XUAN T. NGUYEN, Employee, v. STARKEY LABS. and ACE USA/GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 19, 2002

 

HEADNOTES

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, the employee=s medical records, and the employee=s testimony, support the compensation judge=s finding that the employee has physical restrictions causally related to her work injury and therefore that she is entitled to temporary partial disability benefits.

 

Affirmed.

 

Determined by Rykken, J., Pederson, J., Stofferahn, J.

Compensation Judge: Peggy A. Brenden.               

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee=s low back pain limits her ability to work for extended periods of time, and that the medical restrictions imposed by her treating physician, Dr. David Holth, are reasonable, necessary and causally related to the employee=s work injury on September 17, 1998.  We affirm. 

 

BACKGROUND

 

On September 17, 1998, Ms. Xuan Nguyen, the employee, sustained an admitted injury to her low back and neck in the course of her work activities for Starkey Laboratories, the employer.  At the time, the employer was insured for workers= compensation liability by ACE USA/Gallagher Bassett Services, the insurer.  On that date, the employee earned a weekly wage of $454.40.

 

The employee began working for the employer=s predecessor company in approximately 1980, and continued to work there on a full-time basis.  On September 17, 1998, the employee was about to sit down on her chair when it moved, causing the employee to land on the floor.  She landed with her buttocks on the floor and struck the chair with her right shoulder.  She first sought treatment with Dr. Timothy Regan of Multicare Associates of the Twin Cities, initially reporting low back pain, with pain radiating into her upper back and right shoulder, and at times into her right arm.  Dr. Regan diagnosed the employee as having musculoligamentous back pain and released her to return to work.  On October 8, 1998, the employee was examined by Dr. David Holth at Multicare Associates.  On that date, she reported that her symptoms had worsened and that she had difficulty sitting at work. Dr. Holth diagnosed her with Alumbar strain, unimproved,@ and recommended that the employee avoid prolonged sitting and standing, and that she rest her back as much as possible over the next three to four days.

 

The employee continued to consult with Dr. Holth and continued to report low back pain.  Dr. Holth recommended physical therapy, which the employee obtained.  On March 16, 1999, the employee reported that her low back pain had worsened and that the physical therapy Adid not seem to help.@  By March 25, 1999, Dr. Holth diagnosed a Acontusion coccyx and sacrum with persistent lumbar pain with radiation to legs.  Headaches, most likely muscle tension in origin.@  Dr. Holth referred the employee to Dr. Orrin Mann, who examined the employee on June 3, 1999.  Dr. Mann diagnosed the employee as having A1.  Chronic low back pain secondary to a fall nine months ago with pelvic joint dysfunction noted today (right inferior ilium rotation and right sacral torsion).  2.  Myofascial pain probably related to the constant buffing.  3.  Possible segmental dysfunction of the thoracic or cervical spine or rib cage . . . .@   Dr. Mann reexamined the employee on June 9, 1999, at which time the employee reported that she was too sore to work and could not sit or stand due to headaches and back pain.  Dr. Mann stated that she Ahas no neurologic symptoms in her arms and legs at this time.@  He also referred to Apain behavior without a definable cause@ and advised that he would Anot change her restrictions as there is not a medical justification to do so.@  Dr. Mann referred the employee for an MRI of her entire spine.

 

On June 17, 1999, the employee underwent MRI scans to her cervical spine, thoracic spine, and lumbar spine.  The MRI of the cervical spine noted small insignificant central osteophytes/disc bulges at the C3-4 and C4-5 levels and a small ventral osteophytic bar/disc bulge that extended slightly more dorsally on the right at the C5-6 level.  The MRI of the thoracic spine was normal.  Findings on the MRI of the lumbar spine noted Aminimal low grade bulging of the L4-5 intervertebral disc.@  The employee consulted Dr. Mann on June 21, 1999, to discuss the results of the MRI scans.  In his chart note of that date, Dr. Mann opined that the employee has Aidiopathic global back pains@ and that a Apsychosocial element exists.@  Dr. Mann stated that he had no medical justification for work restrictions and so released the employee to work without restrictions, stating that the employee was at maximum medical improvement (MMI) with no ratable permanency.

 

On July 1, 1999, the employee consulted Dr. Gary Johnson at NorthWorks Occupational Health Services, who diagnosed the employee as having subacute cervical, thoracic and lumbar pain.  He released the employee to work without restrictions.  He also referred the employee for a trial of acupuncture at Medical Advanced Pain Specialists (MAPS).  On August 9, 1999, the employee underwent x-rays of the pelvis and coccyx, which showed no sacral fractures but did indicate an irregularity of the coccyx, raising the possibility of a nondisplaced fracture.

 

The employee continued to treat with Dr. Johnson through at least early February 2000.  Dr. Johnson did not restrict the employee=s hours but did recommend that the employee stand while working and stretch for two minutes every half hour.  According to Dr. Johnson=s chart note of February 4, 2000, the employee continued to report lumbar, sacral and coccygeal pain.  The employee asked Dr. Johnson to restrict her work hours to six hours or less per day, and stated that she felt it was Aunfair@ for her to continue working her usual hours.  Dr. Johnson again stated that his examination findings were normal.  He stated that he was Aunable to find a cause for the patient=s pain.@  By April 20, 2000, Dr. Johnson determined that the employee had reached MMI and had sustained 3.5% permanent partial disability as a result of her work injury.

 

In April 2000, the employee underwent a discography at MAPS which apparently showed some moderate degenerative disc disease.^[1]  The employee consulted Dr. Holth again on April 25, 2000, complaining that it was difficult to maintain a regular work schedule.  Dr. Holth restricted the employee to six-hour days.  On May 16, 2000, he reduced the employee to work four hours per day, a restriction still in place at the time of the formal hearing on October 16, 2001.

 

At the referral of the employer and insurer, the employee was examined by Dr. Larry Stern on November 15, 2000.  According to Dr. Stern=s report, the employee complained of constant pain in her low back radiating to her tail bone, and occasional radiation into her left leg.  At that time, she took Ultram for pain medication.  Dr. Stern diagnosed nonphysiologic low back pain, and concluded that the employee needed no work restrictions in terms of either hours or actual physical work restrictions.  He concluded that any lumbar strain she would have sustained as a result of her injury on September 17, 1998, Awould have improved by now@ and that Aher current complaints and alleged problems cannot be reasonably said to have been caused by the September 17, 1998 incident.@  Dr. Stern concluded that the employee had reached MMI, that no ongoing medical care or treatment was reasonable or necessary, and that the employee was not a reasonable candidate for a proposed IDET procedure.  He also determined that the employee had no Afindings sufficient to justify a 3.5%@ permanent partial disability to the body as a whole as a result of her September 17, 1998, injury.  In his report, Dr. Stern stated as follows:

 

In summary, the patient has had extensive diagnostic work ups which have not revealed any significant abnormality.  Her discogram was in some respects positive, but the disc spaces are well preserved and in light of her other scans, I do not feel it demonstrates a significant abnormality.  More importantly, her physical examination today showed signs of intentional exaggeration and symptom magnification.  In my opinion, she does not have any objective findings of a significant orthopedic problem involving her lower back.  Any surgical procedure is, in my opinion, doomed to failure and should not be considered.

 

On July 25, 2000, the employee filed a claim petition claiming entitlement to an underpayment of temporary partial disability benefits since September 17, 1998, and permanency benefits based on 3.5% permanent partial disability of the body as a whole.  In its answer to the claim petition, the employer and insurer denied that the employee was entitled to wage loss benefits or permanent partial disability benefits as a result of her September 17, 1998 injury.

 

On March 5, 2001, Dr. Mark Engasser examined the employee as a neutral examiner pursuant to Minn. Stat. ' 176.155, subd. 2.  Dr. Engasser diagnosed lumbar contusion and myoligamentous strain, cervical myoligamentous strain, and nonorganic pain elements.  He concluded as follows:

 

I feel the patient=s subjective complaints far outweigh any objective findings on examination.  Unfortunately, I feel that she has a deep seated primary pain problem which affects her perception of disability and physical capacity.  I do not feel there is any reason that she could not work on a full-time basis.  Based on her description of her job duties, I feel that she could work on a full-time basis.  I feel it is important for her to have a proper ergonomic work station. It is almost impossible to indicate any restrictions based on her primary pain problem. I do feel that due to her pain complaints, she could work on a sedentary to light duty basis with a 10-pound lifting limit and only occasional bending, stooping, squatting and lifting.  I would not limit her with respect to sitting, standing and walking, although I feel that she should be permitted to stand and stretch every hour for 2 or 3 minutes.

 

Dr. Engasser recommended against any further injections, therapeutic procedures and surgery.  He determined that the employee had sustained no permanent partial disability as a result of her injury, and stated that AI feel that she has a primary pain problem which would be best addressed from a psychologic standpoint and not with additional diagnostic studies or therapeutic procedures.@

 

In a report dated June 8, 2001, Dr. Holth outlined the employee=s medical treatment and diagnostic testing since her 1998 injury, including x-rays, MRI scants of her spine, a CT scan of her pelvis, discography, physical therapy, epidural injections, Ultram for pain control and a TENS unit.  He recommended against any further diagnostic studies or surgical treatment, but stated that the employee might benefit from a pain rehabilitation program.  He concluded that she had reached MMI, and assigned a permanency rating of 3.5% permanent partial disability of the whole body.    He stated as follows:

 

It is my opinion that Miss Xuan Nguyen sustained a myofascial strain to her lumbar spine as a result of her fall on 09/17/1998.  I feel that she has had ongoing chronic pain as a result of her accident.  She has had very minimal objective findings other than intermittent paralumbar spasm.  I do not feel she has any significant intervertebral disk problem or radiculopathy.  I do feel that Miss Nguyen does exhibit some significant pain behavior and also exaggerations of her symptoms, however, in my opinion she does have an ongoing chronic pain in the lumber area, and though her objective findings are minimal, I do not feel her pain is purely psychological.

 

*  *  *

 

I feel that unless Miss Nguyen has improvement in her pain control at a pain clinic program, that she should continue to be limited in her daily work activities, and would recommend that she continue to work 4 hour days with the ability to change position as needed, and to avoid repetitive bending and lifting.

 

A formal hearing was held to address the employee=s claim petition on October 16, 2001.  In Findings and Order served and filed November 26, 2001, the compensation judge found that the work restrictions imposed by Dr. Holth were reasonable, necessary and causally related to the employee=s work injury of September 17, 1998, and that the employee was entitled to temporary partial disability benefits as claimed but denied the employee=s claim for permanent partial disability.  The employer and insurer appeal from the award of temporary partial disability benefits.

 

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 and insurer appeal from the compensation judge=s finding that the employee=s low back pain limits her ability to work for extended periods of time and that the restrictions imposed by Dr. Holth are reasonable, necessary and causally related to the employee=s work injury on September 17, 1998.  They argue that this finding is clearly erroneous and unsupported by substantial evidence, and that the compensation judge failed to use the Apreponderance of the evidence@ standard in reaching her findings.

 

A[I]n order to recover workers= compensation benefits, the employee must establish that his work-related injury is a substantial contributing factor to his current disability.@  Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992).  Even though a medical opinion does not have to express absolute certainty, the employee must still sustain his or her burden of proving causal relationship by a preponderance of the evidence.  See Schopf v. Red Owl Stores, Inc., 323 N.W.2d 8091, 803, 35 W.C.D. 216, 220 (Minn. 1982).  In order to demonstrate entitlement to temporary partial disability, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W. 2d 451, 29 W.C.D. 86 (1976).           

 

The parties stipulated that the employee sustained an injury to her low back and neck that arose out of and in the course of her work activity for the employer on September 17, 1998.  At unappealed Finding No. 2, the compensation judge found that A[b]efore September 17, 1998, the employee had no symptoms or limitations in her low back or neck.@  On appeal is Finding No. 5, which states as follows:

 

The employee has had continuous pain in her low back since the September 17, 1998 work injury.  Low back pain currently limits her ability to work for extended periods of time.  The restrictions presently imposed by Dr. Holth are reasonable, necessary and causally related to the employee=s work injury on September 17, 1998.

 

In her memorandum, the compensation judge outlined the basis for her findings, stating as follows:

 

There is no physical explanation for the employee=s continued low back pain.  The evidence, however, persuades me she nonetheless has low back pain, that pain limits her ability to work and is caused, in substantial part, by the September 17, 1998 work injury.  The onset of symptoms immediately following the September 17, 1998 work incident, the persistence of the symptoms since that time and the opinion of Dr. Holth form the basis for my decision regarding causation. The employee=s long working relationship with the employer, her motivation to provide for her family and her testimony regarding her low back symptoms persuade me she is not malingering.

 

(Memo., p. 3.)

 

The employer and insurer argue that the compensation judge erred in awarding temporary partial disability benefits, in reliance upon the medical opinion of Dr. Holth, the only  physician to assign limited work hours to the employee.  The employer and insurer argue that the compensation judge gave no indication as to why she relied on Dr. Holth=s opinion regarding work restrictions when the employee=s other treating physicians, as well as Dr. Stern and Dr. Engasser, Afound nothing wrong with the employee=s back and could not explain her subjective complaints of pain.@  (Er/Insr Brief, p. 12.)

 

We do not agree.  It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony, and A[w]here more than one inference may reasonably be drawn from the evidence, the compensation judge=s finding shall be upheld.@  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).  The compensation judge was well within her authority to rely upon the medical opinion of one of the employee=s treating physicians, Dr. Holth, in reaching her conclusion that the employee remains temporarily partially disabled, and did not err in relying upon Dr. Holth=s opinion.  In addition, in her memorandum the compensation judge emphasized the persistence of the employee=s symptoms since September 17, 1989, as testified to by the employee and as consistently reported to Dr. Holth throughout her consultations with him.

 

The employer and insurer also argue that the compensation judge did not indicate why she relied upon Dr. Holth=s opinion concerning work restrictions and yet expressly relied on the opinions of Drs. Engasser and Stern concerning the level of permanency sustained by the employee.  We disagree.  In her memorandum, the compensation judge outlined the basis for her conclusions.  In addition, A[a] compensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions.@  Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W..2d 763, 767 (Minn. 1980) (a factfinder generally Amay accept all or only part of any witness= testimony@)).  The compensation judge could reasonably rely on various portions of the medical opinions of Drs. Holth, Engasser and Stern in reaching her conclusions on the employee=s work restrictions and level of permanent partial disability.

 

It is apparent that the compensation judge=s findings are based primarily on her assessment of the employee=s credibility.  The compensation judge referred to the immediate onset of symptoms following the employee=s work-related injury and the persistence of symptoms thereafter.  She acknowledged the absence of a physical explanation for the employee=s continued low back pain.  Nonetheless, she accepted the employee=s credibility and concluded that her 18-year working relationship with the employer, as well as her testimony regarding her low back symptoms and the difficulties they caused her in performing her work, persuasively demonstrated that the employee was not malingering.  It is the trier of fact=s responsibility to assess the credibility of a witness.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220, 225 (Minn. 1989).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  In addition, as a general rule, an employee=s credible testimony alone constitutes sufficient evidence to support a compensation judge=s finding that the employee has a disability which restricts or limits that employee=s ability to perform work.  See, e.g., Brening v. Roto-Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975) (compensation judge may rely upon an employee=s testimony to determine the severity of the employee=s symptoms and the limitations thereby placed upon the employee=s physical activities).

 

There certainly is evidence in the record to support the employee=s and insurer=s position.  The compensation judge also acknowledged that the objective medical evidence is limited, and denied the employee=s claims for permanency benefits.  However, the issue on appeal is whether there is substantial evidence of record to support the compensation judge=s findings.  Where evidence is conflicting or more than on inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  In light of the evidence taken as a whole, including the employee=s medical records and her testimony, and with deference to the compensation judge=s assessment of the employee=s credibility, we conclude that the compensation judge=s determination that the employee remains temporarily partially disabled from employment as a substantial result of her work-related injury is supported by substantial evidence, and is not clearly erroneous, and therefore must be affirmed.