether the employee conducted a reasonably diligent job search; (3) whether the employee had reached maximum medical improvement; (4) whether the employee was qualified for rehabilitation services; and (5) whether the intervenors were entitled to reimbursement.

 

Witnesses at the hearing were the employee and, on behalf of the employer and insurer, his supervisor, Greg Anderson.  Mr. Anderson testified that it was his understanding that the employee=s work restrictions permitted him to perform only Apaperwork@ and that the employer did not have that type of work available for him.

 

At hearing the compensation judge also received a March 25, 2002 addendum report from Dr. Tambornino.  Dr. Tambornino identified the additional medical records he had reviewed since his examination in July 2001.  He stated that the opinions he had expressed in his prior report were unchanged.  In his opinion, the employee had no objective findings to support that the employee Ahad a continuing back injury that would require additional treatment.@

 

The compensation judge issued her Findings and Order on May 7, 2002.  With regard to the issues identified, the compensation judge found that the work injury continued to be a causative factor in the employee=s disability; that the employee had no duty to conduct a job search since he reasonably expected to return to work with the employer; and that maximum medical improvement had not been reached.  She found that the employee was entitled to temporary total disability benefits from the date of discontinuance and continuing, but that the employee was not eligible for rehabilitation services.  The judge denied payment to the VRU but awarded payment to the Institute for Low Back and Neck Care.  The employer and insurer appeal.

 

DECISION

 

1. Temporary Total Disability

 

The compensation judge refused to allow the discontinuance of temporary total disability benefits and found that the employee=s work injury of June 5, 2001 continued to be a substantial contributing factor in his ongoing disability.  The employer and insurer have appealed, arguing that the determinations of the compensation judge are not supported by substantial evidence and are the result of legal errors.  We disagree.

 

The employee testified that he had minimal back problems before June 5, 2001, that he was injured on June 5, 2001 while lifting boxes of tiles and that he has had back pain since that time.  The compensation judge accepted the employee=s testimony and noted in her memorandum that the employee was in the best position to know his capabilities, citing Brening v. Roto-Press Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (1975).

 

The employer and insurer challenge the employee=s credibility on the basis of claimed discrepancies in the employee=s records and in his testimony.  The alleged discrepancies were the subject of extensive cross-examination.  The judge nonetheless found the employee=s testimony to be credible.  The determination of witness credibility is a matter peculiarly committed to the compensation judge and this court will not reverse unless clearly erroneous.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  Further, we note that nothing in the alleged discrepancies in the employee=s testimony directly affected the essential elements of the employee=s testimony as to how his injury occurred and his continued symptoms since that date, which were uncontradicted.

 

The employer and insurer also challenge the compensation judge=s reliance on Brening, supra, arguing that since that case was decided under liberal interpretation standards used before the enactment of Minn. Stat. ' 176.001 in 1983,^[1] its holding cannot serve as the basis for an award of benefits.  The supreme court has noted that this change in the law must be kept in mind Awhen using older cases as precedents in deciding cases arising after 1983,@ Gibberd by Gibberd v. Control Data Corp., 424 N.W.2d 776, 780, 40 W.C.D. 1040, 1048 (Minn. 1988).  However, the supreme court has rejected the employer and insurer=s argument that pre-1983 cases accordingly have little precedential value.  See Foley v. Honeywell Inc., 488 N.W.2d 268, 271-272, at note 2 (Minn. 1992).  Nothing in the Brening decision indicates that its holding was dependent on the use of a liberal interpretation standard, and this court has previously concluded that Brening remains good law.  Stack v. City of Blaine, slip op. (W.C.C.A., Mar., 31, 1992).

 

Finally, even if we were to agree with the employer and insurer that an employee=s testimony alone is insufficient to establish a claim for temporary total disability benefits, there is ample evidence beyond the employee=s testimony in this case to support the award.  Dr. Rodolfo Trevino, the employee=s primary treating doctor, stated in his December 21, 2001 report that Aat this point I feel that he should not go back to work, and will probably be out of work for the next six months.@  Dr. Bryan Lynn, an orthopedist to whom the employee was referred by Dr. Trevino, concluded in his December 4, 2001 report that the employee=s Asevere low back pain will prevent him from working anything but the most sedentary type of activities.@  Both doctors Trevino and Lynn specifically related these restrictions to the employee=s work injury.  These opinions were not contradicted by the employer and insurer=s medical examiner, Dr. Tambornino, who rendered no opinion as to employability and did not contend that the employee is capable of unrestricted work.

 

The employer and insurer also contend that reliance on the opinions of the employee=s treating doctors for an award of benefits is inappropriate because the compensation judge found that their restrictions were Aimprecise and confusing.@  While it is not clear exactly what the compensation judge meant by the use of those words, we note that the employee=s treating physicians either kept the employee off work entirely or released him to, at most, sedentary employment.  In either event, the employee was incapable of returning to his usual job.  We further note that the employer considered the employee=s restrictions clear enough that they were able to advise him that no work was available for him because of the restrictions.  Whether or not the restrictions were imprecise or even confusing, there is adequate foundation for the opinions of these doctors.  The compensation judge was entitled to make use of their opinions to the extent she found appropriate.  Proffit v. Minn. Harvest Apple Orchard, 48 W.C.D. 215 (W.C.C.A. 1992).

 

2. Job Search

 

The compensation judge also found that the employee was not precluded from the receipt of temporary total disability benefits by his failure to conduct a job search.  the compensation judge found that it was not unreasonable under the circumstances of the case that the employee did not begin a job search while it appeared that a return to work with the employer was likely.  The employer and insurer dispute this finding, arguing that once the employee was released to return to work,^[2] he was required to conduct a diligent job search pursuant to Minn. Stat. ' 176.101, subd. 1(g).

 

The determination of whether or not an employee=s job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).  An employee=s obligation to perform a job search is viewed within the context of the vocational rehabilitation provided.  Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (citation omitted), summarily aff=d (Minn. Nov. 27, 1985).

 

One of the issues at hearing was whether the employee was eligible for rehabilitation services.  The attorney for the employer and insurer argued in her opening statement that the employee was not eligible for rehabilitation services because once the employee was released with Areasonable@ restrictions the employer intended to provide the employee with work.^[3]  In addition, evidence on the question whether the employee had reasonably anticipated a return to work with the pre-injury employer included a letter from the employer Alooking forward@ to the employee returning to work, the QRC=s records from rehabilitation consultation in November 2001, and the proposed rehabilitation plan, which called for the employee to return to work with his pre-injury employer.^[4]  In light of this evidence, it was not unreasonable for the compensation judge to conclude that the employee was not precluded from the receipt of temporary total disability benefits by his failure to engage in a job search.  AWhere there appears to be a reasonable possibility that an employee will return to work with the employer, it may not be necessary that the employee engage in an immediate search for employment to be eligible for total disability benefits.@  Goss v. Ford Motor Co., 55 W.C.D. 316, 237 (W.C.C.A. 1996).

 

3. Maximum Medical Improvement

 

Finally the employer and insurer contend that the award of temporary total disability benefits should have been limited by a finding that the employee had reached maximum medical improvement.

 

Maximum medical improvement 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.@  Minn. Stat. ' 176.011, subd. 25.  Whether maximum medical improvement has been reached is a question of ultimate fact for the compensation judge.  Hammer v. Mark Hagen Plumbing & Heating Co., 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).

 

The record in this matter indicates that as of the date of hearing, the employee was scheduled for an EMG at the direction of a physical medicine specialist.  Depending on the results of that test, either further treatment would be proposed or a functional capacity evaluation would be performed to assist in returning the employee to work.  In addition, Dr. Bryan Lynn specifically concluded in his February 13, 2002 report that the employee had not yet reached maximum medical improvement.  Substantial evidence supports the determination of the compensation judge that the employee has not reached maximum medical improvement.^[5]

 

4. Reimbursement to Institute for Low Back and Neck Care

 

The employer and insurer have appealed the compensation judge=s award of reimbursement to the Institute for Low Back and Neck Care, arguing that the treatment was not reasonable or necessary, that the treatment was not causally related to the employee=s work injury, and that the compensation judge failed to provide a detailed explanation or rationale for her decision on this issue.

 

Their argument is based in large part on the opinion of Dr. Tambornino, who reported no objective findings in his examination.  The appellants contend, in essence, that absent objective findings there is no ongoing causal nexus between the employee=s work injury and any further medical treatment.  The compensation judge, however, specifically rejected the opinion of Dr. Tambornino, and the evidence supporting her conclusion that the employee=s work injury continued to be a causative factor in his disability had been reviewed above.  Other than Dr. Tambornino=s opinion that no further treatment is needed, there is no evidence that the treatment provided by Dr. Lynn was duplicative or unnecessary.

 

As to the judge=s failure to explain the specific basis of her findings, we have previously held that a compensation judge is not required to discuss every piece of evidence introduced at the hearing.  Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000).  Medical evidence was at the heart of this case and it is clear from her findings and memorandum that the compensation judge was well aware of the evidence presented.