MONTI C. GESINO, II, Employee, v. SIERRA CORP. OF SHOREVIEW and WESTERN NAT'L INS. GROUP, Employer-Insurer/Appellants, and METROPOLITAN NEUROSURGERY, P.A., and COLUMBIA PARK MEDICAL GROUP, Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

JUNE 7, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge's conclusion that the employee's continuing low back and neck complaints were causally related to his work activities.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH. Substantial evidence supported the compensation judge's award of temporary total disability benefits, despite the lack of job search, where medical records indicated that the employee was totally medically disabled for part of the period in question, the employee had no rehabilitation assistance, and the employee testified that he expected to return to work for his pre-injury employer.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge's award of temporary partial disability benefits based on the employee's actual earnings in part-time employment, despite the employee's failure to look for other work, where the employee expected his hours to increase in the near future, he had no rehabilitation assistance, and the employer and insurer presented no evidence of higher paying work that the employee could reasonably expect to attain.

 

Affirmed.

 

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

Compensation Judge:  Rolf G. Hagen.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge's choice between expert medical opinions and from the judge's award of temporary total and temporary partial disability benefits.  We affirm.

 

BACKGROUND

 

The employee was born in 1976 and had several jobs, usually construction or labor-type work, following his graduation from high school in 1994.  Medical records reflect some treatment for low back complaints as early as March of 1993, when the employee experienced right-sided lumbar pain as a sixteen-year-old high school student.  In 1998, he was treated again a few times for low back pain that he developed after "cliff jumping" over the weekend or moving furniture in his job.  Physicians diagnosed low back strain or mechanical back pain, with possible sciatica, and the employee's symptoms apparently resolved over time with rest and medication.  Medical records also reflect treatment for neck, shoulder, and arm symptoms, as well as knee problems.  Specific incidents noted in the records of Columbia Park Medical Center, the employee's primary clinic, include a snowmobile accident and an incident in which the employee was struck by a car during an altercation at his job.  He eventually underwent a partial medial meniscectomy to treat his knee condition.  There is no evidence that permanent restrictions were ever recommended relative to the employee's neck and shoulder symptoms or low back condition.

 

In about late March or early April of 2000, the employee began working for Sierra Corporation of Shoreview [the employer], a construction company, which hired him to frame buildings.  On May 22, 2000, the employee sought treatment at Columbia Park Medical Center for neck and arm pain that he attributed to repeatedly moving and lifting trusses at work several days earlier, on May 18, 2000.  Shortly thereafter, the employee began receiving chiropractic care from Dr. Thomas Rice.  Whether the employee was initially treated by Dr. Rice for low back symptoms, as well as upper back, neck, and arm complaints, is disputed.  Dr. Rice's reports reflect little or no low back treatment for several months; however, the employee testified that he received low back adjustments virtually from the outset, and a pain diagram completed by the employee on May 30, 2000, clearly indicates the presence of pain down the employee's entire spine.

 

The employee was apparently off work from about May 23, 2000, until about June 26, 2000, when he began a light-duty job with the employer.  In mid July 2000, QRC Loretta Johnson performed a rehabilitation consultation and began providing rehabilitation services.  According to the rehabilitation plan prepared at that time, it was anticipated that the employee would return to his usual job with the employer following formal work hardening.

 

The employee began a work hardening program at NovaCare in late July of 2000, while continuing to work light duty for the employer on a part-time basis.  His last day of work for the employer was about September 16, 2000.  The employer contends that the employee was terminated at that time for excessive unexcused absences, but no documentation to that effect was submitted at hearing.  The employee contends that he was not terminated but was told that the employer had no appropriate light-duty work at the time.  He also testified that he continued to call the employer regularly to check on the availability of additional work.

 

On October 5, 2000, the employee was seen by Dr. Steven Noran, on referral from Dr. Rice, for a neurological consultation concerning neck pain, low back pain with radiating leg pain, and headaches.  Dr. Noran noted that the employee's work hardening program seemed to be aggravating his symptoms and recommended that the employee discontinue the program for the time being.  Dr. Noran also ordered diagnostic tests, including a lumbar MRI scan, which disclosed a moderate-sized lateral disc herniation at L5-S1, degenerative disc disease at L5-S1, and minimal grade I spondylolisthesis of L5 on S1 secondary to bilateral spondylolysis of the pars intermedia at L5.  Dr. Noran's subsequent diagnosis was lumbosacral sprain/strain syndrome with lumbar disc herniation at L5-S1 and grade I spondylolisthesis with right lumbar radiculopathy; cervical myoligamentous sprain/strain; and cervicogenic headaches.  Dr. Noran eventually wrote that "[s]pecific restrictions would be no static or kinetic use of the low back on a regular basis, change positions as necessary, limit lifting to 10-15 pounds on an occasional basis with proper body mechanics and avoid any percussive activities."

 

Also in October of 2000, QRC Johnson stopped providing rehabilitation services, writing in an October 9, 2000, progress report that she had been "informed by all parties that [the employee's] benefits and rehabilitation services ha[d] been discontinued by the insurer.  Further rehabilitation services will be provided as agreed upon by all parties."^[1]  QRC Johnson further reported that she had spoken to the employer, who "indicate[d] that light duty work [was] not available for [the employee]" but that if the employee was "able to return to his regular duties as a carpenter, work [would] be available for him in this capacity."  The employee testified that he tried on numerous occasions to contact QRC Johnson but that she did not return his calls.

 

The employee continued to receive care from Dr. Noran, who eventually referred him for a surgical evaluation by Dr. Robert Roach.  It was ultimately suggested that the employee might be a candidate for an IDET procedure but that his chronic pain syndrome complaints should be addressed first.

 

The employee was off work entirely from mid September of 2000 until late July of 2001, when he began a part-time job, at a friend's tanning salon, for $6.00 an hour.  In comparison, the employee was earning $10.00, full time, in his pre-injury job with the employer.

 

The matter came on for hearing on August 21, 2001, before Compensation Judge Rolf Hagen.  Issues at that time included whether the employee had injured his low back at work on May 18, 2000, and, if so, the nature and extent of the injury; the nature and extent of the employee's admitted May 18, 2000, neck/arm injury; notice of injury; the employee's entitlement to temporary total disability benefits from October 10, 2000, to July 27, 2001; the employee's entitlement to temporary partial disability benefits from and after July 27, 2001, based on his wages from the tanning salon; and the reasonableness and necessity of proposed chronic pain treatment.  Evidence included the employee's medical records and reports; the independent examiner's report of Dr. Gregory Bernard, D.C., the report and deposition testimony of independent examiner Dr. Gary Wyard; the employee's testimony; and the testimony of John Leukam, the president of the employer.

 

In his decision issued on October 31, 2001, the compensation judge resolved virtually all issues in the employee's favor, accepting the opinion of Dr. Noran, a treating physician, as to the nature and extent of the employee's May 18, 2000, neck and shoulder injury, medical causation for the employee's low back condition, and whether the proposed chronic pain program was reasonably required to treat the employee's work injury.  The compensation judge also determined that the employee had given statutorily sufficient notice of injury and that he was entitled to wage loss benefits as claimed after October 10, 2000.  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.  Medical Causation/Expert Opinion

 

Three physicians offered opinions as to the nature and extent of the employee's May 18, 2000, work injury, including whether the employee had injured his low back on that date and, if so, whether that low back injury was a substantial contributing cause of the employee's continuing low back symptoms and need for treatment.  Drs. Wyard and Bernard both concluded that the May 18, 2000, injury was, at most, a temporary aggravation of the employee's preexisting neck and arm condition and that the employee's low back complaints were not work-related.  Dr. Noran, on the other hand, reported that the employee's May 18, 2000, injury substantially contributed to the employee's ongoing low back and neck problems.

 

The compensation judge expressly adopted Dr. Noran's opinions as to medical causation, the nature of the employee's condition, and the employee's need for treatment, including chronic pain treatment.  On appeal, the employer and insurer argue that the compensation judge erred in accepting Dr. Noran's opinion, because that opinion lacked foundation.  More specifically, the employer and insurer allege:

 

There is no evidence contained anywhere in the records of Dr. Noran that he was aware of the employee's prior neck, upper extremity, shoulder, or low back symptomology and treatment.  Specifically, he was unaware of the detailed treatment records outlined by the employee's primary clinic, Columbia Park . . . .  There is no evidence that he reviewed the employee's historical treatment records at any time during his treatment of the employee or pendency of these proceedings.

 

This argument has no merit whatsoever.

 

In a July 18, 2001, letter to the employee's attorney, Dr. Noran wrote as follows:

 

I have just had the opportunity to review the records that you forwarded to me regarding my patient and your client, Monti Gesino.  These records include Blaine Chiropractic Center, PA, NovaCare Physical Therapy work conditioning progress notes and treatment, Unity Hospital x-ray reports from October 19, 1995, of chest, cervical spine, left hand and left elbow, as well as Dr. David Lindgren's note from March 21, 1997, regarding the patient's right knee arthroscopy, the Value Med February 1, 2001, report, and Columbia Park Medical Group record from May 1993 to May 22, 2000.  After reviewing these records and my April 23, 2000, letter to you, it would be my opinion that the accident of May 18, 2000, is still the sole cause, or at least the very substantial cause, for the patient's ongoing problems with both his neck and low back.

 

(Emphasis added.)  Clearly, Dr. Noran was aware of all of the records cited by the employer and insurer in their argument on this point.  We also reject the employer and insurer's contention that Dr. Noran's opinion lacked foundation because the employee gave him an inaccurate history concerning previous neck and low back complaints; the records cited above supplied whatever information might have been missing in the employee's communications with the doctor.

 

This is an ordinary case involving a compensation judge's choice between conflicting expert opinions.  The employer and insurer's arguments regarding foundation are groundless.  The judge's decision on this issue is therefore affirmed.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

2.  Wage Loss Benefits

 

The compensation judge awarded the employee temporary total disability benefits from October 10, 2000, to July 27, 2001, and temporary partial disability benefits after July 27, 2001, through August 21, 2001, the date of hearing.  On appeal, the employer and insurer argue that the compensation judge erred with regard to his award of temporary total disability benefits, because the employee was released to work but conducted no job search at all, and that the award of temporary partial disability benefits must be reversed because the employee's tanning salon job is not representative of his earning capacity.

 

The judge's award of temporary total disability benefits presents a very close issue, because the employee admittedly performed no job search during the period in question.  See Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  However, as the compensation judge noted, the employer and insurer's primary defense to the employee's wage loss claim was that the employee was no longer disabled as a result of his injury, an issue on which the employee ultimately prevailed.  We would also observe that the compensation judge expressly found the employee's testimony to be credible, and the employee explained at hearing that he did not look for work in part because he considered himself still employed by the employer and because he had expected to receive additional help from the QRC.  Job search obligations may be mitigated where the employee reasonably expects to return to his pre-injury job, Oihus v. Roadway Express, 61 W.C.D. 118, 124 (W.C.C.A. 2000), and it is also worth noting that the employee's rehabilitation plan, which was never formally closed, called for a return to work with the employer.  There are, in addition, reports of work ability from the Noran Clinic indicating that the employee was to remain totally off work from October 20, 2000, until at least December 18, 2000.  Given these circumstances, and in view of the employee's work history and lack of active rehabilitation assistance, we find the record minimally adequate to support the compensation judge's temporary total disability benefit award.  The fact that we might have decided the issue differently is not determinative.

 

The judge's award of temporary partial disability benefits presents a somewhat easier question on review.  Actual earnings are generally presumed to be representative of an injured employee's earning capacity.  See Roberts v. Motor Cargo, 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960).  We, like the compensation judge, have some concern about the fact that the employee did not look for any other work to replace or supplement his part-time job at the tanning salon.  However, as the compensation judge also noted, the employee had no rehabilitation assistance, and, according to Dr. Noran, the employee is permanently precluded from returning to the kind of labor or construction work in which he has experience.  It is also relevant that the employee had only had the tanning salon job for about a month prior to the hearing and that he expected his hours to increase in the near future.  Finally, the employer and insurer presented no evidence of any higher-paying jobs that the employee could reasonably expect to obtain.  Any concerns the employer and insurer might have about the employee's underemployment may be addressed through reinstatement of rehabilitation services and amendment of the employee's rehabilitation plan.  See DeNardo v. Divine Redeemer Hosp., 450 N.W.2d 290, 42 W.C.D. 626 (Minn. 1990).  Substantial evidence supports the compensation judge's temporary partial disability benefit award through the hearing date.