SEAN PETERS, Employee, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MANAGEMENT SERVS., Employer/Appellant, and CARPENTERS and JOINERS HEALTH & WELFARE FUND, Intervenor, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 19, 2002
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including medical opinion, medical treatment records and the employee=s testimony, supports the compensation judge=s finding that the employee sustained a personal injury to his low back on August 13, 1999.
WAGES - CONSTRUCTION INDUSTRY. The evidence adequately supports the compensation judge=s determination that the employee was working in the construction industry on January 25, 2000, and was entitled to an imputed daily wage under Minn. Stat. ' 176.011, subd. 3.
WAGES - BENEFIT PAY. Where there was no evidence that $1.82 per hour paid to the union vacation fund was taxable to the employee, and there was evidence that the union maintained control over the availability and use of the vacation pay, the payment to the union was not includable in the employee=s weekly wage, and the calculation of the employee=s wage on January 25, 2000, must be modified.
TEMPORARY BENEFITS - WORK RESTRICTIONS. Substantial evidence, including the employee=s testimony, supports the compensation judge=s determination that the surveillance videotape was not an accurate portrayal of the employee=s overall level of functioning in the summer of 2000. Substantial evidence also supports the compensation judge=s finding of permanent restrictions consistent with those assigned by Dr. Boxall after a review of the surveillance tape.
PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. The medical records of Dr. Anderson and Dr. Hipp provide substantial evidence to support the compensation judge=s finding that the employee sustained a seven percent permanent partial disability to the body as a whole.
Affirmed as modified.
Determined by Johnson, C.J., Wilson, J., and Rykken, J.
Compensation Judge: Jennifer Patterson
OPINION
THOMAS L. JOHNSON, Judge
The self-insured employer appeals the compensation judge=s findings that the employee sustained a work-related injury on August 13, 1999; that the employee was entitled to an imputed weekly wage based on work within the construction industry; that the employee=s weekly wage should include payments to the union vacation fund; that a surveillance videotape of the employee did not reflect the employee=s overall functional limitations during the summer of 2000; that the employee sustained a seven percent permanent partial disability; and that the employee had permanent restrictions consistent with those assigned by Dr. Boxall. We affirm, as modified.
BACKGROUND
Sean Peters, the employee, worked as a carpenter beginning in 1991. In 1995, he joined the Carpenter and Joiners Union and maintained his membership in that union through the date of the hearing. The employee went to work for the University of Minnesota in 1997. On Friday, August 13, 1999, the employee was asked to get into a locked office because a professor had locked herself out. The employee went to an adjacent office, lifted out the ceiling tiles, crawled through the duct work and dropped down into the locked office. On the way down, the employee testified he hit his back on a bookshelf, rolled to his left and landed against the door. The employee stated he felt he twisted his back a bit and he had pain in his low back. The employee reported to Dana Stanke, a night supervisor, that he had Atweaked my back somewhat, or twisted it.@ (T. 43.) The employee then prepared an incident report in which he described his injury as a back strain. The self-insured employer denied liability for an injury on August 13, 1999. In an unappealed finding, the compensation judge found the employee=s wage on August 13, 1999 was $1,044.62.
The employee continued to work at his regular job following the August 1999 incident. He returned to work on Monday, August 16, 1999, and did not complain to anyone of back pain. That day, Rick Swanson, the employee=s supervisor, asked the employee how his back was and the employee told him he was fine. After about two weeks, the employee testified he felt his back continued to stiffen. The employee spoke with Mr. Swanson on August 27, 1999, and asked if he could seek medical care. Mr. Swanson then prepared a second incident report describing the injury as Aback spasms, pain in leg.@ (Pet. Ex. D.) On August 27, 1999, the employee saw Dr. James L. Anderson at HealthWorks complaining of low back pain with radiation into his thigh. The employee also gave Dr. Anderson a history of prior back injuries, the most recent on February 13, 1999. The doctor diagnosed a lumbar strain with right sciatica, prescribed a muscle relaxant and physical therapy and released the employee to return to work, with restrictions. On August 31, 1999, the employee went to the emergency room at Lakeview Hospital because of increasing low back pain with radiation down his right leg. On September 2, 1999, the employee told Dr. Anderson his pain was worsening. The diagnosis remained lumbar strain with right sciatica. Dr. Anderson limited the employee to sedentary activity.
The employee next saw Dr. Charles Hipp at the Stillwater Medical Group on September 3, 1999. The employee gave the doctor a history of his August 13, 1999 injury and complained of back pain which Adramatically worsened in the week.@ (Pet. Ex. G.) On examination, the doctor noted a marked loss of normal lordosis with limited range of motion. The doctor diagnosed an acute back injury and took the employee off work. An MRI scan showed a moderately large posterior right paracentral disc protrusion with impingement of the right L5 nerve root. The doctor diagnosed a herniated lumbar disc and continued the employee=s off-work status. On September 13, 1999, Dr. Hipp prescribed physical therapy. On September 29, 1999, Dr. Hipp diagnosed an acute disc herniation with radiculopathy, resolving. Dr. Hipp released the employee to return to modified duty as of October 7, 1999. Thereafter, the employee periodically returned to see Dr. Hipp. On January 24, 2000, the doctor=s diagnosis was again lumbar disc herniation with lumbar radiculitis, resolving. Dr. Hipp continued the employee=s work restrictions. By report dated April 17, 2000, Dr. Hipp rated a seven percent whole body disability.[1]
On January 25, 2000, the employee was a passenger in a freight elevator that suddenly fell one and a half to two floors and then stopped. The employee stated the fall caused him to bend over suddenly, resulting in pain and muscle spasms on the left side of his back. The self-insured employer admitted liability for a personal injury on that date.
The employee returned to see Dr. Anderson on January 25, 2000, and gave him a history of the elevator injury. On examination, the doctor found limited range of motion and left-sided tenderness with diffuse muscle spasm. Dr. Anderson diagnosed a lumbar strain with a history of previous right sciatica and current left-sided symptoms. The doctor released the employee to return to work with restrictions. On January 28, 2000, Dr. Anderson continued the employee=s restrictions. Dr. Anderson re-examined the employee on February 8, 2000, and again diagnosed a lumbar strain with left sciatica from the elevator accident superimposed on a prior lumbar strain with right sciatica. The doctor continued the employee=s light-duty restrictions and referred the employee to Dr. David Boxall.
The employee saw Dr. Boxall on February 15, 2000, and complained of mid and low back pain without radicular symptoms. On examination, the doctor found no tenderness or muscle spasm, limited range of motion and negative straight leg raising. The doctor diagnosed a herniated disc at L4-5 on the right and recommended additional physical therapy. Thereafter, the employee followed up periodically with Dr. Boxall. On March 29, 2000, Dr. Boxall=s examination and diagnosis were unchanged. The doctor released the employee to return to work with restrictions. The doctor also ordered a nerve root block which provided no relief. On May 31, 2000, the doctor=s neurological examination was normal. He opined the employee=s symptoms did not warrant surgery and were mechanical rather than caused by a nerve root impingement. The doctor referred the employee to the Physician=s Neck and Back Clinic for a rehabilitation program. The employee attended this program from June through December 2000. The employee again saw Dr. Boxall on January 5, 2001, with continued complaints of low back pain with radiation into the left buttock and weakness in both legs. On examination, Dr. Boxall noted some decreased range of motion. The diagnosis remained herniated disc at L4-5 on the right. The doctor stated he had no further suggestions for treatment and rated a nine percent whole body disability.[2]
Following his claimed injury of August 13, 1999, the employee was off work from August 27 until October 7, 1999. Following the January 25, 2000 injury, the employee was off work for a short time and then returned to work to a light-duty position with the employer. By March 6, 2000, the employer was no longer able to accommodate the employee=s restrictions and terminated his employment. The self-insured employer paid temporary total disability benefits to the employee. On March 25, 2001, the employee started a job with American Engineer and later found a job with McCall Construction. The employee has worked at wage loss since March 25, 2001.
The employee had a history of low back problems prior to August 13, 1999. He was seen at the Stillwater Medical Group on November 15, 1996, complaining of a gradual onset of low back pain while working at Northside Construction. The employee gave a history of intermittent back spasms in the past. Dr. Williams diagnosed a lumbar back strain with early left sciatica. In the summer of 1997, the employee treated with a chiropractor for low back pain. The employee testified he injured his low back while shoveling snow in January of 1998. On February 15, 1999, the employee saw Dr. Domino at HealthWorks complaining of low back pain after lifting trash into a dumpster at the University of Minnesota. The doctor diagnosed an acute lumbar strain and allowed the employee to return to work with restrictions. By March 3, 1999, Dr. Domino discharged the employee and released him to return to work without restrictions. The employee testified he missed no time from work following the February 29, 1999 injury and stated his symptoms cleared up completely. The employee denied any low back pain or discomfort immediately prior to the August 13, 1999 incident.
On July 18, 2000, the employee was examined by Dr. Mark E. Friedland at the request of the self-insured employer. The doctor obtained a history from the employee, reviewed his medical records and performed an examination. Dr. Friedland diagnosed a small central and right-sided L4-5 disc herniation, without objective findings on physical examination consistent with lumbar radiculopathy, and mild multi-level degenerative thoracic disc disease. The doctor concluded the employee had intermittent low back complaints associated with his work activities over the past 20 years. He opined the incident of August 13, 1999, was not a substantial contributing cause of any disability or need for medical care from September 1999 through January 24, 2000. Rather, the doctor stated the low back complaints for which the employee sought treatment on August 27, 1999, were consistent with his chronic multi-level lumbar degenerative disc disease. Dr. Friedland based this opinion, in part, on a history of an ability to work in an unrestricted manner for two weeks after the August 13, 1999 incident. Alternatively, assuming the employee did sustain an injury on August 13, 1999, Dr. Friedland opined such injury was temporary and not a substantial contributing cause to the employee=s current low back condition, disability or need for medical care. The doctor concluded the employee did sustain an injury on January 25, 2000, from which he had not yet reached maximum medical improvement (MMI). The doctor felt the employee could work subject to a 25-pound lifting restriction with no repetitive bending, twisting or stooping and opined the employee sustained no permanent partial disability.
In July 2000, the employee and his siblings were preparing for their parents= 50th wedding anniversary. At that time, the employee=s father was not in good health and his mother was terminally ill. On July 25, 2000, the employee washed his parents= home with a power washer. The employee was then under surveillance by an investigator with Premier Investigations, Inc., hired by the employer. A 272 minute videotape surveillance film was made of some of the employee=s activities on July 25 and July 28, 2000. The surveillance film reflects the employee performing the following activities: about five minutes of squatting and bending to attach hoses and make adjustments to a power house washing machine; a few minutes of using a washing brush on a hose on the house which involved some reaching up, bending and squatting; nine minutes beginning at 12:29 p.m. of moving a six foot step ladder, climbing the ladder, and using a small hand held plastic spray bottle and a rag to clean parts of the house; about five more minutes of cleaning with a power washer hose beginning at 12:38; carrying an empty plastic tub about 14 inches by 14 inches by 2 feet long, shoveling several inches of wood chips into it, then dumping the wood chips into a flower box at shoulder height; and putting a shovel and a wheelbarrow into a truck at 3:19 p.m. On July 28, 2000, shortly after 1:00 p.m. the employee and another adult male moved a three foot by six foot table with collapsed legs a few feet; the employee also moved stackable plastic lawn chairs several at a time a few feet. During the course of the activities videotaped, the employee squatted, bent, reached over his head with his arms and extended his arm to the side while using either the power hose or a rag.
The deposition of Dr. Friedland was taken on May 9, 2001. The doctor testified that following his July 18, 2000 examination of the employee, he reviewed the surveillance videotape and prepared a supplemental report dated January 23, 2001. Dr. Friedland opined the videotape was inconsistent with the history the employee gave him on July 18, 2000. The doctor stated the employee demonstrated significant abilities on the videotape that were beyond those he demonstrated in his examination. Based on the videotape, the doctor opined the employee did not require restrictions as a result of his low back condition and stated the videotape supported his opinion that the employee sustained no permanent partial disability. The doctor further opined the employee had reached maximum medical improvement (MMI) by July 18, 2000.
The employee=s claim for benefits was heard by a compensation judge at the Office of Administrative Hearings on May 22, 2001. At the hearing, the employee testified he worked for the employer as a maintenance carpenter and worked on projects that required anywhere from an hour up to two weeks to complete. The employee testified he hung sheetrock and doors, installed metal and wood studs, ceiling and floor tile, repaired windows, replaced countertops in laboratories and offices and put up partition walls. The employee testified he carried bundles of studs and sheetrock, lifted floor and ceiling tile and did concrete form work. He stated he lifted from 10 to 200 pounds. The employee stated the work at the University of Minnesota was similar to work he had done for other union employers. Effective May 1, 1999, the employee was paid $23.15 per hour pursuant to the union contract. In addition, the employer paid $8.48 in fringe benefits to the union. One of those fringe benefits was a payment of $1.82 per hour paid to the union vacation fund. The employee testified the union paid these funds to him twice a year and he was able to use them as he wished.
Steve Woullet testified he was a maintenance carpenter for the University of Minnesota and, on occasion, worked with the employee. Mr. Woullet testified that, from August 13 through August 27, 1999, the employee did not complain to him about any problems with his back. The witness further testified his job as a maintenance carpenter was not affected by the weather nor was it seasonal. Rick Swanson, the operations supervisor in the facility management department of the University of Minnesota, testified the University of Minnesota employed both construction carpenters and maintenance carpenters and the employee primarily worked as a maintenance carpenter. Mr. Swanson disagreed with the employee=s description of his job and stated the employee did not regularly do framing work, drywall work, or tile work, nor was he required to Aregularly lift 200 pounds.@ (T. 147.) Mr. Swanson said the employee generally hung bulletin boards, shelves and pictures. He testified other carpenters at the University were more skilled and he attempted to give the employee lighter maintenance duties. From August 13 through August 26, the employee performed his regular duties and Mr. Swanson did not observe that the employee had any difficulty performing his job. On August 27, 1999, the employee told Mr. Swanson his back was hurting and he asked permission to go home. Mr. Swanson instructed the employee prepare an incident report and go to HealthWorks for medical care.
The deposition of Dr. Boxall was taken on May 31, 2001. The doctor stated on April 30, 2001, the employee exhibited exaggerated pain behavior with give-way weakness bilaterally on strength testing. On May 25, 2001, the employee had no radicular complaints, stated he was much improved and was working. On examination, flexion and extension were normal as was the doctor=s neurological examination. The doctor opined the employee=s symptoms were caused by mechanical low back problems rather than a nerve root impingement. Dr. Boxall then reviewed the surveillance videotape. The doctor testified he saw no indication on the videotape that the employee=s range of motion was limited. He opined the reliability of the employee=s complaints and his functional ability were called into question by the videotape. The doctor further stated the basis for his nine percent permanent partial disability rating was the employee=s restrictive range of motion and complaints of pain. Based on the videotape, the doctor opined the employee would either have a seven percent rating for degenerative disc disease or a zero percent rating if the videotape was reflective of the employee=s typical activities every day. Based on the videotape, the doctor stated he would assign a 50-pound lifting restriction and instruct the employee to avoid prolonged sitting, standing, and repetitive bending or twisting for more than several hours at a time.
The deposition of Harry Melander, the chair of Carpenters Union 87, was taken on June 19, 2001. Mr. Melander stated he was familiar with the type of work the union members performed at the University of Minnesota. Mr. Melander testified the union did not distinguish between maintenance and construction carpenter and testified that carpenters did carpentry work.
In a Findings and Order filed August 14, 2001, the compensation judge found the employee sustained a personal injury on August 13, 1999. The judge found the employee was working in the construction industry on August 13, 1999 and January 25, 2000, entitling the employee to the imputed wage set forth at Minn. Stat. ' 176.011, subd. 3, or his actual earnings, whichever was more. The judge further found the $1.82 per hour paid to the union vacation fund was includable in the daily wage computation. The compensation judge found the employee=s physical activities as demonstrated on the surveillance tape did not represent an accurate measure of his overall level of functioning. Finally, the compensation judge found the employee sustained a seven percent permanent partial disability and had permanent restrictions secondary to his work injury. The self-insured employer appeals each of these findings.
DECISION
1. August 13, 1999 Injury
The self-insured employer first argues the compensation judge=s finding that the employee sustained a work-related injury on August 13, 1999, is clearly erroneous and unsupported by substantial evidence. The appellant asserts the employee had a longstanding history of low back problems prior to August 13, 1999, performed his regular job over the next two weeks without any complaints to his co-workers about low back problems, and did not seek any medical care until August 27, 1999. Viewing the evidence in its entirety, the appellant asserts, compels a conclusion that the employee did not sustain a personal injury on August 13, 1999. We disagree.
As the appellant asserts, the employee does have a pre-existing history of low back problems. He was seen at the Stillwater Medical Group on November 15, 1996, reporting a gradual onset of low back pain while at work with a history of intermittent back spasms. Dr. Williams diagnosed a lumbar back strain with early left sciatica. On February 15, 1999, the employee saw Dr. Domino complaining of low back pain after lifting at work. The doctor diagnosed an acute lumbar strain. However, by March 3, 1999, Dr. Domino released the employee to return to work without restrictions. The employee testified he missed no time from work thereafter and testified his symptoms cleared up completely. The employee denied any low back pain or discomfort between then and the August 13, 1999 incident. The compensation judge determined the evidence was insufficient to support a conclusion that the employee had any permanent pre-existing left leg pain or symptoms. The medical records and the employee=s testimony provide substantial evidence to support this conclusion.
The appellant does not dispute that the employee did fall through the ceiling on August 13, 1999, and immediately reported the incident. The employee told Dr. Hipp his back symptoms really didn=t start bothering him for about 10 to 14 days after the fall. In his office note, Dr. Hipp stated it was not uncommon for a herniated disc to cause increased symptoms one or two weeks after an incident as the chemical reaction around the disc and the nerve root increase. The doctor concluded it was Aentirely possible that he incurred this herniated disc during that fall, which is most likely the cause of his injury, and I felt this would be related to work.@ (Pet. Ex. G.) The surveillance videotape together with the opinions of Dr. Friedland would support a conclusion different from that reached by the compensation judge. The judge, however, specifically accepted the causation opinion of Dr. Hipp. Where more than one inference may reasonably be drawn from the evidence, the compensation judge's findings must be upheld. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s finding that the employee sustained a personal injury on August 13, 1999, is affirmed.
2. Imputed Daily Wage
Minn. Stat. ' 176.011, subd. 3, provides, in part:
[I]n the case of the construction industry, mining industry, or other industry where the hours of work are affected by seasonal conditions, the weekly wage shall not be less than five times the daily wage.
The compensation judge found the employee=s work as a maintenance carpenter on August 13, 1999 and January 25, 2000, was work within the construction industry entitling the employee to a weekly wage of not less than five times his daily wage. During the 24 week period prior to January 25, 2000, the employee=s wage averaged $687.60. The judge multiplied the employee=s hourly wage of $24.97 by 40 hours and determined his weekly wage was $998.80. The judge then ordered the self-insured employer to pay temporary partial disability benefits based on a weekly wage of $998.80. The self-insured employer appeals.[3]
In Keklah v. Gebert=s Floor Coverings, 511 N.W.2d 437, 50 W.C.D. 68 (Minn. 1994), the employee was a carpet layer who worked on refurbishing existing buildings. In concluding Keklah worked in the construction industry the court stated:
We can ascertain no rational basis for saying that carpenters, bricklayers, plumbers, electricians, roofers, painters as well as carpet layers, are members of the construction industry if the project on which they are presently engaged is the construction of a completely new building but they step outside of the construction industry whenever the current project calls for the remodeling, renovation or major refurbishing of an existing structure. This is not to say that every worker who performs repair work on an existing structure or who lays carpet is a member of the construction industry . . . .
The testimony as to whether the employee=s work for the employer was in the construction industry was not extensive and was conflicting. The employee testified he hung sheetrock and doors, installed metal and wood studs, ceiling and floor tile and worked with concrete forms. The compensation judge could reasonably conclude these types of jobs are within the construction industry. Rick Swanson disagreed with the employee=s description of his job. Mr. Swanson stated the employee did not regularly do framing work, drywall work or tile work. Rather, he testified he generally gave the employee the lighter maintenance duties such as hanging bulletin boards, shelves and pictures. The employee concluded the employer=s work was in the construction industry. Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld. Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988). On balance, we conclude the evidence is minimally adequate to support the compensation judge=s determination. The judge=s finding that the employee was working in the construction industry on January 25, 2000, is affirmed.
3. Wage Computation
On January 25, 2000, the employee was paid $23.15 an hour pursuant to the union contract. In addition, the employer paid $8.48 in fringe benefits to the union. One of those fringe benefits was a payment of $1.82 per hour paid to the union vacation fund. The compensation judge included the $1.82 per hour payment to the vacation fund in the weekly wage computation for the January 25, 2000 injury. The employer and insurer contend such inclusion was legally erroneous. We agree.
As a general rule, if an employee receives vacation pay during the 26 weeks prior to the injury, the vacation pay is includable in the wage calculation. Fougner v. Boise Cascade Corp., 460 N.W.2d 1, 43 W.C.D. 286 (Minn. 1990). Similarly, benefits representing wages which the employee actually earned, were payable directly to the employee, usable at the employee=s discretion and upon which the employee was required to pay appropriate tax are generally included in the calculation of weekly wage because such benefits reflect earning capacity. See Boschee v. Barry Blower, slip op. (W.C.C.A. Aug. 28, 1989). Conversely, benefits which the employee cannot utilize at the employee=s discretion and are not taxable as wages, are not considered a part of the employee=s wages reflective of an ability to earn. Carothers v. Pride Mechanical, slip op. (W.C.C.A. Nov. 4, 1994). In Hayes v. Ohbayshai Corp., slip op. (W.C.C.A. Feb. 9, 1989), the employer had a contract with the union to pay to the union .50 for each hour of labor worked. The payment was retained by the union for payment of a vacation benefit for union members and each member could claim the amount to which the member was entitled at least once a year. On those facts, the court concluded the amount of the vacation pay was not to be included in the employee=s weekly wage because the union rather than the employee had discretion as to how the funds would be distributed.
In this case, there is no evidence the accrued vacation pay accrued in a union account was taxable to the employee until actually received. There is evidence the union maintained control over the accrued vacation pay and the employee could draw on it only twice a year. Under these circumstances, we conclude the $1.82 payment made by the employer to the union was not includable in the calculation of the employee=s weekly wage. We therefore modify the employee=s weekly wage on January 25, 2000, to $926.00 ($23.15 x 40 hours).
4. Surveillance Evidence
The compensation judge reviewed the employer=s surveillance evidence and made extensive findings reflecting the activities shown on the videotape. The judge, however, found the videotape was not an accurate representation of the employee=s overall level of functioning in the summer of 2000. The self-insured employer contends this finding is unsupported by substantial evidence. The appellant notes the employee did not dispute the surveillance evidence was accurate and agreed he engaged in the activities shown. Dr. Boxall and Dr. Friedland both concluded the employee exhibited no pain behaviors on the videotape and described the employee as moving fluidly and without difficulty or limitation. The appellant further argues the employee=s movements as demonstrated on the videotape exceed the subjective limitations the employee reported to his doctors. Accordingly, the appellant contends the employee=s testimony is not credible. For these reasons, the self-insured employer contends the judge=s finding regarding the employee=s level of functioning in the summer of 2000 must be reversed.
The employee testified he was the sibling who lived closest to his parents and always helped them out with their maintenance needs. He continued to do so after his August 1999 injury, but testified he was unable to do as much as he had before. After the employee had power washed his parent=s house, he stated he was sore so he did some stretching exercises and took a pain pill. The employee acknowledged he probably shouldn=t have done some of the activities shown on the videotape but, in general, he felt the activities were within his restrictions and, at the time, felt they were activities he could perform.
Dr. Friedland and Dr. Boxall testified the surveillance videotape was inconsistent with the history the employee gave the doctors. The compensation judge could have concluded the surveillance videotape accurately reflected the employee=s ability to function. However, under this court=s standard of review, the issue is not whether the evidence will support alternative findings, but whether the Afindings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1(3). 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). Findings of fact may not be disturbed, even though the reviewing court may 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Where evidence conflicts or more than one inference may be drawn from the evidence, the judge=s findings are to be affirmed. Given the employee=s testimony, we cannot conclude the compensation judge=s decision on this issue was clearly erroneous. The judge=s decision is, therefore, affirmed.
5. Permanent Restrictions
The compensation judge found the employee has permanent limitations restricting repetitive bending, twisting, prolonged sitting and standing and lifting in excess of 50 pounds. Dr. Friedland opined the employee was not in need of any restrictions for his low back condition, especially after viewing the videotape surveillance. Dr. Boxall also felt the employee=s restrictions would be called into question based on the surveillance evidence. Viewing the evidence as a whole, the appellant contends reasonable persons could not have concluded the employee required ongoing restrictions as a result of his low back injury. Accordingly, they ask this court to reverse the judge=s finding regarding restrictions.
We have affirmed the compensation judge=s conclusion that the videotape surveillance does not reflect the employee=s overall level of functioning. Accordingly, the surveillance evidence does not compel a reversal of the judge=s findings regarding restrictions. Further, the restrictions found by the compensation judge were those assigned by Dr. Boxall after he reviewed the surveillance videotape. The doctor testified the basis for his opinion was that Athere=s no question but he [the employee] had a disc herniation and therefore he=s at some risk of getting into problems in the future.@ (Resp. Ex. 11, pp. 41-42.) Substantial evidence supports the compensation judge=s finding of restrictions. That finding is affirmed.
6. Permanent Partial Disability
The compensation judge found the employee sustained a seven percent whole body permanent partial disability under Minn. R. 5223.0390, subp. 4.C.(1). The compensation judge further found the employee had Apositive findings on clinical examination of his lumbar spine at most of his appointments with his treating doctors from August 27, 1999 on.@ (Finding 21.) The appellant contends the employee=s medical records do not document persistent objective clinical findings of muscle spasm. The employer argues any limitation of motion was purely subjective on the part of the employee and any such findings were specifically discounted by Dr. Friedland and Dr. Boxall, based on their review of the surveillance videotape. Accordingly, the self-insured employer asks this court to reverse the award of permanent partial disability benefits. We disagree.
Minn. R. 5223.0390, subp. 4.C.(1), provides for a seven percent rating for radicular pain or paresthesia, with or without lumbar pain syndrome, with persistent objective clinical findings in the lumbar spine, including involuntary muscle tightness in the paralumbar muscles or decreased range of motion in the lumbar spine with any radiographic, myelographic, CT scan or MRI scan abnormality at a single vertebral level.
On August 30, 1999, Dr. Anderson recorded the employee had limited range of motion and spasm throughout the lumbar paraspinous muscles. The doctor diagnosed a lumbar strain with right sciatica. The employee went to the emergency room at Lakeview Hospital on August 31, 1999, complaining of low back pain with radiation into his right leg. On September 2, 1999, Dr. Anderson recorded a limitation of motion with diffuse spasm throughout the lumbar spine area. On January 25, 2000, the employee=s range of motion was again limited and the doctor noted mild diffuse spasm throughout the lumbar spine. On September 3, 1999, the employee complained of low back pain with radiation into both legs. Dr. Hipp noted a marked loss of normal lordosis, limited range of motion and marked muscle spasm. The doctor ordered an MRI scan which showed a moderately large posterior right paracentral disc protrusion with impingement of the right L5 nerve root. On September 13, 1999, the employee had right leg symptoms and his range of motion was limited to 30 percent of normal. On September 20, 1999, Dr. Hipp=s examination reflected less tightness and spasm in the paraspinal muscles with range of motion limited to 30 to 40 percent of normal. The doctor again noted lumbar radiculopathy. By report dated April 17, 2000, Dr. Hipp rated a seven percent whole body disability.
The medical records of Dr. Anderson and Dr. Hipp document radicular pain and persistent objective clinical findings including muscle spasm and decreased range of motion. The MRI scan ordered by Dr. Hipp was abnormal. Substantial evidence of record supports the compensation judge=s award of a seven percent whole body disability, and we affirm.