MICHELLE M. MILLER, Employee/Appellant, v. SWANSON & YOUNGDALE, INC., SELF-INSURED/BERKLEY RISK SERVS., Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE; TEMPORARY TOTAL DISABILITY - FULLY RECOVERED.  Substantial evidence, including expert opinion, supported the compensation judge=s denial of the claimed benefits based on the conclusion that the employee had misrepresented her physical condition to her healthcare providers and QRC and had fully recovered from the effects of her work injury.

 

Affirmed.

 

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

Compensation Judge:  Jennifer Patterson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s denial of temporary total and permanent partial disability benefits.  We affirm.

 

BACKGROUND

 

The employee began working as an apprentice painter for Swanson & Youngdale, Inc. [the employer], in August of 2000.  Her job duties included taping and applying Amud@ to drywall, requiring her to carry buckets of drywall mud, which weighed at least 50 pounds, and to work on ladders.

 

On February 6, 2001, the employee experienced a shooting pain in her low back while lifting a bucket of drywall mud at work.  That same day, a physician=s assistant at NowCare diagnosed a lumbar strain; x-rays were read as being negative.  The employee was released to work  with restrictions on lifting, bending, pushing, pulling, twisting, turning, kneeling, squatting, and ladder climbing, but the employer was unable to offer the employee employment within such stringent limitations, and she remained off work.  A week after the injury, when the employee complained of increased symptoms, especially with straightening up and side bending, the NowCare physician=s assistant referred her for physical therapy at PTOSI.

 

The employee underwent eleven physical therapy sessions between February 19, 2001, and March 30, 2001.  In early April of 2001, QRC Joel Rhyner conducted a rehabilitation consultation and concluded that the employee was qualified for rehabilitation services.  About two weeks later, on April 24, 2001, the employee underwent an MRI scan, which the radiologist read as showing Aminimal degenerative signal at the anterior superior corners of L1 and L3,@ with Ano evidence for disc herniation or nerve root compression.@  However, the employee=s treating physician, Dr. Bryan Lynn, reported shortly thereafter that his reading of the MRI showed a Amoderate amount of facet arthritis at L5-S1@ and Amild-to-moderate amount of facet arthritis at L4-5.@

 

Also on April 24, 2001, and on April 25, 2001, the employer had the employee placed under surveillance.  Based in part on this surveillance, the employer filed an NOID, indicating that temporary total disability benefits would cease on May 1, 2001, on grounds that the employee was not cooperating with rehabilitation services and was Amisrepresenting her condition and capabilities@ to the doctors, the QRC, and the employer.  On July 13, 2001, the employee filed an objection to discontinuance, which was ruled untimely for purposes of invoking statutory expedited procedures and was therefore treated as a claim petition.^[1]

 

The employee testified that she began looking for other work, without the assistance of QRC Rhyner,^[2] in June or July 2001.  In November of 2001, she obtained a part-time job with The Children=s Place.  In the interim, in August of 2001, the employer again had the employee placed under surveillance.

 

The matter came on for hearing before a compensation judge on December 18, 2001.  Issues included whether, and if so, when, the employee had reached maximum medical improvement [MMI] from the effects of her work injury; the employee=s entitlement to temporary total disability benefits from May 2, 2001, through November 17, 2001; and whether the employee had any permanent partial disability due to her work injury.  Evidence included the employee=s medical and rehabilitation records, videotape and reports from the surveillance, and the medical opinions of Drs. Robert Wengler and Paul Cederberg.  Dr. Cederberg reported that, as of June 15, 2001, the employee had no objective findings, no disability, and no permanency related to her February 2001 work injury.  Dr. Wengler disagreed, finding a 7% impairment, related to degenerative disc disease at L5-S1, due to the work injury, and he recommended restrictions that precluded the employee from working at her pre-injury job.  Both doctors viewed the surveillance videos. 

 

In a decision issued on February 6, 2002, the compensation judge concluded, in part, that the employee=s February 6, 2001, work injury had completely resolved, with no residual disability, by June 15, 2001, in accordance with the opinion of Dr. Cederberg, and that the employee was not entitled to temporary total disability benefits from May 2, 2001, to June 15, 2001, because she had misrepresented her physical condition.  The employee 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 compensation judge found in part as follows with regard to the employee=s complaints and presentation to her healthcare providers:

 

11.  Between her date of injury and May 2, 2001, the employee consistently reported to her doctors and physical therapists that she could not stand erect in a neutral position without increased pain . . . .  On April 9, 2001, the employee had an initial rehabilitation evaluation performed by Joel Rhyner, MS, CRC.  During that initial evaluation, the employee reported that [she] was Aunable to stand up or sit up straight.@

 

Discussing the surveillance videotapes, the judge found:

 

15.   Investigators from R&D Agency took surveillance videos of some of the employee=s activities on April 24 and 25, 2001 and August 10 and 26, 2001.  By agreement of parties, condensed versions of the surveillance tapes were put in evidence instead of the uncondensed versions.  The videotape of activities on April 24 and 25, 2001 shows the employee standing upright, walking upright and moving fluidly as she ran errands including shopping at Target, getting gas, carrying plastic shopping bags with items in them, carrying grocery bags, and carrying her son.  On both April 24 and 25, 2001, with fluid movements, she picked up her son, bent forward from the waist, and with arms extended, placed him into his car seat in the back seat of the two-door car and then buckled in him.  She moved easily and fluidly as she got in and out of her vehicle more than once.  At a gas station just before 4 p.m. on April 24, with fluid movement she put gas in her car, bent from the waist to remove her son from his car seat, backed out of the car while holding him with her arms outstretched in front of her, then stood, placed her son on her left hip, and walked upright and easily as she went inside to pay for the gas.  On April 25, 2001, she was videotaped again putting her son into his car seat and taking him out of the car seat with fluid movements and no difficulty.  The employee=s actual activities as shown in Exhibit 4 are inconsistent with her description of her activities and limitations provided to her physical therapists, her treating doctors, her QRC, and Mr. Jenkins of the employer.  These inconsistencies support the conclusion that the employee actually had far greater physical capacities as of April 24, 2001 than she exhibited when she realized she was under observation by a doctor, a physical therapist, a rehabilitation provider, or supervisory staff from the employer.

 

On appeal, the employee argues, essentially, that the videotape was too brief to prove anything about the employee=s physical capabilities and that the judge misinterpreted or mischaracterized the medical records with regard to the employee=s representation to providers about her physical abilities and complaints.  We are not persuaded.

 

Medical records shortly after the employee=s injury indicate that the employee complained of being unable to stand fully erect.  Two months after the injury, in April of 2001, the employee continued to indicate to providers that it was hard to stand up straight without increased pain, with the employee=s physical therapist characterizing the employee=s continued symptoms as Alegitimate but perplexing.@  Rehabilitation records from May 4, 2001, indicate that the employee was still complaining of being unable to extend her spine, and, as the compensation judge noted, the assessment portion of the employee=s May 24, 2001, physical therapy discharge summary states that the employee exhibited Ano change in pain, range of motion, disability or function.@  Dr. Cederberg, who examined the employee three weeks later, on June 15, 2001, indicated that the videotaped surveillance suggested that the employee=s Aphysical capabilities are greater than [the employee was] leading me to believe during the history and physical examination.@  We concede that the surveillance videotapes are not dramatic and do not show the employee engaging in particularly strenuous activity.  However, we cannot say that the judge erred in concluding that that ease of motion shown on videotape was inconsistent with the complaints reported by the employee to the healthcare providers, the employee=s QRC, and the employer, as evidenced in the records submitted at hearing.  The fact that another factfinder might have concluded differently is irrelevant under the applicable standard of review.

 

Rehabilitation efforts were directed at returning the employee to work for the employer, but, as the compensation judge noted, the restrictions imposed by the treating physicians Aruled out@ the light work otherwise available at the employer.  In her memorandum, the compensation judge wrote that the Arestrictions placed on the employee by her doctors were based on the employee=s misrepresentations about her actual physical capacities.@  The gist of the compensation judge=s decision is that the employee remained off work due to her intentional misrepresentation of her condition, not due to her work injury.  In other words, the employee sabotaged her physical and vocational rehabilitation by exaggerating her symptoms.  Because the judge=s conclusion to this effect is minimally but adequately supported by the record, we affirm her denial of temporary total disability benefits from May 2, 2001, to June 15, 2001.

 

The judge=s denial of temporary total disability benefits from and after June 15, 2001, and her denial of permanent partial disability benefits, is amply supported by the opinion of Dr. Cederberg, who reported that the employee was capable of working without restrictions, and had no work-related permanent impairment or residual disability, as of that date.  The judge expressly adopted Dr. Cederberg=s opinion to this effect.

 

On appeal, the employee argues that the compensation judge erred in accepting Dr. Cederberg=s opinion because he relied on the surveillance videotape, which, the employee contends, Acannot be substantial evidence of [the employee=s] physical capabilities,@ and because the employee testified, without contradiction, that Dr. Cederberg never physically examined her, contrary to Dr. Cederberg=s report.  We suppose that the compensation judge could have accepted either argument had she chosen to do so.  However, it is the responsibility of the compensation judge, not this court, to determine the probative value of the evidence.  The arguments raised by the employee provide absolutely no basis for this court to overturn the compensation judge=s decision to accept Dr. Cederberg=s opinion.

 

Because the compensation judge was well within her authority to accept Dr. Cederberg=s opinion that the employee=s work injury had completely resolved by June 15, 2001, see Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985), we affirm the judge=s denial of permanent partial disability benefits and of temporary total disability benefits after that date.^[3]  See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).  The judge=s decision is affirmed in its entirety.