NOUMAY OUTHAAPHAY, Employee/Appellant, v. UNIVERSITY OF MINN.  HOSPS. & CLINICS, SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant.

 

WORKERS' COMPENSATION COURT OF APPEALS

MARCH 25, 2002

 

HEADNOTES

 

REHABILITATION - DISCONTINUANCE.  Substantial evidence supported discontinuance of rehabilitation where the employee failed to cooperate with rehabilitation by exaggerating the extent of her disability, where extensive rehabilitation efforts had failed to provide any benefit to the employee, and where there was little or no evidence to suggest that circumstances had changed such that the employee might benefit from continuation of rehabilitation efforts.

 

Affirmed.

 

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

Compensation Judge:  Ronald E. Erickson.

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge=s order terminating  rehabilitation services.  We affirm.

 

BACKGROUND

 

The employee, Noumay Outhaaphay, was born in 1943 in Laos.  In 1977, she left Laos and lived in a refugee camp in Thailand for three years, where she learned English.  In 1980, she immigrated to the United States, coming to Minneapolis.  After coming to Minnesota, the employee attended English language classes four hours per day for a year and then attended a Certified Nursing Assistant and Certified Technician (Central Supply) training program at Northeast Metro Technical College.

 

The employee obtained work as a nursing assistant for the Augustana Nursing Home in Minneapolis in 1982, working there for about one year.  In 1983, she began working for the self-insured employer, the University of Minnesota Hospitals & Clinics, in its Central Supply department.  Her job involved folding towels, wrapping sterilized trays and basins, and testing medical equipment.  The records submitted indicate that the employee sustained an injury to her knees in 1987, in a fall at work, which resulted in some restrictions and permanency but which is not at issue in the present proceeding.

 

On January 22, 1993, the employee sustained an admitted injury to her low back while at work for the employer, when she slipped and fell on a wet floor, landing on her buttocks.  At the time of this injury, the employee=s weekly wage was $467.60.  Following this injury, the employee complained of low back discomfort, pain radiating down the left leg, and some discomfort in the neck and upper back.  MRI scans of the cervical and thoracic spine on February 16, 1993, were read as normal, and an MRI scan of the lumbar spine on March 13, 1993, was considered unremarkable except for mild multi-level degenerative disc disease not of recent origin.  The employee received conservative treatment and returned to work in her regular job for the employer, first at two hours per day in April 1993 and eventually at full-time unrestricted work by August 4, 1993.

 

The employee was examined on behalf of the self-insured employer on March 17, 1994, by orthopedist Dr. Jerry T. Reese.  Straight leg raising was negative, no tenderness or spasm was present, heel and toe walking was performed normally, and the employee was observed to walk without any stoop or list.  However, the employee exhibited significant range of motion limitations in neck extension and in the low back.  Dr. Reese believed that a significant element of voluntary restriction of movement on the part of the employee was involved in the extent of the employee=s limitations of motion.  The employee also refused to kneel on a stool, claiming that kneeling produced left thigh and calf pain.  Dr. Reese, however, opined in his report that sciatic pain could not be produced merely by kneeling.  Dr. Reese further opined that the employee=s January 22, 1993, work injury had resulted in a temporary strain to the low back and neck which had resolved without further permanency or additional restrictions over those in place following the employee=s 1987 injury.

 

On December 5, 1994, the employee was reaching up to a high shelf at work with her right arm to get down a box when the box fell.  As she reached out to catch it, the box pulled her forward, and she experienced an onset of discomfort in the right upper back and scapular area.  On this date of injury, the employee=s weekly wage was $482.00.

 

The employee first treated for the 1994 injury with Dr. Sunhie Lee.  Dr. Lee=s treatment records for December 8, 1994, indicate complaints of sharp pain on the upper back, right side.  On December 9, 1994, Dr. Lee noted further complaints of low back pain.  Dr. Lee treated the employee for low back pain and right shoulder pain through 1995, but his records do not indicate complaints of left shoulder pain.

 

The employee began treating with Dr. Thomas Rieser at the Midwest Spine Institute in January 1995.  Her initial complaints at that time were of tingling and burning in the low back and up through the back into the neck.  She also told Dr. Rieser of pain in the left arm and the left thigh.  Dr. Rieser=s note to this effect is the first record of left arm pain in the employee following the 1994 injury.  Dr. Rieser took the employee off work for a few weeks, releasing her to light-duty work with progressing hours after February 9, 1995.  The employee apparently did not progress beyond four hours per day, working in a light-duty job for the employer in Ainstruments and linen.@  By April 6, 1995, the employee=s primary complaints to Dr. Rieser were of shoulder and arm symptoms.  Dr. Rieser at that time opined that the employee=s shoulder symptoms were muscular in nature with some element of deltoid bursitis.  On July 27, 1995, Dr. Rieser attributed the shoulder complaints to tendinitis.

 

On September 12, 1995, the employee met with Michael G. Stern, a qualified rehabilitation consultant [QRC], for an initial rehabilitation consultation.  Mr. Stern opined that the employee was qualified for rehabilitation services and recommended the preparation of a rehabilitation plan.  A plan was subsequently prepared, contemplating a return to work with the same employer in a modified job, but the plan was not signed by the self-insured employer.

 

An MRI scan of the employee=s cervical spine on September 13, 1995, showed minimal bulging at C5-6 and minimal partial thickness tears at C6-7 and C7-T1, which Dr. Rieser indicated was not a significant change from the prior scan in 1993.  On November 27, 1995, Dr. Rieser authorized the employee to work eight hours per day, with restrictions on lifting and carrying over twenty pounds.  Due to the employee=s continued complaints, however, Dr. Rieser referred the employee to Dr. Alan Bensman, who saw her on December 6, 1995.  Dr. Bensman took the employee back off work.

 

The employee was involved in a non-work motor vehicle accident on January 3, 1996, following which she was seen at the emergency room at North Memorial Medical Center complaining of neck pain and left-sided chest pain.  Thereafter she continued treating with Dr. Bensman for both conditions.

 

In December 1995, the employee=s QRC had noted that the employer had suggested he provide disability case management services rather than full rehabilitation and placement services.  On January 12, 1996, the QRC reported that the employee=s attorney had no objection to this approach and that he would proceed in that fashion.  The QRC performed an on-site job analysis of the employee=s central service technician position with the employer, which revealed that the employee=s regular job involved frequent twisting and bending and lifting up to fifty pounds continuously.  Even the modified job that the employee had recently been performing required constant arm movements.  On January 30, 1996, Dr. Bensman opined that the employee could not return to her central service technician job.  In February 1996, the employee reported to the QRC that the employer was now disputing primary liability for ongoing benefits. 

 

The employee was again evaluated by Dr. Reese on behalf of the self-insured employer on April 18, 1996.  Dr. Reese saw no abnormality of gait or any evidence of a list or stoop.  He found no tenderness in the employee=s neck, although mild to moderate spasm was present in the paracervical and trapezii soft muscles.  Neck flexion was close to normal, but extension was quite limited.  Dr. Reese observed some voluntary enhancement of the limitation by the employee, but he noted that the neck examination was nonetheless not normal.  He found no neurological abnormality in the employee=s upper extremities.  The employee=s low back showed diffuse paralumbar spasm, and low back range of motion was limited, but Dr. Reese thought considerable voluntary enhancement to be present.  There was no straight leg raising abnormality.  Dr. Reese diagnosed a chronic cervical strain and a chronic lumbar strain.  He opined that maximum medical improvement had been reached from the 1993 work injury by August 4, 1993, and from the 1994 work injury by November 27, 1995.

 

With respect to the employee=s disability, Dr. Reese opined that the employee was able to work full time under the restrictions given by Dr. Rieser between November 27, 1995, and the date of the employee=s motor vehicle accident, after which she was temporarily totally disabled from work for a period of time solely as a result of that non-work injury.  As of the date of his examination, he opined that the employee was capable of full-time work, with restrictions against lifting over twenty pounds and against repetitive twisting, bending, stooping, and lifting.  He also recommended that the employee work in a position permitting frequent changes of position between standing/walking and sitting.  Dr. Reese rated the employee=s neck-related permanent partial disability at 3.5% of the whole body, fifty percent of which he attributed to the 1994 work injury and fifty percent of which he attributed to the 1996 motor vehicle accident.  He rated the employee=s low back-related whole body impairment at 3.5%, attributable solely to the 1994 work injury.

 

In May 1996, the employee=s QRC recommended that formal rehabilitation services be implemented to include vocational rehabilitation.  On May 20, 1996, the QRC formulated a rehabilitation plan aimed at a return to work with a different employer.

 

The evidence submitted at the hearing below does not include any rehabilitation reports or medical records from June 1996 through October 1998.  However, from narratives and discussions in other evidence, it appears that the employee never returned to work with the self-insured employer after early 1996.  Between September 1997 and February 1998 the employee worked for the College of St. Catherine as a cashier at $6.50 per hour.  It is not clear from the record before us whether this job was full or part time.  The employee eventually left this job claiming difficulties with her left arm.  She subsequently worked part-time as a cashier at the Data Card Company, but she left this job because of claimed physical difficulties brewing coffee and cleaning the coffee pot.  After this the employee took a job working three hours per day as a cashier for Viking Foods, a concession service at the state capitol building, but she quit as soon as she learned that the job entailed cleaning the coffeepot.

 

During this same period, the employee and the self-insured employer entered into a stipulation for settlement in November 1996, closing out the employee=s claims for temporary benefits through June 25, 1996.  The stipulation recited that the parties did not agree on the nature and scope of the 1994 work injury, in that the employee=s claim of injury to her neck was contested by the employer.  The employer also alleged that the 1993 and 1994 work injuries were temporary in nature and had fully resolved.  A second stipulation for settlement was reached in May 1998, settling the employee=s claims for temporary benefits through February 24, 1998, settling an intervention claim for medical expenses, and settling the employee=s claims for permanent partial disability compensation for injuries to her lumbar and cervical spine, each at 10% of the whole body.

 

The rehabilitation records in evidence resume with a progress report by QRC Stern on November 13, 1998.  On that date, the QRC noted that the employee had followed up on a job lead provided for work as a caregiver/companion through Home Instead Senior Care, which had expressed an interest in hiring the employee for work paying from $6.00 to $7.00 per hour, three hours per day.  However, the employee was then under a severe driving restriction that was hampering her placement; she needed to work within fifteen minutes of her home and could not transport clients or do their grocery shopping,.  The QRC expressed the opinion that the employee did not appear to be capable of working beyond short-term, sporadic employments and recommended that consideration be given to closing rehabilitation services.

 

On January 8, 1999, the QRC reported that the employee had worked for some friends baby-sitting in their home two and a half hours a day for about a week, earning $80.00.  She was still waiting to begin a job at Home Instead, providing companionship for a ninety-four-year-old woman in a nursing home, sixteen hours per week on Saturdays and Sundays.  The QRC expressed doubt whether the employee would be able to work beyond her current restrictions of three hours work per day with a fifteen-minute driving restriction.  He believed she was probably permanently totally disabled.

 

The employee filed a claim petition on February 24, 1999, alleging permanent total disability.  The self-insured employer answered, denying that the employee was permanently and totally disabled and disputing the nature of the 1994 work injury.

 

On February 5, 1999, the QRC reported that the employee had not yet begun any work for Home Instead, as most jobs had required travel beyond fifteen minutes to reach the job location.  Some jobs had been ruled out because they involved light housekeeping, while the employee had reported being unable to perform her own housekeeping tasks at her own residence.  The employee=s treating physician, Dr. Bensman, had disapproved one of the offered jobs, which had required the employee to perform some cooking, laundry, and light housekeeping.  On April 2, 1999, the QRC  reported that the employee had started a job with Home Instead on March 15, 1999, but had quit on March 17, 1999, as she had to drive more than fifteen minutes in rush hour traffic to get there and because light cooking she was to perform turned out to involve American cooking rather than Laotian cooking.  The QRC again recommended rehabilitation closure.

 

The employee was seen by orthopedist Dr. Paul Wicklund for a medical examination on behalf of the self-insured employer on May 8, 1999.  Dr. Wicklund diagnosed multi-level degenerative changes in the lumbar spine, chronic neck and left shoulder pain, and chronic low back pain.  In his opinion, the employee was not permanently and totally disabled but was able to work full time within restrictions against lifting more than twenty pounds or performing repetitive twisting of the neck.  He placed no restrictions whatever on the employee=s ability to drive.

 

On May 25, 1999, the employee was seen at the request of the self-insured employer by vocational expert Richard W. VanWagner for evaluation of her employability.  The employee was unable to complete the evaluation entirely on that date and returned on May 27, 1999, and August 23, 1999, to complete the evaluation.  Mr. VanWagner noted that the employee

 

subjectively reports problems with both shoulders.  She states that she is unable to drive more than fifteen minutes or sit more than fifteen minutes.  However, she has ridden to Texas on at least a couple of occasions.  She sat for 1 2 hours during testing at Novaeon.  She stated that she can=t reach above shoulder level.  She combs her hair with her right hand.  She is able to open jars.  Deviation in her grip testing are noted and appear to be significant.  She uses tongs to reach into the washer and dryer and remove clothes.

 

[The employee] presented as a very helpless person who was ostensibly in a great deal of pain while she was at our office on three different occasions.  She was noted to walk extremely slowly and to lean against office partitions when standing and had numerous further complaints of pain.

 

Mr. VanWagner noted that different physicians had offered different restrictions, with the employee=s treating physician restricting her to three hours per day and no driving over fifteen minutes, while others found her capable of working full time with no restrictions on driving.  He opined that, regardless of which restrictions were applicable, the employee was not permanently totally disabled and that specific work was available that she could perform within fifteen minutes of her home.

 

A hearing was held before a compensation judge of the Office of Administrative Hearings on December 14, 1999.  The issues before the judge were the nature and extent of the 1994 work injury and whether the employee was permanently totally disabled as a result of her 1993 and 1994 work injuries.  The compensation judge found that the employee had sustained permanent injury to the low back and neck due to the December 5, 1994, work incident but that she had failed to prove injury to her left shoulder or left arm.

 

At the hearing, the self-insured employer offered surveillance evidence of the employee=s activities on March 2, 1999, and on August 28, 30, and 31, 1999, as well as a supplemental report from Richard VanWagner, who noted that the level of function that the employee exhibited in the surveillance videotapes was in direct conflict with that which she described and exhibited during the three days of his vocational evaluation.  Based on the videotapes, he opined that the employee had been less than truthful with him and that she was able to work either full or part time in a cashier or convenience store position.  The compensation judge found that the employee was not a credible witness and was not permanently and totally disabled but was capable of working eight hours per day consistent with the opinion of Drs. Reese and Wicklund and contrary to the stricter restrictions offered by Dr. Bensman.  No appeal was taken from the judge=s Findings and Order, which was served and filed on February 24, 2000.

 

Subsequent to the issuance of the judge=s Findings and Order, the employee=s QRC recommended scheduling placement assistance to help the employee find full-time work.  On November 9, 2000, the employee prepared a rehabilitation plan amendment for services to assist the employee in a job search.  However, on December 4, 2000, the employer filed a rehabilitation request seeking to change the employee=s QRC from Michael Stern to Jenny Scheer.  On January 16, 2001, the employer filed an amended rehabilitation request, seeking termination of rehabilitation services or, should rehabilitation services be continued, a change of QRC made in the alternative.  On February 2, 2001, the QRC reported that the employee had found a few temporary and part time jobs since the hearing at the Office of Administrative Hearings, including some packaging and assembly work through ABC Temporaries.  He continued to reiterate his willingness to provide placement assistance.

 

An administrative conference was held on the employee=s rehabilitation requests on February 13, 2001.  On February 21, 2001, pursuant to Minn. Stat. ' 176.106, a rehabilitation specialist at the Department of Labor and Industry issued an order terminating rehabilitation, from which the employee filed a request for formal hearing on March 5, 2001.

 

The employee, accompanied by her QRC, was seen by Dr. Bensman on February 28, 2001.  She reported that she had been doing assembly work through a temporary service, with the most recent assignment lasting about two weeks, and had experienced an increase in left arm symptoms.  She also reported feeling significantly depressed.  Dr. Bensman took the employee off work until her acute symptoms might subside.  He also referred the employee  to a psychologist, John Patrick Cronin, Ph.D., for evaluation.

 

On March 30, 2001, the QRC reported that job search efforts had been placed on hold pending further information on the employee=s psychological condition and due to the opposition of the self-insured employer.

 

Dr. Cronin saw the employee on several occasions, and on May 4, 2001, he wrote a letter opining that the employee met diagnostic criteria for Apain disorder associated with both psychological factors and a general medical condition, with depression.@  He recommended that the employee discontinue all job search activities until further notice.

 

On May 18, 2001, the self-insured employer=s rehabilitation request came on for hearing before a compensation judge of the Office of Administrative Hearings.  Following the hearing, the judge found that the employee had failed to cooperate with rehabilitation services and that she would be unlikely to benefit from further vocational rehabilitation efforts.   He ordered termination of ongoing rehabilitation.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's  findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must 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).  Factfindings may not be disturbed, even though this 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

 

I.  Discontinuance of Rehabilitation

 

Minnesota Statutes ' 176.102, subd. 8, provides in part that a rehabilitation plan may be suspended, terminated, or altered upon request by the employer upon a showing of good cause, which the statute defines as follows:

 

(a) a physical impairment that does not allow the employee to pursue the rehabilitation plan;

(b) the employee=s performance level indicates the plan will not be successfully completed;

(c) an employee does not cooperate with a plan;

(d) that the plan or its administration is substantially inadequate to achieve the rehabilitation plan objectives;

(e) that the employee is not likely to benefit from further rehabilitation services.

 

Minn. Stat. ' 176.102, subd. 8.  In the present case, the compensation judge expressly found that the employee had failed to cooperate with her rehabilitation plan and that the employee=s level of performance in previous post-injury positions indicated that it was unlikely that a rehabilitation plan would be successfully completed.  The judge found that the rehabilitation to date had been Aessentially futile@ and that the employee was not likely to benefit from further rehabilitation services.

 

Although the employee has not couched her appeal in terms of substantial evidence, we note that the compensation judge=s findings appear to have adequate support in the record.  The compensation judge reasonably relied on a prior unappealed Findings and Order issued by Compensation Judge Nancy Olson that included findings that the employee was and had been capable of working full time within the restrictions offered by Dr. Reese and Dr. Wicklund, that the employee had misrepresented her physical abilities during vocational and medical evaluations and to her treating physicians, that the employee was not a credible witness, and that her subjective complaints were not a reliable basis for determining her abilities.  In addition, there was undisputed evidence that the employee had, on the basis of such subjective complaints or of restrictions based wholly on such subjective complaints, repeatedly quit light-duty jobs that would have been within the restrictions offered by Dr. Reese and Dr. Wicklund, often on the first or second day of work.  The evidence in this case reasonably supports the finding that the employee=s exaggeration of her symptoms and disabilities has drastically impaired the success of her rehabilitation.  For example, the employee=s subjective claim of an inability to drive for more than fifteen minutes has eliminated a majority of the positions for which the employee would otherwise have qualified.  Despite an expenditure of over $17,000 for rehabilitation activities, the employee has not returned to work on a continuing basis in even the extremely light-duty part-time positions available to her.

 

The compensation judge could reasonably find that the minimal evidence offered by the employee with respect to the period subsequent to the prior hearing in the case did not demonstrate any significant change in the employee=s level of cooperation with rehabilitation.  While there was some evidence to indicate that the employee had worked at brief job assignments through a temporary agency, that evidence was not sufficiently compelling to require a finding that the employee was now prepared to fully cooperate with rehabilitation efforts or that such efforts, which had failed to benefit the employee over a protracted period and despite significant expenditures, would now begin to prove beneficial. 

 

The employee contends on appeal that rehabilitation should not have been terminated, arguing that the employee continues to have significant work restrictions and a loss of earning capacity from her work injuries, such that rehabilitation services are clearly needed.  It is arguably true that the employee meets some of the threshold requirements for consideration for rehabilitation services.  We note, however, that the issue in this case is not one of the employee=s qualification for the initiation of rehabilitation services, but rather whether ongoing services long in place may be discontinued on the basis of the employee=s non-cooperation, the unlikelihood of success of the plan, and the unlikelihood of further benefit to the employee. 

 

The employee next argues that the compensation judge essentially penalized the employee for asserting a legal claim for permanent total disability benefits by, in essence, finding the assertion of such a claim to constitute non-cooperation with rehabilitation.   We note that the compensation judge=s finding does contain some language which might be misconstrued in support of the employee=s argument: specifically, the compensation judge found at Finding 6 that Athe employee did not cooperate with the rehabilitation plan in that she represented that she was permanently and totally disabled from all employment, wherein [sic] she was found by Judge Olson to be capable of sustained gainful employment.  The representation that she was permanently and totally disabled was a gross exaggeration of her symptoms and limitations.@  However, it is clear from our overall reading of the Findings and Order and its supporting memorandum, as well as from our consideration of the prior unappealed findings of Judge Olson, that the compensation judge was not here finding that the assertion of a legal claim of permanent total disability constituted non-cooperation with rehabilitation.  Rather, the non-cooperation was the employee=s conduct of deliberately misrepresenting the nature of her abilities and symptoms to her medical providers, rehabilitation consultants, and post-injury employers.

 

Finally the employee argues that the judge=s Findings and Order improperly Abars any future claim for rehabilitation.@  While we agree that the compensation judge would not have authority to prospectively rule on future rehabilitation claims by the employee, we see nothing in the compensation judge=s findings and order that goes beyond termination of the current rehabilitation  efforts.  In addition, language in Finding 9 specifically notes that the employee has the right to raise claims of entitlement to further rehabilitation services at some future time.   We conclude that the employee=s argument that the compensation judge exceeded the scope of his jurisdiction to decide possible future entitlement to rehabilitation services is without merit.

 

II.  Costs

 

The employee also appeals from that portion of Order 2 that states that Aeach of the parties herein are responsible for their respective costs.@  The employee argues that, as no cost petition had been submitted to the compensation judge, this issue was not ripe for determination and the Order is premature.  Pursuant to Minn. Stat. ' 176.511, subd. 2, an award of costs may be made only to the prevailing party.  As the employee did not prevail on the single issue before the compensation judge, the issue is moot.