KEVIN FLETCHER, Employee, v. TODD COUNTY and MINNESOTA COUNTIES INS. TRUST/ALEXSIS/RSKCO, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 10, 2002

                       

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; TEMPORARY BENEFITS; REHABILITATION - ELIGIBILITY.  Substantial evidence supported the compensation judge=s denial of the employer and insurer=s request to discontinue temporary total disability benefits and rehabilitation services, where expert opinion supported the compensation judge=s conclusion as to the employee=s work-related restrictions, which precluded the employee from returning to his pre-injury job, where there was no evidence that the employee had earned income during the period at issue, and where the record indicated that the employee would benefit from rehabilitation services.

 

Affirmed.

 

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

Compensation Judge:  Carol A. Eckersen.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge’s denial of their request to discontinue temporary total disability benefits and from the judge’s findings that the employee has restrictions as a result of the work injury and is a qualified employee for purposes of rehabilitation services.  We affirm.

 

BACKGROUND

 

The employee sustained an injury to his low back on January 29, 2001, while working for Todd County [the employer] as a truck driver.  At that time, the employee also owned a Caterpillar bulldozer that he informally leased to the employer and operated primarily at the county’s landfill.  The employee also had a hobby farm where he raised calves.

 

  The employee treated with his family physician, Dr. William Mennis, on January 30, 2001, complaining of low back pain and numbness in his legs bilaterally.  Dr. Mennis took the employee off work and referred him for physical therapy.  Dr. Mennis eventually diagnosed advanced osteoarthritis of the lumbar spine, with a myofascial strain, and referred the employee to orthopedist Dr. David L. Kaus. 

 

Dr. Kaus examined the employee on July 3, 2001.  He too diagnosed degenerative disc disease with a lumbar strain, noting in his report that, “[g]iven the amount of degenerative changes in the lower back, the fact that the patient has been off work for nearly six months, I am fairly uncertain that he will be able to resume doing his job with strenuous work.”  He went on to state, however, that, “if there were alternative duties where he could alternate sitting and standing at least every hour and not do any bending or twisting at the waist or any lifting of more than 10 pounds,” then the employee could pursue such a job.  The employee’s QRC, Stanley Sizen, contacted the employer, but they did not have work available for the employee within those restrictions.

 

After the work injury, the employee’s  supervisor, Tim Kadewalder, approached him and asked if he was still able to perform the bulldozer work.  The employee told him that he thought that he could, with the help of his grandson.  They agreed that the employee’s grandson would be allowed to operate the bulldozer at the landfill with the employee’s supervision.

 

On July 15, 2001, the employee was videotaped operating the bulldozer at the landfill for a period of 111 minutes, including breaks.   On August 17, 2001, the employer and insurer filed a notice of intention to discontinue workers’ compensation benefits [NOID] on the basis that surveillance had shown “that claimant has been performing other work while collecting TTD and has not reported this profit to insured.  This work reveals claimant does not need the physical restrictions outlined by the treating physician.  It appears treating physician is not aware of the current work activities of the claimant.”  The matter proceeded to an administrative conference, and, in an order filed on October 1, 2001, a compensation judge found that the employer and insurer had established reasonable grounds for discontinuing temporary total disability benefits.

 

On October 29, 2001, the employer and insurer filed a rehabilitation request, requesting that the rehabilitation plan be terminated.  The employee objected, and, on November 21, 2001, he filed an objection to discontinuance.  The matters were consolidated for purposes of a hearing held on January 30, 2002.

 

In findings and order filed on April 1, 2002, the compensation judge found, in relevant part, that the employee had restrictions related to his work injury, that he had operated the bulldozer after his injury, and that the evidence did not indicate whether the employee had made a profit or received income from that activity.  The judge also found that the employee is no longer capable of handling the farming chores, that his farming activities did not constitute employment so as to disqualify him from receiving temporary total disability benefits, that the employee was a qualified employee for purposes of eligibility for rehabilitation services, and that such services should not be terminated.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the 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, “they 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, “[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, “unless 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

 

1.  Whether the Employee Returned to Work

 

Minn. Stat. § 176.101, subd. 1(e), states that temporary total disability shall cease when the employee returns to work.  The employer and insurer first contend that the compensation judge improperly expanded the issues raised in the NOID by finding that there was insufficient evidence to show that the employee was working with the bulldozer “at a job that earned income.”  We find no improper expansion of the issues -- this is the exact issue that the employer and insurer  raised in their NOID when stating, “claimant has been performing other work while collecting TTD and has not reported this profit to insured” (emphasis added).

 

In the alternative, the employer and insurer contend that the compensation judge erred in finding that the evidence submitted did not indicate “whether the employee made a profit from this work or took income from operating the bulldozer.”^[1]  The employer and insurer point to Exhibit 1, billings submitted by the employee to the employer for his bulldozing work for the period from February to November of 2001, as evidence that the employee earned income from that activity.  However, as noted by the compensation judge in her memorandum, the evidence does not show what payments were made by the employer or whether the employee paid himself and/or his grandson from those payments.  The only specific testimony at hearing about income from the bulldozer work was the employee’s testimony that the Caterpillar lease operation is reported as part of his farm operation for income tax purposes and that the farm operation did not show any profit in the year 2001.  In addition, no evidence was admitted as to what part of the billings was for rental of the bulldozer and what part was a charge for the driver’s activities.^[2]  Therefore, substantial evidence supports the judge’s finding that the evidence did not establish that the employee had made a profit or received income from operating the bulldozer.

 

The employer and insurer also contend that “[t]he Employee’s work as a bulldozer operator, farmer and township counsel [sic]  person constitutes work” and that the lack of substantial earnings in a self-employment setting does not obligate the employer and insurer to pay wage loss benefits.  The compensation judge did not address this particular issue as it was not specifically presented to her at hearing.  We would note, however, that the employee performed some activities as a bulldozer operator and farmer both before and after his work injury.  At oral argument, both parties agreed that any earnings that the employee may have received from those activities were not included when calculating average weekly wage at the time of the employee=s work injury.^[3]  Therefore, the temporary total disability benefits that the employee received were a wage replacement for his lost earnings from his truck driving job with the employer.  The compensation judge accepted the opinion of Dr. Kaus that the employee has physical restrictions related to the work injury that prevent him from returning to work as a truck driver, and the employer has not provided the employee with other work within his restrictions.  As such, under the particular facts of this case, the compensation judge did not err in finding that the employee’s activities as a bulldozer operator and hobby farmer do not disqualify him from receiving temporary total disability benefits.^[4]

 

2.  Whether the Employee has Restrictions Related to the Work Injury

 

The employer and insurer list their next issue as whether the employee’s current restrictions are related to the work injury of January 29, 2001.  This issue was not raised in the NOID.  See Minn. Stat. § 176.238, subd. 6.  However, at hearing, the compensation judge included, as one of the issues before her, whether the employee had “restrictions as a result of the January 29, 2001, work injury.”  Both parties indicated on the record that they were in agreement as to the accuracy of the judge’s statement of the issues.  Therefore, it appears that the parties agreed to an expansion of the issues.  See id.

 

The compensation judge relied upon the opinion of Dr. Kaus in finding that the employee had restrictions as a result of the work injury.  The employer and insurer contend that Dr. Kaus’s opinions are lacking in foundation as the doctor did not review all of the employee’s medical records, he did not review restrictions relating to the employee’s knee condition, and he had not viewed the videotape of the employee operating the bulldozer.  However, those medical records that Dr. Kaus did not review before issuing his report were summarized for him in a hypothetical given at the time of his deposition.  In addition, Dr. Kaus testified that he had reviewed the October 25, 2001, report of independent medical examiner Dr. Paul Yellin, in which Dr. Yellin summarized the medical records that he had reviewed.  We are also not persuaded that Dr. Kaus’s opinions as to the employee’s back condition lack foundation based on any lack of knowledge concerning the employee’s knee condition. 

 

We are similarly unpersuaded by the employer and insurer’s argument regarding the videotape.  It is undisputed that Dr. Kaus did not review the videotape, but he was given an extensive hypothetical during his deposition that summarized what was recorded on the videotape.  While the employer and insurer dispute the accuracy of the hypothetical, the compensation judge viewed the videotape and, in her memorandum, noted that the doctor “was presented with a complete hypothetical.”  This court has also viewed the videotape and can find no deficiency in the hypothetical given to Dr. Kaus that would warrant reversal of the judge’s findings adopting Dr. Kaus’s opinions.^[5]  After being given the hypothetical concerning the videotape, Dr. Kaus acknowledged that the employee “may not be adhering” to all of his restrictions, but he testified that the hypothetical did not change his opinion that the employee’s work activities were a substantial contributing factor in the employee’s degenerative lumbar disc disease and lumbar strain.  While the doctor further testified that the employee’s farming activities prior to the work injury would also have contributed to the degenerative condition in his low back and that the bulldozing activities, pre-injury, “might” have been a substantial contributing factor to the employee’s low back condition post-injury, his testimony to this effect does not relieve the employer of liability under the circumstances.  A trier of fact’s choice between expert opinions is generally upheld, unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The judge’s finding that the employee has restrictions related to his work injury is therefore affirmed.

 

3.  Whether the Employee is Entitled to Rehabilitation Services

 

The employer and insurer also appeal from  the compensation judge’s finding that the employee is entitled to ongoing rehabilitation benefits, contending that the employee did not cooperate with rehabilitation efforts in that he violated the “Rehabilitation Rights and Responsibilities of Injured Worker” form by not reporting his return to work or advising the QRC and the insurer of his wage, hours, employer, and job title.  We are not convinced.

 

The employee did not “return” to the bulldozing work.^[6]  Rather, he performed that activity both prior to and after the work injury, without known interruption.  While the employee testified he has altered how he does these activities in that he now relies on his grandson, the fact remains that he has continually performed that activity.  More importantly, the bulldozing work was done for the employer; the employee submitted bills to the employer for that work.  The lack of communication here appears to be between the employer and its workers’ compensation insurer/administrator rather than between the employee and his QRC.

 

The employee has restrictions related to his work injury that prevent him from returning to his pre-injury employment, and he is likely to benefit from rehabilitation services.  The judge’s denial of the employer and insurer’s request to terminate rehabilitation services is affirmed.