BERNADINE DENUCCI, Employee, v. NATIONAL STEEL PELLET, SELF-INSURED/GALLAGHER BASSETT SERVS., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 28, 2002

 

HEADNOTES

 

JOB OFFER - SUBSTANTIAL EVIDENCE.  Where substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee still had work-related restrictions which prevented her from returning to her pre-injury position, the compensation judge did not err by finding that the employee had reasonably refused job offers to return to her pre-injury position without restrictions.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Where the employee=s treating physician had recommended referral for surgical evaluation, substantial evidence supports the compensation judge=s finding that the employee had not reached maximum medical improvement. 

 

Affirmed.

 

Determined by Rykken, J., Johnson, C.J., Stofferahn, J.

Compensation Judge:  Peggy A. Brenden.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s findings that the employee has not yet reached maximum medical improvement from her work related injury on June 28, 1997, that the employee=s neck and shoulder condition still require her to observe work restrictions, and that the employee reasonably refused the job offers made by the employer in April and June, 2001, and from the award of temporary total disability benefits from and after July 11, 2001.  We affirm.

 

BACKGROUND

 

Ms. Bernadine DeNucci, the employee, commenced working for National Steel Pellet, self-insured employer, in 1990, working in various positions, including shoveling rock, carpentry, janitorial services, and production truck driver.  On January 11, 1997, while working as a production truck driver, the employee sustained an admitted injury to her cervical spine and right arm.  She was 48 years old at the time of her injury, and earned a weekly wage of $893.55.  On that date, as she ran between a delivery van and her production truck, she attempted to climb the ladder of the truck and slipped and fell, hurting her neck and right shoulder.  She returned to her regular production truck driving position after this incident, but claims that her pains and symptoms have never dissipated since her injury.  Following the employee=s injury, the employer paid temporary total and temporary partial disability benefits for various periods of time.^[1]

 

Since December 19, 1992, the employee has received chiropractic treatment from Dr. Quirk for various work and non work-related injuries or conditions.^[2]  Following her January 11, 1997, injury, the employee initially sought medical treatment with Dr. Greene at the Mesaba Clinic, who diagnosed a right shoulder strain and prescribed pain medication and physical therapy. Thereafter the employee underwent chiropractic treatment from Dr. Michael Quirk, D.C.  Since that injury, the employee has sustained flare ups in her neck and right shoulder, on June 28, 1997, August 4, 1999, and November 15,  2000, injuries which the compensation judge found to be temporary in nature and manifestations of her original January 11, 1997 work injury.

 

Following her last flare up of her neck and right shoulder symptoms, on November 15, 2000, which occurred when the employee lifted heavy chains at work, the employee was issued additional restrictions by Dr. Quirk, including no lifting over 20 pounds, no excessive bending, stooping, twisting or working in awkward positions, no heavy pushing or pulling, no overhead work, and no prolonged shoveling, sweeping, mopping or other repetitive activities.  Her work duties were modified, and she was assigned light duty work at various temporary positions within the company.  She performed janitorial work and general labor on a light duty basis, but experienced increasing pain in her neck and right arm, causing her to be taken off work entirely by Dr. Quirk in mid-December, 2000. After one week off work, the employee returned to work to a lighter duty job, including answering telephones, entering emergency numbers on telephones, filing, and other office work.  The employee was restricted from work for various additional days in December 2000 and January 2001.

 

On March 19, 2001, the employee was examined by Dr. Loren Vorlicky, at the request of the employer.  Dr. Vorlicky diagnosed the employee with chronic neck pain due to degenerative disk disease at multiple levels in her cervical spine, and concluded that the employee=s January 1997 injury was a temporary aggravation of this chronic underlying condition.  Dr. Vorlicky recommended that the employee return to work with no restrictions on her work activities or on activities of daily living, and concluded that the employee needed no further medical care or treatment, nor further chiropractic treatment.  He determined that the employee had reached maximum medical improvement (MMI), and that she would have reached MMI two or three months after her January 1997 injury.  Dr. Vorlicky found no objective findings upon examination that would support the employee=s pain complaints or extensive treatment received after her January 1997 injury.

 

The employer served the employee with Dr. Vorlicky=s medical report on April 11, 2001, along with notice of maximum medical improvement.  Based on Dr. Vorlicky=s opinions, the employer presented a job offer to the employee, by letter dated April 16, 2001, offering her a return to work as a production truck driver on a full-time scheduled basis, without restrictions.  The employee declined this offer, as she remained under the physical work restrictions issued by Dr. Quirk.  The employee testified that at the time of that initial job offer, she was experiencing headaches, persistent neck and upper back pain and stiffness, and increased burning and tingling sensations in her neck and right shoulder.  At the time of the job offer, the employee apparently was  continuing to work for the employer on a light-duty basis.

 

On April 13, 2001,  Dr. Quirk recommended that the employee undergo an MRI scan in anticipation of a referral to a neurosurgeon for surgical evaluation, and requested authorization to refer the employee for an MRI.  By letter dated April 24, 2001, a representative of the self-insured employer denied preauthorization for an MRI, and also advised Dr. Quirk that payment for all future chiropractic care would be denied, based on Dr. Vorlicky=s medical report.

 

On April 20, 2001, the employer served and filed a notice of intention to discontinue benefits (NOID), based upon the employee=s refusal to accept a written job offer.  Following an administrative conference held on June 5, 2001, a compensation judge denied the employer=s discontinuance.  Thereafter, the employer petitioned to discontinue the employee=s benefits.

 

On June 7, 2001, the employer again offered the employee a position as a production truck driver.  The employee declined this offer as well.  On June 20, 2001,  Dr. Quirk again requested authorization for an MRI scan and enrollment in a nautilus program.  Both pre-authorization requests were denied by the employer. 

 

The employer served and filed a second NOID on July 9, 2001, discontinuing benefits based upon expiration of the 90 day period following the April 20^th service of MMI on the employee.  Following an administrative conference held to address the second NOID, a compensation judge issued an order on discontinuance dated August 9, 2001, allowing the proposed discontinuance of benefits.  The employee filed an objection to discontinuance of benefits. The employee also served and filed a claim petition, seeking temporary total disability benefits from and after July 11, 2001.

 

On August 9, 2001, the employee underwent an MRI of her cervical spine which showed degenerative disk disease and annular bulging at the C5-6 and C6-7 levels, with moderate bilateral nerve root canal narrowing at both levels.  Thereafter, Dr. Quirk referred the employee to a neurosurgeon for a surgical consultation, but authorization for this referral was denied by the employer. 

 

This matter was addressed at hearing on October 11, 2001.  The employer=s petition to discontinue, the employee=s objection to discontinuance and the employee=s claim petition were consolidated for hearing.  In findings and order served and filed October 30, 2001, the compensation judge found that the employee has not yet reached maximum medical improvement from her injury on January 11, 1997, and that she still requires work restrictions due to her neck and shoulder condition.  The compensation judge found that the employee reasonably refused job offers presented by the employer in April and June, 2001, as such positions exceeded her work restrictions.  As a result, the compensation judge awarded temporary total disability benefits continuing from July 11, 2001, Aand forward as long as her disability shall warrant.@  The employer appeals.

 

DECISION

 

1. Refusal of Employer=s Job Offers

 

The employer appeals from the compensation judge=s finding that the employee reasonably refused the job offers made by the employer on April 16 and June 17, 2001, and from the compensation judge=s findings pertaining to the employee=s physical work restrictions.  Relying on Dr. Quirk=s opinions, the compensation judge determined that the employee=s neck and shoulder condition currently requires her to observe the following restrictions, and that such restrictions had been in place since at least April 2001:

 

1)                  8 hour work day

2)                  no lifting in excess of 15 pounds

3)                  no excessive bending, stooping, twisting or working in awkward positions

4)                  no heavy pushing or pulling

5)                  no overhead work

6)                  no lifting over shoulder height.

 

(Finding No. 11.)

 

The compensation judge also found that the employee=s refusal of the job offers was reasonable, based on the following factors: (1) climbing in and out of the truck and twisting in the cab exceeded the employee=s physical work restrictions; (2) the labor work proposed for the employee to perform during a plant shut down, including crane operation work, also exceeded the employee=s restrictions; and (3) static positioning of the neck to monitor overhead work required excessive awkward positioning.  At unappealed Finding No. 3, the compensation judge made the following findings regarding the employee=s work as a production truck driver:

 

The production trucks driven by the employee are roughly two stories tall.  The employee would have to climb a ladder on the side of the truckBapproximately 20 stepsBto enter the cab.  In a typical work day in the last year, she would climb up/down the steps four or five times a day; to begin the work day, for lunch, bathroom breaks and to end the work day.  The truck ride is rough due to the terrains it travels and the quality of the truck=s shocks.  Production truck operation also requires repetitive twisting. 

 

The employer disputes that the employee has any restrictions causally related to her January 11, 1997 injury.   The employer also contends that Dr. Quirk=s multiple medical reports and reports of work ability, issued since June 1998, do not reflect the employee=s current work restrictions necessitated by her January 11, 1997 injury.  The employer therefore presented job offers to the employee through letters sent to the employee on April 16 and June 7, 2001, basing those offers on Dr. Vorlicky=s opinion that the employee could return to unrestricted work.^[3]  In the first offer letter, dated April 16, 2001, a representative of the employer referred to Dr. Vorlicky=s opinion that the employee could return to her regular job duties as a production truck driver, without restrictions.  The letter stated that A[t]herefore, National Steel Pellet Company will place you on the work schedule as a production truck driver the week of April 22, 2001@ and that this was a Afull-time, scheduled position, without restrictions.@  In that letter, the employer also referred to Dr. Vorlicky=s opinion that the employee  did not need any further medical care or treatment nor further chiropractic treatment.  The employer therefore stated that the workers= compensation administrator would not authorize any additional chiropractic treatments, physical therapy treatments, or medical care for her injury.  It appears that there were no attachments to the employer=s letter further delineating the offered job. 

 

The employer acknowledges that there was no job description attached to the letter offering the job of a production truck driver.  The employer argues, however, that because the employee had worked as a production truck driver in the past, she knew what the work of a production truck driver entailed, and that when she received the job offer in April 2001, she knew what work was being offered.  The employer also points to the employee=s testimony that she understood the duties required of a production trick driver, and that she realized that the light duty assignments previously provided to her were not intended to be permanent positions.

 

The compensation judge found that the employee remains restricted due to her January 11, 1997, work injury, specifically relying on Dr. Quirk=s opinions and on his report of September 25, 2001.  The compensation judge addressed the employer=s concerns about the reports and evidence from Dr. Quirk that attribute the employee=s neck and shoulder condition, in part, to  conditions or injuries unrelated to her work.  In her memorandum, the compensation judge stated as follows:

 

I am mindful of the many reports in evidence from Dr. Quirk that suggest Anonwork@ causes were a factor in at least part of the employee=s neck and shoulder condition.  Why he attributed certain neck/shoulder treatment to nonwork causes is unclear.  It is clear, however, that his opinion relating the employee=s neck and shoulder condition to the January 11, 1997 work injury came after careful consideration of specific inquiries regarding causation.  (Employee Exhibit B)  I consider the opinion expressed in his September 25, 2001 report to provide the most accurate explanation of the employee=s current neck and shoulder condition.

 

The record contains conflicting medical opinions concerning the level of the employee=s physical work restrictions and the nature of her current condition.  However, we note that it is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  "Where more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld."  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  The compensation judge relied upon Dr. Quirk=s opinions in reaching her conclusions.  Based upon substantial evidence of record as a whole, including the employee=s testimony and her medical and chiropractic records, it was reasonable for the compensation judge to rely upon Dr. Quirk=s opinions, and specifically on his September 5, 2001 report, in making her determinations concerning the employee=s current neck and shoulder condition, and in reaching her conclusions regarding on the employee=s work restrictions and the reasonableness of the employee=s refusal of the 2001 job offers.  Therefore, we affirm. 

 

2. Maximum Medical Improvement

 

The employer also argues that the compensation judge erred by finding that the employee has not yet reached maximum medical improvement.  At Finding No. 15, the compensation judge found that a Asurgical consultation has been recommended and unless/until surgery is ruled out as an appropriate treatment option, maximum medical improvement is premature.@  The employer argues that substantial evidence does not support this finding, specifically in view of the reports of both Dr. Quirk, the employee=s treating chiropractor, and Dr. Vorlicky, the independent medical examiner.  The employer argues that Dr. Quirk=s narrative report of August 4, 1999, and his AMaximum Medical Improvement Physician=s Report@ of August 10, 1999, served on the employee on August 13, 1999, document that the employee could return to work without restrictions and that the employee had attained maximum medical improvement no later than August 10, 1999.  The employer also relies on Dr. Vorlicky=s report dated March 19, 2001, served on the employee on April 11, 2001, which specifically states that the employee had reached maximum medical improvement from her injury of January 11, 1997.

 

Maximum medical improvement (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.@  Minn. Stat. ' 176.011, subd. 25.  Maximum medical improvement Aoccurs upon medical proof that the employee=s condition has stabilized and will likely show little further improvement.@  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  Whether MMI has been reached is a question of ultimate fact for the compensation judge to decide.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  The burden of proving maximum medical improvement is normally on the employer and insurer.  Burns v. Firestone Tire & Rubber, file no. 106-56-1978 (W.C.C.A. June 29, 1993).

 

In his report of September 25, 2001, Dr. Quirk stated his opinion that AMMI is premature with regards to Ms. DeNucci=s work related cervical condition,@ since the employee was unable to be referred for a surgical evaluation.  In that report Dr. Quirk also explained his recommendation for an MRI, due to the extended time in which the employee experienced symptoms in her neck and arms, and his basis for referral to a neurosurgeon for possible surgical intervention to stabilize the employee=s cervical spine.  By contrast, Dr. Vorlicky specifically concluded that the employee has reached maximum medical improvement, at the time of his independent medical examination on March 19, 2001, and further stated that the employee would have reached MMI two to three months after her January 11, 1997, injury.  Again, it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 342, 37 W.C.D. 372.  Additionally, in this case, where there is a question as to whether the employee requires additional treatment or surgery, the compensation judge could reasonably conclude that the employee has not yet reached maximum medical improvement.  As set forth in Minn. R. 5221.0410(3), one factor to be considered by medical providers when determining maximum medical improvement is whether Aall diagnostic evaluations and treatment options that may reasonably be expected to improve or stabilize the employee=s condition have been exhausted, or declined by the employee.@  Minn. R. 5221.0410(3).  See, Sundquist v. Kaiser Engineers, Inc., slip op. (W.C.C.A. Dec. 13, 1989) (where surgery was pending, maximum medical improvement had not been reached).

In view of the employee=s potential need for additional medical treatment, or, at a minimum, further neurological evaluation, and based on the evidence of record as a whole, the compensation judge could reasonably rely on Dr. Quirk=s opinion that the employee has not yet reached MMI.  Substantial evidence supports the compensation judge=s finding that the employee has not reached MMI; accordingly, we affirm.