DAVID T. RAUEN, Employee/Appellant, v. PARK NICOLLET MEDICAL CTR., SELF-INSURED, adm=d by BERKLEY RISK ADM'RS, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 16, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including the opinions of the employer and insurer=s medical and vocational experts, supports the compensation judge=s denial of permanent total disability to the employee as a result of his work-related low back injury of November 21, 1997 and an injury to the cervical/ thoracic spine in December 1998.

 

Affirmed.

 

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

Compensation Judge: Ronald E. Erickson

                                                           

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s denial of permanent total disability benefits as a result of his work-related low back injury of November 21, 1997 and an injury to the cervical/ thoracic spine in December 1998.  We affirm.

 

BACKGROUND

 

David T. Rauen, the employee, was 49 years old at the time of the hearing.  He has a high school education and completed almost a year of college-level business administration classes.  He was employed by International Paper from 1970 to 1974, then worked as an emergency medical technician (EMT) for Smith Ambulance from 1974 to 1977.  For twenty-two years, from 1975 to 1997, the employee owned and operated a construction business.  During 1995-96, the employee also returned to school to study tool and die making, and was working at Rao Manufacturing.  In August 1996, the employee suffered an anterior myocardial infarction, treated with angioplasty and place­ment of a stent in the proximal left anterior descending (LAD) artery.  The employee returned to work in September 1996, but continued to experience chest pain and palpatations, and eventually lost his job at Rao Manufacturing.

 

In April 1997, the employee began working as a maintenance mechanic for Park Nicollet Medical Center, the self-insured employer.   In May 1997, the employee=s cardiologist, Dr. Jeffrey Chambers, noted the employee had changed jobs and was doing very well.  He had no chest pain and his cardiac examination was normal.  The em­ployee continued to take medication (Lipitor) to treat his high cholesterol.

 

On November 21, 1997, the employee sustained an admitted, personal injury to his low back while lifting a six-gallon bucket filled with AAA batteries.  He was seen by Dr. Michael McGrail at the employer=s Occupational Medicine clinic, who initiated conservative treatment and released the employee to return to work with restrictions.  The employee experienced gradually worsening low back and left leg pain, and on January 8, 1998, a CT scan was obtained which showed a left-sided disc herniation at L4-5 impinging the left L5 nerve root, along with degenerative changes and stenosis at L4-5 and L5-S1.  The employee was referred to a neurosurgeon, Dr. Andrew Smith, who, on February 12, 1998, performed a laminectomy, discectomy and facetectomy at L4-5, with decompression of the left L5 nerve root.  On May 4, 1998, following completion of physical therapy and some work hardening, Dr. Smith released the employee to return to work four hours per day with no bending, twisting, stooping, squatting or crouching; limiting sitting, standing and walking to one to two hours with frequent changes of position; and no lifting over ten pounds.

 

The employee reported improvement in his low back and leg pain following the surgery, but continued to complain of pain, numbness and weakness in the left lower extremity.  A repeat CT scan on May 18, 1998, suggested either scar tissue or a recurrent disc herniation impinging the L5 nerve root.  Dr. McGrail and Dr. Smith noted findings consistent with a mild L5 radiculo­pathy on the left, including a decreased Achilles reflex, very mildly positive straight leg raising, and hypes­thesia in the L5 nerve distribution.  An enhanced MRI scan on May 27, 1998, revealed perineural scarring impinging on the left L5 nerve root at L4-5, but no evidence of a recurrent herniated disc.  A small disc protrusion was also noted at L5-S1 on the right which did not appear to impinge the nerve root. 

 

On July 13, 1998, the employee was seen by Dr. Charles Kelly at the Physicians Neck and Back Clinic for a back rehabilitation consultation.  Dr. Kelly noted mild left lower extremity findings similar to those found by Dr. McGrail and Dr. Smith, as well as mildly weak big toe ex­tension, but noted left leg loss of sensation was subjective and not in an anatomic distribution.  He diag­nosed deconditioning syndrome and recommended a short-term, active exercise rehabilitation program to restore the employee to optimal functioning.

 

The employee was then seen, on August 7, 1998, by Dr. Edward Hames, a neurosurgeon, for a second opinion regarding surgery at the request of Dr. McGrail.  The employee reported that, at that point in time, his pain had not resolved but was Acertainly acceptable.@ (Jt. Ex. 4.)  On examination, Dr. Hames noted limited lumbar range of motion, some very mild weakness in the left leg and mild hypalgesia over the dorsum of the left foot, but negative straight leg raising.  He diagnosed epidural fibrosis on the left at L4-5, and advised against further surgical intervention.

 

The employee continued to work for the employer.  Over the next few months, efforts were made to gradu­al­ly increase his work hours, without success.  Following participation in a structured pool therapy program, the employee advised Dr. McGrail, on October 27, 1998, that he did not feel he could work more than four hours a day due to lack of improvement in his leg and back symp­toms.  Dr. McGrail diagnosed chronic left sciatica, continued the employee=s four hour, light-duty work restrictions in­definitely, concluded the employee had reached maximum medical improvement, and provided a 12 percent permanent partial disability rating.^[1]

 

On December 14, 1998, the employee was seen at Metropolitan Cardiology Consultants reporting recurrent chest pain with left arm radiation.  The following day, he was hospitalized at Mercy Hospital for unstable angina and asystolic cardiac arrest.  An emergency angiography showed restenosis of the LAD and a 90 percent occlusion of the first diagonal artery.  The employee was treated with angioplasty and stenting of the LAD and first diagonal, and released from the hospital on December 17, 1998.  Dr. Chambers indicated the employee should remain off work for two weeks, return to work light-duty for two weeks, and could then return to work full-time.

 

On December 30, 1998 and January 7, 1999, the employee was seen by Dr. Chambers, describing episodes of tingling in his arms and legs, along with upper back pain between his shoulder blades.  Dr. Chambers noted the employee=s neck was supple, and his cardiac examination was essentially normal.  He indicated the employee=s cardiac condition was stable, and did not think the tingling in the arms and legs was cardiac related.  The employee was also seen by Dr. Robert Gorman at the Occupational Medicine Clinic on January 7, 1999.  The employee stated when he returned to work on December 28 or 29, 1998, he was lifting and moving a typewriter and injured his upper back.  On examination, the doctor noted some medial scapular tenderness but grossly nor­mal neck range of motion.

 

On January 12, 1999, the employee was seen by Dr. David Webster at the Minneapolis Clinic of Neuro­logy on referral from Dr. Chambers.  The employee described pain between the shoulder blades with burning and tingling discomfort radiating into the arms and legs.  Dr. Webster noted normal cervical range of motion, mild tenderness over the thoracic spine and normal findings on examination of the upper extremities with subjective hypalgesia to pinprick.  Lumbar spine examination revealed normal forward flexion, diffuse ten­derness over the lumbar spine and no muscle spasm.  The employee had difficulty with toe and heel walking on the left leg, but demonstrated give-way weakness with subjective hypalgesia in the left leg and foot that did not follow a derma­tomal pattern.  Dr. Webster found no evidence of any serious organic neurological disease, stating the Aexamination shows a paucity of objective abnormalities.@  (Jt. Ex. 10.)  Subsequent CT scans of the thoracic and cervical spines showed no abnormalities other than mild degenerative changes at C5-6 and C6-7.  An EMG of the left upper and lower extremities (ex­clud­ing the left lumbar para­spinals) was essentially normal.  In a follow-up visit on Janu­ary 25, 1999, Dr. Webster noted mildly tender cer­vical muscles without spasm and normal cervical range of mo­tion.  In the thoracic region, the employee was slightly tender without spasm.  The employee had normal lumbar forward flexion, normal muscle tone and strength in the lower ex­tremities and deep tendon reflexes were symmetric.  The employee was discharged from Dr. Webster=s care.

 

The employee continued to treat with Dr. McGrail for persistent low back and left leg pain through March 29, 1999.  The doctor recommended the employee pursue an active exercise program, and continued the same work restrictions as before.  An EMG on March 15, 1999 showed no active or chronic radicular changes in the lower extremities.  The employee was also seen by David Alter, a licensed psy­chol­o­gist, for help with stress and chronic pain management. 

 

In early February 1999, the employee had an abnormal cardiac stress test.  An angiogram on February 8, 1999 showed 100 percent occlusion of the small diagonal previously stented.  Dr. Chambers indicated the vessel was not a good candidate for intervention and opted to treat the employee with medication.  By March 11, 1999, Dr. Chambers indicated the employee was doing well and his chest pain symptoms had completely resolved.

 

In early April 1999, the employee began treating with Dr. Steven Noran, a neurologist.  Dr. Noran ordered a lumbar MRI scan, and imposed permanent work restrictions of two hours per day; avoid bending and twisting; no climbing, squatting or crawling; change positions as needed, no lifting, pushing or pulling over ten pounds and no carrying over five pounds.  The April 12, 1999 scan showed scar tissue in the left epi­dural space sur­rounding the left L5 nerve root with mild left bony foraminal stenosis, as well as disc degeneration at L5-S1 extending to the right without evidence of nerve impingement.  By letter report dated April 14,1999, Dr. Noran concluded the employee had reached MMI and assessed a 26 percent per­ma­nent partial disability for the lumbar spine.  Dr. Noran recommended conservative management including medications, stress manage­ment and assignment of a qualified rehabilitation consultant (QRC).  The employee continued to ex­perience low back pain with left leg pain and numbness, and on May 6, 1999, Dr. Noran took the employee off work.  On June 7, 1999, Dr. Noran extended the employee=s off work status for three months.

 

A dispute arose between the parties regarding medical care, work restrictions, the employee=s change of physicians to Dr. Noran, and his request for assignment of a QRC.  On June 30, 1999, the employee was examined by Dr. Daniel C. Randa, a neurologist, at the request of the self-insured employer.  Dr. Randa concluded the employee sustained a work-related injury to the lumbar spine on November 21, 1997, in the nature of a herniated disc at L4-5 with L5 radiculopathy on the left, surgically treated, with post-surgery perineural fibrosis or scarring and residual L5 radiculopathy on the left.  The doctor opined the employee=s condition was complicated by gross embellishment of symptoms and conspicuous, if not predominant, pain behavior, inconsistent with clinical findings.  Dr. Randa believed the employee should be encouraged to resume an active life­style and recommended the employee gradually resume an eight-hour work day, on a work-hardening schedule, with light-duty restrictions, avoiding activities requiring flexion of the lumbar spine and lifting more than 20 pounds on a regular basis.

 

On July 21, 1999, the parties entered into a Stipulation for Settlement in which the employee accepted $9,330.04, in return for a close out of all claims for permanency to the lumbar spine to 14 percent, and a to-date settlement of claims for other workers= compensation benefits, including temporary total and permanent total disability benefits.  The employee also agreed to accept a modi­fied maintenance mechanic job offered by the employer and to begin working in the job on July 26, 1999.  An Award on Stipulation was served and filed on July 23, 1999.

 

The employee=s attempt to return to work with the employer was not successful.  On September 22, 1999, Dr. Matthew Monsein, at the Abbott Northwestern Chronic Pain Rehabilitation Program, performed an evaluation at the request of Dr. Noran.  Dr. Monsein diagnosed a history of degenerative disc disease with persistent left-sided radiculopathy, mild depression, significant myofascial components, and chronic pain syndrome.  The doctor concluded the employee would be a good candidate for the pain program.  Dr. Monsein further noted that although vocational rehabilitation was normally an important component of the pain program, based on the employee=s current vocational situation and medical problems, he did not see the employee returning back to work.  On September 29, 1999, with the support of Dr. Monsein, the employee applied for Social Security Disability benefits (SSDI).

 

The employee was eventually admitted to the pain program and was discharged upon completion of the program on February 10, 2000.  At that time, Dr. Monsein provided work restrictions including an eight-pound lifting restriction on a rare and occasional basis, avoidance of repetitive bending or twisting activities, and frequent changes of position.  Dr. Monsein further indicated the employee was unable to walk more than 5-6 minutes continuously and would need to take frequent rests.  The doctor remained equivocal, however, about the employee=s ability to return to gainful employment.  On February 22, 2000, the employee=s application for SSDI was approved, retroactive to May 28, 1999, based on the employee=s ischemic heart disease and discogenic and degenerative disorders of the back.  By report dated May 30, 2000, Dr. Noran expressed his opinion that the employee was not, at that time, capable of gainful employment and was unlikely to ever be employable in the future.

 

On June 8, 2000, the employee served a Claim Petition seeking temporary total or permanent total disability benefits from and after July 26, 1999, and additional permanent partial disability for the low back and upper back.  The employer and insurer denied further liability.  In late June and early July 2000, the employer extended an offer to the employee of a full-time job as a maintenance mech­anic with modifications to accommodate the restric­tions provided by Dr. Monsein, on a work-hardening schedule.  The employee did not accept the offer.

 

The employee was re-examined by Dr. Randa on September 21, 2000.  Dr. Randa agreed the employee had some residual perineural fibrosis at the L4-5 level as a result of the November 21, 1997 low back injury and consequent surgery, which would account for some intermittent pain in the left leg with numbness in an L5 distribution.  Dr. Randa was of the opinion, however, that the employee=s pain complaints were grossly excessive for the degree of fibrosis.  The doctor observed the most recent EMG was normal, and noted that on examination the employee showed only mild residual hypesthesia on the dorsal lateral aspect of the left foot without residual weakness in the musculature and minimal asymmetry of the ankle reflexes.  Dr. Randa opined the employee had essentially recovered from the L5 lumbar disc extrusion and surgery with minimal residual radiculopathy at L5 on the left, and that the employee=s pain complaints and inability to resume an active lifestyle was wholly inconsistent with the clinical findings and diagnostic test results.   Dr. Randa further concluded that the employee likely sustained a mild cervical/thoracic strain as a result of the December 1998 injury, which had resolved.  Dr. Randa reiterated his opinion that the employee was capable of working eight hours a day, avoiding repetitive lumbar flexion and no lifting over 20 pounds on a regular basis.

 

The employee also met with Jan Lowe, a vocational consultant, at the request of the self-insured employer, on February 26, 2001.  By report dated April 11, 2001, Ms. Lowe opined the employer=s June 2000 job offer was a suitable job that the employee was capable of performing.  Ms. Lowe further opined, assuming Dr. Randa=s opinions most accurately described the employee=s medical condition, that the employee was capable of sustained gainful employment, and that jobs were available in the Twin Cities and in Aitkin, where the employee was residing, that the employee could do.

 

The case was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order served and filed January 31, 2002, the compensation judge found the em­ployee had been able to work since July 1999, subject to a 20 pound lifting restriction and avoiding repetitive bending, and had failed to establish that he was permanently and totally disabled as a result of the work injury of November 21, 1997, or the cervical/thoracic strain of December 28 or 29, 1998.  The employee appeals.

 

STANDARD OF REVIEW

 

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).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be af­firmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  Similarly, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

The employee asserts that under this standard of review, this court must consider all the evidence and then weigh the evidence to determine its substantiality.  The employee argues that if the judge=s findings are not supported by substantial evidence, this court may substitute its own findings for those of the compensation judge.  The employee misconstrues the standard.  It is well established that this court

 

. . . must give due weight to the opportunity of the compensation judge to judge credibility.   . . . Here, a majority of the WCCA has chosen to make its own evaluation of the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  This is not the WCCA=s role.  The point is not whether we or the WCCA might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.

 

Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).

 

DECISION

 

The employee contends the compensation judge=s denial of his claim for permanent total disability benefits is manifestly contrary to the record as a whole.  The employee argues the work restrictions provided by his treating physicians, Drs. Noran and Monsein, severely limit the jobs available to him, and based on his low back and cervical/ thora­cic injuries alone, both Drs. Noran and Monsein have stated the employee is disabled from any gainful employment.  The employee further contends that his back injuries had a significant and de­bili­tating affect on his ability to adequately perform his cardiac rehabilitation program, contributing to his second heart attack and resulting cardiac disa­bility.  Accordingly, the employee argues, any disability attributable to his cardiac condition is also work-related.  We are not persuaded.

 

                  The compensation judge adopted the opinions and findings of Dr. Randa and Dr. Webster in determining the employee sustained a cervical strain at work on December 28 or 29, 1998, that resolved without permanent disability by January 25, 1999, when the employee was re­leased from further treatment by Dr. Webster.  It is the responsibility of the compensation judge to chose between conflicting medical opinions.  There is substantial support in the record for the judge=s determination on this issue, and we therefore affirm.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn l985).

 

The compensation judge also specifically adopted the restrictions of Dr. Randa, and relied on the opinions and findings of Dr. Randa in determining the employee was capable of working, and was not permanently and totally disabled.  As noted above, where there is a conflict in the opinions of medical experts, resolution of that conflict is the province of the compensation judge and as a general rule, will not be reversed by this court so long as the facts assumed by the expert in rendering his opinion are supported by the evidence.  Nord, id.  At the hearing, and again on appeal, the employee argues that Dr. Randa was hired by the self-insured employer, never treated the employee, and was extremely well paid for his efforts.  The employee maintains that Dr. Randa=s bias is evident in his reports and his opinions and his conclusions lack any factual basis or credibility.  The employee further asserts the use of Aindependent medical examiners@ (IMEs) has little statutory support, and urges this court to dis­courage this practice.

 

We note first, that Minn. Stat. ' 176.155, subd. 1, specifically provides A[t]he injured employee must submit to examination by the employer=s physician, if requested by the employer.@ While the term Ain­dependent medical examiner@ is not used,  the statute clearly authorizes and per­mits examinations of an injured employee by a physi­cian hired by the employer and/or insurer, and contemplates submission of the employer=s medical expert=s report to the compensation judge for consideration in determining a  disputed claim.

 

In this case, Dr. Randa is a board certified neurologist.  The doctor interviewed the employee and took a history, performed a clinical examination of the employee, and reviewed the relevant treatment records and diagnostic tests and reports.  As a general rule, this level of experience and knowledge is sufficient to establish a doctor=s competence to render an expert opinion.  See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 68, 40 W.C.D. 1130, 1132-33 (Minn. 1988).  The employee=s arguments go, instead, to the persuasiveness or weight to be accorded Dr. Randa=s opinions.  There is nothing that requires the trier of fact to accept the opinion of the employee=s treating doctors over the opinion of an IME.  A decision on how to weigh conflicting medical evidence is generally left to the discretion of the compensation judge.  Wilson v. North Star Steel, slip op. (W.C.C.A. Dec. 7, 1993).

 

This case was one in which there was a clear divergence in medical opinion.  To para­phrase the supreme court of this state:

 

[U]ntil the time comes when medical knowledge has progressed to such a point that experts in the field of medicine can agree, [a determination of medical disability] will have to remain in the province of the trier of fact.  Where qualified medical witnesses differ as they do here, it ordinarily is not for us on appeal to say that one is so eminently right and the other so clearly wrong that the fact finder was obliged to accept the opinion of one and dis­card the opinion of the other.  The determination of this question is like the determination of any other question of fact, and it must depend to a large extent upon the credibility attached by the trier of facts to the opinion and testimony of the various witnesses who are expressing their opinions.

 

Golob v. Buckingham Hotel, 244 Minn. 301, 304-05, 69 N.W.2d 636, 639, 18 W.C.D. 275, 278 (1955).

 

Accepting Dr. Randa=s opinions, the compensation judge could reasonably conclude, as he did, that although the employee=s low back injury may have complicated his cardiac rehabili­tation, it did not prevent him from engaging in, and did not substantially interfere with, the em­ployee=s ability to engage in cardiac rehabilitation.  We also note that Dr. Chambers, the employee=s car­di­ol­ogist, in a chart note dated December 18, 1998, when asked whether the employee=s inability to exercise  following his back injury was a substantial contributing factor to his recent episode of unstable an­gina and asystolic cardiac arrest, replied that he did not think that it was a significant contributing factor.  (Jt. Ex. 8.) 

 

Finally, Jan Lowe, relying upon Dr. Randa=s restrictions, opined that the employee was capable of obtaining gainful employment and that jobs the employee could do were available in both the Twin Cities and Aitkin labor markets.   The compensation judge found Ms. Lowe=s opinions persuasive.  As a general rule, an injured employee who is released to return to work establishes total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.  Redgate at 733, 40 W.C.D. at 954.  The employee admitted he made no attempt to find employment during the period in question.

 

Finally, the employee argues the compensation judge erred in admitting the second deposi­tion of Dr. Randa into evidence.  The employee=s attorney did not appear at the deposition because he was unaware the compensation judge had signed an order permitting the deposition to proceed.  Because of this confusion, the compensation judge extended the record for 30 days to per­mit employee=s counsel to cross-examine Dr. Randa post-hearing.  (T. 171-73.)  By letter dated November 19, 2001, counsel for the employee advised the court the parties had resolved the dispute, agreeing to sub­mission of financial information regarding Dr. Randa and the cross-examination of Dr. Randa in his first deposition in lieu of a second cross-examination.  Under these circumstances, the employee has waived any objection as to admission of the second deposition.  In any event, the bulk of the deposi­tion is duplicative and cumulative, and consideration of the deposition would not be so prejudicial as to require reversal.

 

Accordingly, while the evidence would certainly support a different result, on the record before us we cannot say that the compensation judge=s decision denying permanent total disability is without substantial support in the record or clearly erroneous.   We must, therefore, affirm.