LAURA E. KRUKOW, Employee, v. CRACKER BARREL OLD COUNTRY STORE, SELF-INSURED/RISK ENTER. MANAGEMENT, INC., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 21, 2002

                                                                             

HEADNOTES

 

REHABILITATION - ELIGIBILITY.  Substantial evidence, including medical records and the employee=s testimony, support the compensation judge=s conclusion that the employee is subject to restrictions that affect her employability and would benefit from ongoing rehabilitation services.

 

Affirmed.

 

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

Compensation Judge:  Paul V. Rieke.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The self-insured employer appeals from the compensation judge=s denial of its request to discontinue rehabilitation services.  We affirm.

 

BACKGROUND

 

On July 30, 2001, the employee was employed as a waitress for Cracker Barrel Old Country Store [the employer] when she slipped and fell at work, injuring her low back.  The employee=s work activities included lifting heavy trays, bussing tables, and stocking juices.  According to the employee=s description, those activities involved bending, twisting, overhead lifting, turning, and lifting up to twenty pounds.

 

The employee treated at an urgent care clinic on the date of injury, where she was diagnosed with a low back contusion and released to return to work on August 1, 2001.  She continued to work and saw her family physician, Dr. John Rhoades, on August 14, 2001, complaining of increased pain from working, including pain in the low back with radiation to the left buttock and back of the left leg.  Dr. Rhoades restricted the employee=s work activities.  The employee was apparently able to continue working for the employer with those restrictions, although she was not able to perform her waitress duties.

 

The employee began treating with Dr. Andrew Westbrook on August 24, 2001.  At that time, Dr. Westbrook apparently imposed more stringent restrictions, which the employer could not accommodate.^[1]  Dr. Westbrook referred the employee to physical therapy, which began on September 24, 2001.  Physical findings on that date included spasm.

 

Dr. Westbrook referred the employee to orthopedic surgeon Dr. William Simonet, who ordered an MRI scan of the lumbar spine.  That MRI was performed on October 16, 2001, and revealed Amild juvenile discogenic pattern with disc dehydration and narrowing at T12-L1, L1-2, and mild early intranuclear dehydration at L2-3 and L3-4 and mild disc dehydration at L5-S1.@  No disc herniation, stenosis, or neural compression was identified.  Dr. Simonet recommended that the employee Aignore the symptoms and move on with life,@ indicating that the employee could return to work without restrictions.

 

A physical therapy update on October 18, 2001, revealed that the employee=s lumbar-sacral extension was 25% of normal and that the employee had Aquadrates spasm.@  The employee was unable to perform the lumbar stabilizing exercises that day due to the spasms.

 

The employee returned to Dr. Westbrook on October 26, 2001.  At that time, Dr. Westbrook noted Asignificant bilateral lumbar paraspinous muscle spasms,@ and he restricted the employee from lifting more than five pounds, twisting or turning movements, bending or reaching above the shoulders, and activities that would exacerbate her back pain.  Dr. Westbrook indicated that those restrictions should remain in place for six months.

 

The employee was examined by independent medical examiner Dr.  Stephen Olmsted on November 26, 2001.  According to the doctor=s report, the employee complained of low back pain and occasional pain into the left and right buttocks, noting increasing pain with any bending, lifting, or twisting.  Dr. Olmsted found the employee to have a normal physical exam and MRI scan.  He recommended that the employee have one to two visits with a physical therapist for instruction in an active home exercise program and that she continue intermittent use of anti-inflammatory medications as needed.  It was Dr. Olmsted=s opinion that the employee had reached maximum medical improvement and could return to work without restrictions. 

 

The employee apparently went without further treatment until she returned to Dr. Westbrook on January 2, 2002, complaining of dull achy bilateral lumbar pain, at times radiating into the thoracic spine and the buttocks with severe spasm.  The doctor=s examination revealed no tenderness over the bony  spine, no paraspinous muscle spasms, and normal straight leg raising.  The doctor recommended that the employee Acontinue current restrictions (which end 4/02),@ renewed a prescription for flexeril for muscle spasm to use Aas needed,@ prescribed work hardening, and indicated that the employee should return to the clinic in four weeks for a re-check. 

 

On January 28, 2002, the employer filed a rehabilitation request, seeking to terminate the employee=s rehabilitation plan based on Athe lack of objective findings, lack of support for any ongoing treatment, the specialist [Dr. Simonet] and IME opinions . . . .”^[2]  The employee filed a rehabilitation response, requesting that rehabilitation services be continued.  The matter proceeded to an administrative conference on March 18, 2002, after which a mediator/arbitrator found that the employee was eligible for continued rehabilitation services.  The employer then filed a request for formal hearing.

 

The employee did not return to Dr. Westbrook.  However, a repeat MRI was performed on March 1, 2002, which was interpreted as showing a small right posterolateral L5-S1 disc protrusion.  Shortly thereafter, on March 7, 2002, the employee began treating with Dr. John Stark, who reviewed the MRI and found no disc dehydration.  The employee complained of low back pain and pain, tingling and occasional numbness in both legs.  On examination, Dr. Stark found that the employee had some midline tenderness and Aan asymmetry that seems to center over the left PSIS,@ and his assessment was Amechanical back pain, probably SI pain or SI component, possible annular tear.@  He recommended an injection into the sacroiliac joint, which was performed on March 18, 2002, and gave the employee 70% relief, but the relief did not last.  Dr. Stark=s office note of April 15, 2002, indicates that the employee=s reaction to the injection Ais a strong indication of the nature of her complaint.”  He recommended that the employee repeat the injection in three weeks.  The employee had a second injection, and, in his office note of May 20, 2002, Dr. Stark noted that the employee got 75% relief from that injection, which Dr. Stark noted Asupports the diagnosis of an SI problem.@  Dr. Stark further indicated,

 

She is advised that she should remain conservative, if at all possible.  She understands and consents.  She is given the option of surgery, but hopefully this will never be necessary. . . . The progress made on this today is that we will simply observe this, hoping that she does well and that nothing further will be necessary.

 

The hearing on the rehabilitation issue took place on June 5, 2002.  The sole issue at hearing was whether the employee had restrictions, as a result of the work injury, that would prevent her from returning to her pre-injury employment and thus entitle her to rehabilitation assistance.  In findings filed on June 7, 2002, the compensation judge determined that the employee could not engage in her pre-injury occupation as a waitress and was entitled to rehabilitation assistance.  The employer appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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, Athey 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, A[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, Aunless 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

 

The employer first contends that the restrictions placed on the employee by Dr. Westbrook were lacking in foundation as there were no findings on examination or on the MRI to support them.  We note initially that, when he recommended the October 26, 2001, restrictions, Dr. Westbrook specifically noted Asignificant” paraspinous muscle spasm on exam.  In addition, as recently as January 2, 2002, Dr. Westbrook prescribed flexeril Afor muscle spasm,” and Dr. Stark=s office notes from March 7, 2002, indicate that the employee was taking over-the-counter flexeril at that time.  Finally, the employee testified at hearing that she continues to have low back pain into the buttock, which has not changed since January of 2002.

 

The employer also contends that no specific restrictions were in effect at the time of trial.  It is true that Dr. Westbrook indicated that his October 2001 restrictions would remain in effect for six months, a period which would have ended on or about April 26, 2002, and that Dr. Stark did not issue any written restrictions for the employee.  However, the hearing took place less than two months after the end date for Dr. Westbrook=s restrictions, and the employee testified that she had ongoing pain and that walking up stairs, opening doors, and lifting hurt her back.  In addition, the employee testified that Dr. Stark had advised her not to overdo it and that he did not release her to return to work without restrictions.  Given this evidence, it was not unreasonable for the compensation judge to conclude that restrictions were still appropriate at the time of trial.

 

The October 2001 restrictions of Dr. Westbrook would preclude the employee from returning to work as a waitress given the employee=s description of her work activities with the employer.  In addition, when asked at trial whether she was physically capable of doing the waitress work that she had been doing at the time of injury, the employee responded, ANo, I don=t think so.”  The judge specifically found the employee=s testimony concerning her low back condition and her inability to perform her usual job to be credible.  Assessment of a witness=s credibility is a unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

  

Finally, the employer contends that the employee=s request for rehabilitation assistance was rendered Amoot@ by the employee=s testimony that she wanted a QRC appointed so that she would have someone to bounce ideas off regarding surgery and possible treatment and to help her find a job Aafter tomorrow.”  Maintaining that no one has recommended surgery, that the employee was only looking for help with summer employment, and that the employee would have returned by now to the full-time employment she works in, with a different employer, during the school year, the employer argues that rehabilitation services are unlikely to be of any benefit to the employee.  We are not persuaded.  Medical management is one aspect of rehabilitation assistance, and the employer=s argument as to the employee=s return to work in the fall of 2002 is pure speculation not based on anything in the record before us.

 

Certainly there is evidence which would have supported an alternative finding by the compensation judge.  However, it is not this court=s function to determine whether the evidence would support alternative findings but rather whether substantial evidence supports the findings that the compensation judge made.  Because substantial evidence supports the judge=s finding that the employee is entitled to ongoing rehabilitation assistance, we affirm the judge=s decision in its entirety.