VICKI A. SCOTT, Employee, v. GRAND MARAIS VENTURES, INC./SUBWAY and RAM MUT. INS. CO., Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, MN DEP=T OF HUMAN SERVS., and NORTHLAND NEUROLOGY AND MYOLOGY, P.A., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 10, 2002

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s determination that the employee was disabled from August 31, 1999 through June 5, 2000, and that her work injury of July 6, 1999, was an appreciable or substantial contributing cause of her disability and need for medical care.

 

JOB SEARCH; TEMPORARY TOTAL DISABILITY - WITHDRAWAL FROM LABOR MARKET.  Substantial evidence supports the compensation judge=s determination that the employee conducted a reasonably adequate search for employment between August 31, 1999 and June 5, 2000.  The employee did not remove herself from the labor market by moving from Grand Marais, Minnesota, a town of about 1,500 to Duluth, Minnesota, with a much greater job market.

 

MEDICAL TREATMENT & EXPENSE.  Substantial evidence supports the compensation judge=s choice of experts and his award of medical expenses in this case.  The compensation judge=s determination that the employee=s MRI scan of July 13, 1999 was appropriate and fell within an exception to the treatment parameters on medical imaging was not clearly erroneous.

 

Affirmed.

 

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

Compensation Judge:  Gregory A. Bonovetz

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee=s July 6, 1999 low back injury was a substantial contributing cause of the employee=s temporary total disability from August 31, 1999 to June 5, 2000, the judge=s conclusion that the employee made a reasonably adequate search for employment within her restrictions, and his award of medical expenses, including an MRI scan of July 13, 1999.  We affirm.

 

BACKGROUND

 

Vicki A. Scott was employed as a fast food preparer, server and cashier at the Subway in Grand Marais, Minnesota.  On July 6, 1999, the employee sustained an admitted personal injury to her low back.  On that date, after lifting three 30 to 35 pound cases of bread dough from the back of a walk-in freezer, the employee experienced intense, shooting pain from the low back into her but­tocks and down the right leg.  She contacted the assistant manager and went home, unable to com­plete her shift.

 

The employee sought treatment on July 10, 1999, at the Cook County Northshore Hos­pital, reporting persistent low back pain and shooting pain into the right leg, as well as pain and a cramping feeling in the groin area.  The doctor noted the employee ambulated with some difficulty, and had pain with flexion and extension of her right foot and great toe.  Con­cerned about possible disc involvement and noting the severity of the employee=s symp­toms, the examining physician ordered an MRI scan and prescribed Percocet as needed for pain.

 

The employee received follow-up treatment for her low back from Dr. Sandra Stover at the Sawtooth Mountain Clinic.  Based on the MRI scan of July 13, 1999 and her examinations of the employee, Dr. Stover diagnosed disc bulging and annular tears at L4-5 and L5-S1, without nerve compression, with resulting back and leg pain and a groin strain.  The em­ployee was taken off work and was referred for physical therapy.  Following a recheck on August 2, 1999, Dr. Stover provided work restrictions of no lifting or carrying over 10 pounds, no pushing, pulling, bending, twisting, turning, kneeling or squatting, rotate activities and positions, and no more than six hours of contin­uous work.

 

On August 10, 1999, the employee was seen for a second opinion by Dr. Ed Crisostomo at Northland Neurology on referral from Dr. Stover.  Dr. Crisostomo=s assessment was a lumbosacral and right groin strain with no evidence of radiculopathy.  He advised the employee to continue phy­sical ther­apy, and referred her back to Dr. Stover for return to work recom­mendations.  On August 19, 1999, the insurer requested a Report of Work Ability from Dr. Stover.  The doctor completed the form that day, providing restrictions of no lifting, bending, kneeling or pro­longed standing.  Dr. Stover indicated the employee could stand/walk for up to three hours, and stated the employee should be provided a block on which to brace her foot while working.

 

On August 23, 1999, the employee attempted a return to work with the employer.  She began working at 11:00 a.m. and worked for two to two and one-half hours.  The employee per­formed her regular work duties and was on her feet ­the entire time.  She experienced a marked in­crease in her pain and symptoms and was unable to complete the shift.  Later that evening, she was seen at St. Luke=s Urgent Care in Duluth, Minne­sota.  The doctor took the employee off work.  The employee returned to Dr. Stover on August 25, 1999.  On examination, the doctor noted difficulty with low back flexion and extension.  Dr. Stover con­tinued physical therapy and questioned the ability of the employee to perform sustained work at that point.  On August 30, 1999, the employer and insurer served a Notice of Intent to Discontinue Benefits (NOID) discontinuing payment of wage loss benefits, asserting the employer had work within the employee=s restrictions based on Dr. Stover=s August 19, 1999 work restrictions.^[1]

 

    On September 15, 1999, the employee was seen by Dr. Barbara Hemenway at North­land Family Physicians in Duluth, Minnesota, for follow-up of her back pain.  The employee de­scribed low back pain and an aching or stabbing pain over the right upper thigh which had been in­creasing for the past two or three weeks.  Dr. Hemenway diagnosed a back strain with annular tears and a right groin strain.  Upon recheck on October 14, 1999, Dr. Hemenway provided light-duty re­strictions of no lifting over ten to fifteen pounds and no prolonged sitting or standing, and referred the employee to Dr. Daniel Wallerstein for a physical medicine evaluation.

 

At the initial visit with Dr. Wallerstein, on October 18, 1999, the em­ployee de­scribed aching, stabbing and shooting pain along the medial aspect of the right thigh and right lateral sacral area.  On exam, she favored the right leg while ambulating, had limited lumbar flexion, and marked tenderness with palpation of the right iliopsoas muscle reproducing pain into the back and leg.  Dr. Wallerstein prescribed additional physical therapy for stretching, strengthening and conditioning and prescribed anti-inflammatory and pain relief medications.  The employee continued to treat with Dr. Wallerstein with gradual improvement of her symptoms.  On December 27, 1999, the doctor pro­vided new work restrictions of no lifting over 20 pounds, no pushing or pulling over 50 pounds, avoid twisting, no prolonged or frequent bending, occasional kneeling and squatting, and change positions frequently.

 

The employee moved from Grand Marais to Duluth in early February 2000.   In March 2000, she contacted the Department of Labor and Industry/Vocational Rehabilitation Unit (DOLI/ VRU) in Duluth seek­ing rehabilitation assistance.  By report dated March 29, 2000, Dale Kinnunen, a qualified reha­bili­tation consultant (QRC), determined the employee was eligible for rehabilitation services.  Voca­tional and job search assistance was initiated.  The employee com­pleted vocational testing and enrolled in a computer course to enhance her skills.  She eventually obtained a job as a customer service representative at United HealthCare in Duluth starting June 5, 2000.  The employee remained in this job through the date of hearing.

 

After moving to Duluth, the employee continued to receive care from Dr. Wallerstein. Her symptoms continued to improve, and on March 27, 2000, the doctor relaxed her restrictions slightly, allowing lifting up to 25 pounds; occasional bending, twisting, kneeling, squatting, walking, standing, pushing/pulling and climbing stairs or ladders; with frequent changes of position and stretching every 2-3 hours.  On April 18, 2000, Dr. Wallerstein opined that the employee=s condition ­­was work-related, increased her lifting restrictions to 35 pounds, and concluded the employee had reached maximum medical improvement (MMI).  Dr. Wallerstein=s MMI opinion was served on the employee by the employer and insurer on May 31, 2000.

 

The employee was seen by Dr. Loren Vorlicky, an orthopedic surgeon, for an independent medical opinion on May 30, 2000.  Dr. Vorlicky concluded the employee had pre-existing back and leg pain.  He opined that the employee=s injury of July 6, 1999 was an aggravation of an underlying degenerative condition, was minor in nature, and would have resolved within three months with no further need for medical care or work restrictions.

 

The employee filed a claim petition on February 11, 2000, seeking temporary total disa­bility benefits and payment of medical expenses.  The case was heard by a compensation judge at the Office of Administrative Hearings on June 20, 2001.  In a Findings and Order served and filed September 12, 2001, the compensation judge found, among other things, that the employee was temporarily and totally disabled from August 31, 1999 to June 5, 2000, and that the July 6, 1999 injury to the low back was a substantial contributing cause of her disability.  The judge concluded the employee made a reasonably adequate search for employment within her limitations in both Grand Marais and Duluth, and was entitled to temporary total disability benefits during that period. The judge also found that medical treatment provided to the employee was reasonable and necessary, and that the July 13, 1999 MRI scan fell within an exception to the treatment para­meters on medical imaging, Minn. R. 5221.6100, and was compensable.  The employer and insurer appeal.

 

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).

 

DECISION

 

1.  Causation

 

The employer and insurer argue the great weight of the evidence demonstrates the em­ployee=s July 6, 1999 low back injury was not a substantial contributing cause of her total disability or need for ongoing medical care after August 30, 1999.  They assert the employee=s medical record, as a whole, Apresents many possibilities@ to explain her ongoing symptoms during the claimed period of temporary total disability.  They point, in particular to evidence of emotional stress and complaints of back pain in 1990, 1995 and 1996.  It is not the role of this court, however, to reassess and re­weigh the evidence.  Rather, if 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).

 

It is evident from the compensation judge=s findings and memorandum that he considered the employer and insurer=s arguments on this point at the time of hearing, and, in weighing the evidence, accepted the testimony of the employee and the opinions of her treating physician over that of the employer and insurer=s medical expert, Dr. Vorlicky.  The fact that the employee was also experiencing emotional stress during the time period in question, or that she had occasional com­plaints of back pain in the past, does not, in and of itself, compel a determination that the employee=s July 6, 1999 injury was not a substantial contributing cause of her disability.  It is not necessary for the employee to establish the work-related injury was the sole cause of the disability.  It is only necessary to show the injury was an Aappreciable or substantial@ contributing cause.  Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1964). 

 

Having carefully reviewed the record, we are satisfied there is more than sufficient evi­dence to support the compensation judge=s determination that the employee was disabled from August 31, 1999 through June 5, 2000 and that her work injury of July 6, 1999, was an appreciable or substantial contributing cause of her disability and need for medical care.  We, accordingly, affirm.

 

2.  Job Search

 

The employer and insurer also contend the employee failed to conduct a diligent job search and the compensation judge erred, therefore, in awarding temporary total disability benefits.  We are not persuaded.

 

The employee stated she began looking for work in both Grand Marais and Duluth after the injury.  She testified she used the computer and internet at the Grand Marais library to access Job Bank listings, contacted job services in Duluth, searched newspaper listings, and attempted to obtain job leads through friends and acquaintances.  In addition, the employee submitted dated printouts or copies of various job listings, application letters and employer response letters.

 

The employer and insurer provided no rehabilitation assistance.  After moving to Duluth, the employee, on her own, obtained the assistance of a QRC through DOLI/VRU.  By report dated April 19, 2000, Mr. Kinnunen observed the employee was Afinancially in very desperate straights,@ was aggressively searching for work and anticipated she would find work in the near future.  (Resp. Ex.  10.)  The em­ployee obtained a job, with higher pay and full benefits, beginning on June 5, 2000.  The compensa­tion judge accepted the employee=s testimony and concluded she had made a reasonably diligent search for employment during the period in dispute.

 

The employer and insurer contend, however, that the employee withdrew from the labor market by moving from Grand Marais to Duluth for reasons unrelated to the July 6, 1999 work injury.  They assert there was nothing to suggest that relocation was necessary for continued employ­ment and the employee was only required to obtain a minimum wage job for approxi­mately 25 hours per week to meet or exceed the pre-injury wage.  We do not agree.

 

In Paine v. Beek's Pizza, 323 N.W.2d 8l2, 816, 35 W.C.D. l99, 206 (Minn. l982), the Minnesota Supreme Court held that an employee who voluntarily removes him or herself from a metropolitan labor market where there are greater opportunities for employment, to a sparsely populated area where few employment opportunities exist, has voluntarily withdrawn from the labor market and is not entitled to temporary total disability benefits.  That is not the case here.  Grand Marais is a small tourist town of about 1,500 people.  The employee testified that many of the businesses are seasonal and hire temporary employees, and that job prospects were not very promis­ing in Grand Marais in the winter.  The employee was living with her parents and, after worker=s compensation benefits were discontinued, her sole source of income was General Assis­tance.  The employee testified she needed to find a way to support herself in the long term, and moved to Duluth, a city of about 86,000 with a much larger job market.  She did, in fact, obtain employment in Duluth with better pay and benefits, and remained in that job through the date of hearing.

 

An employee has the right to choose where she will live.  Id. 815, 35 W.C.D. at 205.    The reasons for the move are, for the most part, irrelevant.  Rather, the question is whether Aa rea­sonable person in the employee=s place would have made the move expecting to earn [a] reasonable livelihood.@  Id. at 816, 35 W.C.D. at 206.  In moving from Grand Marais to Duluth the employee improved her prospects for gainful employment, doing only what an employer and insurer might normally expect or request of an employee in such circumstances.  We, therefore, affirm the deter­mination that the employee conducted a reasonably diligent search for employment within her restrictions and the judge=s award of temporary total disability benefits from August 31, 1999 to June 5, 2000.

 

3.  Medical Expenses/ MRI scan

 

The employer and insurer also assert that the medical expenses claimed by the em­ployee should have been denied, relying on the opinion of the independent medical expert (IME), Dr. Vorlicky.  Based on the IME report, the appel­lants contend the employee=s injury was temporary and that any treatment beyond three months was neither causally related or reasonable and necessary.

 

In reaching his decision, the compensation judge accepted the treatment records and opinions of the employee=s treating physicians.  The judge explicitly considered and rejected the opinions expressed in Dr. Vorlicky=s report.  (Mem. at 9.)   It is the province of the compensation judge to determine the weight and credibility to be given to expert testimony.  Where there is a con­flict among the opinions of medical experts, resolution of the conflict is the function of the compen­sation judge and will not be reversed by this court so long as there is sufficient foundation for the expert=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  There is more than sufficient evidence to support the compensation judge=s choice of experts and his award of medical ex­penses in this case and we, accordingly, affirm.

 

Finally, the employer and insurer argue that the MRI scan of July 13, 1999 did not com­ply with the treatment parameters on medical imaging, Minn. R. 5221.6100, and the compensation judge erred in order­ing payment for the scan. 

 

The employee sought treatment on July 10, 1999, at the Cook County Northshore Hos­pital reporting acute low back pain and shooting pain into the right leg.  The doctor noted the em­ployee ambulated with difficulty, favoring her right leg, and had pain with flexion and extension of her right foot and great toe, making assessment of the muscle groups difficult.  Noting the persis­tence and severity of the employee=s symp­toms, the examining phy­sician ordered an MRI scan.  Shortly after the emergency room visit, the employee=s mother called the doctor, reporting the em­ployee was Afreezing.@  The doctor reassured her, indi­cating he didn=t think discitis was likely.  Given these circumstances, we cannot say that the com­pensation judge=s determination that the July 13, 1999 MRI scan was appropriate and fell within an exception to the treatment parameters, was clearly erroneous, and we affirm.