MICHAEL L. DREW, Employee/Appellant, v. LONG PRAIRIE PACKING and ZURICH U.S., Employer-Insurer.

                       

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 16, 2002

 

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.   Substantial evidence, including the opinions of the employee=s QRC, the employer and insurer=s vocational expert, and the independent medical examiner, supports the compensation judge=s conclusion that the employee did not sustain a Gillette injury to the low back on March 23, 2001.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  There is adequate evidentiary support for the compensation judge=s denial of temporary total disability benefits, includ­ing the opinions of the employer and insurer=s vocational and medical experts, and the employee=s lack of a job search during the period in question.

 

JOB OFFER - REFUSAL.  The court declines to vacate the compensation judge=s findings that the employee left a suitable job as a knife sharpener and was offered, but refused, a suitable job as a gate guard, where these findings have no apparent effect on any future claim by the employee for benefits.

 

Affirmed.

 

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

Compensation Judge: Joan G. Hallock.

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that he did not sustain a Gillette-type^[1] personal injury on March 23, 2001, the judge=s denial of his claim for wage loss bene­fits and the judge=s finding that the employee refused a suitable job.  We affirm.

 

BACKGROUND

 

Michael L. Drew, the employee, sustained an admitted injury to his low back on January 9, 1996, while working for Long Prairie Packing, the employer, then insured by Zurich U.S.  As a result of this injury, the insurer paid 100 weeks of temporary total disability benefits, 174 weeks of temporary partial disability benefits, and paid the employee for a 17 percent whole body disability.

 

Following his personal injury, the employee treated with several physicians and ultimately saw Dr. David R. Jorgensen, an orthopedic surgeon, on September 20, 1996.  The doctor examined the employee, reviewed an MRI scan, and diagnosed L4-5 degenerative disc disease with inflammatory radiculopathy.  On March 24, 1997, Dr. Jorgensen performed a discectomy at L4-5 which did not result in any significant improvement in the employee=s symptoms.  A repeat MRI scan in April 1997 showed fibrosis around the L5 nerve root and what appeared to be a disc fragment just below the L4-5 interspace.

 

Dr. Jorgensen referred the employee to Dr. Sunny Kim who recommended further surgery.  On August 1, 1997, Dr. Kim performed a second discectomy at L4-5 for a recurrent disc herniation.  A third MRI scan on December 18, 1997, showed a right-sided disc herniation, an ex­trusion of a disc fragment which possibly impinged on the right L5 nerve root and mild central canal stenosis at L4-5.  In March 1998, Dr. Kim performed a repeat discectomy for a recurrent disc her­niation and an anterior/posterior interbody fusion using cages.  The employee underwent an exten­sive period of rehabilitation following his third surgery.

 

 Tod Paulson, a qualified rehabilitation consultant (QRC), began working with the employee in 1997.  Initially, the rehabilitation plan provided for medical monitoring with an eventual return to work with the employer.  On September 25, 1998, Dr. Kim released the employee to return to light-duty employment four hours per day.  Mr. Paulson reviewed a job with the employer described as Apinning tags,@ to which the employee returned.  On April 16, 1999, Dr. Kim again took the employee off work and recommended a functional capacity evaluation (FCE), which took place in May 1999.  Dr. Kim approved the restrictions outlined on the FCE but continued to limit the employee=s work to four hours a day.

 

In April 1999, the employee began training for a knife sharpening position with the employer.  In September 1999, Mr. Paulson did a job analysis of the position and determined it required too much forward bending, but also concluded that, with modification, the position would meet the restrictions contained in the FCE.  Thereafter, the employer constructed a new knife sharp­ening room which allowed alteration of the position of the knife sharpening machines.  At some point, Mr. Paulson performed another job analysis of the modified position and obtained a videotape of an employee sharpening knives in the new work site.

 

In April 2000, the employee returned to work with the employer as a knife sharpener four hours a day.  In this job, the employee sharpened the knives of other employees working on the kill floor.  To sharpen the knives, the employee first used a hollow grinder machine at which he stood.  The employee then moved to a finishing grinder and then used a buffing wheel to complete the knife sharpening process.  The employee testified he was unable to sit and had to bend at the waist when he performed this job.  When he arrived in the morning, the employee stated he would work steadily for approximately an hour sharpening knives and then would go to the supply room to get supplies and then clean and repair equipment.  The employee would then walk to the tripe room and pick up more knives for sharpening.  The employee never worked more than four hours a day in this job.  During a four-hour shift, the employee stated he sharpened approximately 180 knives.  After several months on the job, the employee noted a gradual increase in his low back and left leg pain.  The employee testified his left hip and leg symptoms were worse at the end of a four-hour shift than they were at the beginning and worse on Friday than they were on Monday.  On March 23, 2001, the employee was working at the finishing grinder when he felt a severe burning pain down his left leg.  The employee told his supervisor, Pat Collins, about the incident.

 

The employee returned to see Dr. Kim on February 2, 2001, complaining of an in­crease of low back and left hip pain over the last month.  A CT scan showed transitional zone stenosis at L3-4 which Dr. Kim concluded corresponded with the employee=s bilateral hip pain.  A CT myelogram showed some moderate stenosis at L3-4.  On March 26, 2001, Dr. Kim recommended an epidural steroid injection and stated the employee should continue working in the same capacity unless his symptoms became more intolerable.  The employee returned to see Dr. Kim on May 7, 2001, with continued complaints of back and bilateral leg pain.  The doctor noted that since the pro­posed epidural injection was not approved, the employee was unable to work.  Thereafter, the em­ployee received the injection and returned to see Dr. Kim on June 1, 2002.  The employee told the doctor the injection did not help and Dr. Kim then took the employee off work indefinitely. 

 

On May 3, 2001, Mr. Paulson was requested to perform an on-site job analysis of a guard shack position which the employer was considering offering to Mr. Drew in lieu of the knife sharpening position.  The job involved checking license plates of vehicles seeking entry to Long Prairie Packing, opening a gate by pushing a button on a remote control and preparing certain logs, records and other paperwork.  Mr. Paulson concluded this job was a sedentary/light duty position and was within the employee=s restrictions contained on the FCE.  On May 18, 2001, the employee left his knife sharpening job with the employer.  On June 28, 2001, Patrick Collins, a representative of the employer, wrote to the employee to advise him the permanent job of knife sharpening was available eight hours a day, five to six days a weeks.  Mr. Collins further stated the employer was reoffering the gate guard position to the employee on a full-time basis.  The employee did not accept either position.  The employee testified that after leaving his job with the employer, he did not seek work until he accepted a job as a part-time school bus driver sometime after November 5, 2001.

 

James Duchene, an investigator, obtained videotaped surveillance of the employee in October and November 2001 at the request of the insurer.  Over those days, Mr. Duchene spent a total of approximately 32 hours conducting surveillance of the employee.  Mr. Duchene obtained 50 minutes of videotape of the employee during his surveillance.

 

On May 29, 2001, the employee was examined by Dr. Mark C. Engasser at the request of the employer and insurer.  The doctor=s deposition was taken on November 13, 2001.  In preparation for his examination and deposition testimony, Dr. Engasser reviewed the employee=s medical records, obtained an oral history from the employee, and viewed the surveillance videotapes.  On examination, the doctor testified he found positive Waddell signs from which he concluded the employee=s complaints of pain were inconsistent with the findings on examination.  Based upon the doctor=s examination and the surveillance videotapes, the doctor opined the employee=s complaints of pain were not reliable.  The doctor opined the employee did not sustain a Gillette-type personal injury to his spine in February or March 2001.  The doctor concluded the job was not sufficiently difficult nor did the employee put enough time on the job to produce a Gillette-type injury.  Dr. Engasser opined the February 2001 CT scan was consistent with the employee=s problems which pre-existed the knife sharpening job with the employer.  Dr. Engasser stated the employee was able to work on a full time basis with restrictions on sitting and walking and with occasional bending, stoop­ing and squatting.  The doctor opined the knife sharpening job which the employee performed was physically appropriate for him and within his restrictions.  Further, the doctor opined the employee was able to perform the gate guard job offered by the employer.    The doctor opined the employee was not permanently and totally disabled.

 

The deposition of Dr. Sunny Kim was taken on October 30, 2001.  Dr. Kim testified he last saw the employee on June 1, 2001, at which time his diagnosis was spinal stenosis at L3-4 with a multiple recurrent disc herniation at L4-5.  Dr. Kim opined the stenosis at L3-4 was a new injury which resulted from the employee=s work activities in the knife sharpening job.  The doctor testified the employee did not demonstrate Waddell signs during his examinations.  Dr. Kim re­moved the employee from work effective June 1, 2001, and opined in his deposition the employee was totally disabled and unable to work.  However, Dr. Kim also opined the employee could do the gate guard job for eight hours a day.

 

Ms. Jan Lowe, a vocational rehabilitation consultant, performed a vocational evalu­ation of the employee on October 25, 2001.  As part of her evaluation, Ms. Lowe obtained an edu­cational and employment history from the employee, reviewed his medical records, performed vocational tests and conducted a labor market survey.  Based upon her evaluation, Ms. Lowe con­cluded the knife sharpening job with the employer was within the employee=s restrictions as set forth in the functional capacity evaluation and she opined the employee could work full time in that job.  She further opined the employee could work full time at the gate guard job.  Ms. Lowe testified other jobs were available to the employee on a full-time basis but these jobs would pay less than the knife sharpening and gate guard jobs with the employer.  Ms. Lowe also reviewed the surveillance video­tapes of the employee and concluded the employee=s activities on the tape demonstrated work capabilities in excess of those set forth on the functional capacity evaluation.  Finally, Ms. Lowe concluded the employee was not permanently and totally disabled.

 

The employee filed a claim petition seeking temporary total and/or permanent total disability benefits from May 18, 2001.  The employee further alleged he sustained a Gillette-type personal injury culminating on March 23, 2001.  The case was heard by a compensation judge at the Office of Administrative Hearings on November 14, 2001.  In a Findings and Order served and filed January 15, 2002, the compensation judge found the employee did not sustain a Gillette injury on March 23, 2001.  The judge further found the employee was not permanently and totally disabled or temporarily and totally disabled and denied the employees claims for benefits.  The employee appeals. 

 

DECISION

 

1. Gillette Injury

 

The employee first contends the compensation judge=s finding that he did not sustain a Gillette injury on March 23, 2001 is unsupported by substantial evidence.  The employee argues he had  no symptoms or restrictions related to his L3-4 spinal stenosis prior to March 2001.  It was only after his work as a knife sharpener that he began to experience left sided leg pain which Dr. Kim stated was secondary to stenosis brought about by the work activities.  Based upon the onset of new symptoms and the causation opinion of Dr. Kim, the employee contends he has proved he sustained a Gillette injury and asks this court to reverse the compensation judge=s decision to the contrary.  We decline to do so.

 

 Mr. Paulson and Ms. Lowe viewed the videotape of the knife sharpening job and opined the job was within the restrictions outlined in the functional capacity evaluation and was physically suitable.  Dr. Engasser reviewed the job videotape and concluded the job involved only minimal repetitive activity and did not require any significant amount of bending or rotation of the spine which would cause any undue stress.  The doctor opined the employee did not sustain a Gillette injury as a result of the knife sharpening job, concluding the job was not sufficiently repe­titive, stressful or difficult, nor did the employee spend enough time on the job to cause an injury.  The compensation judge accepted Dr. Engasser=s opinions.  Although Dr. Kim reached a contrary conclusion, the resolution of conflicting expert testimony is the function of the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (1985).  Substantial evidence supports the compensation judge=s decision that the employee did not sustain a Gillette injury on March 23, 2001.  The judge=s decision is, therefore, affirmed. 

 

2. Temporary Total Disability

 

The employee also appeals the compensation judge=s denial of his claim for tempor­ary total disability benefits from and after May 17, 2001.  The employee concedes that he did not seek employment during the period in question, but contends he had been removed from work by Dr. Kim and was medically disabled and totally unable to work.  Thus, he argues, a job search was not required.  Accordingly, the employee contends the compensation judge=s denial of benefits was erroneous.  We disagree.

 

Dr. Engasser examined the employee on May 29, 2001, and concluded the employee could then work on a full-time basis within the restrictions contained in the functional capacity evaluation completed at Northern Star Therapy on May 28, 1999.  In his deposition obtained on November 13, 2001, Dr. Engasser repeated this opinion.  Following her vocational evaluation, Ms. Lowe also concluded the employee was capable of working full-time within the restrictions outlined by Dr. Engasser.  This testimony provides adequate evidentiary support for the judge=s denial of the employee=s claim for temporary total disability benefits.  While there is evidence of record to support the employee=s position, under this court=s standard of review, the issue is not whether the evidence will support alternative findings but whether substantial evidence supports the judge=s findings.  Minn. Stat. ' 176.421, subd. 1.  Where evidence conflicts or more than one inference can be drawn from the evidence, the judge=s findings are to be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). 

 

3. Refusal of Suitable Employment

 

The compensation judge further found the employee left a suitable job as a knife sharpener and was offered another suitable job as a gate guard which he refused.  The compensation judge found the employee was physically able to perform either of these jobs.  The employee appeals these findings contending they are unsupported by substantial evidence.  The employee also contends that the legal ramification of the judge=s findings that the employee refused a suitable job is unclear, and,  accordingly, and asks these findings be reversed.  

 

The employee=s personal injury occurred on January 9, 1996.  The two-tier system of per­manent partial disability benefits was repealed in 1995.  Thus, the finding that the employee refused a suitable job has no bearing on any future claim for permanent partial disability benefits.  There was no claim by the employer and insurer, nor did the judge find, that the employee refused an offer of  Againful employment@ within the meaning of Minn. Stat. ' 176.101 subd. 1(i).  Neither did the em­ployer allege or the compensation judge find the employee refused an offer of work consistent with the plan of rehabilitation as provided by Minn. Stat. ' 176.101 subd. 1(i).  Rather, the employer contended it had physically suitable work available for the employee in defense of the employee=s claim for total disability benefits.  We conclude these findings have no effect on any future claim by the employee for benefits, accordingly we decline to vacate them.