RAYMOND H. WAGNER, Employee, v. CITY OF ST. PAUL, SELF-INSURED, Employer/Appellant, and SPECIAL COMPENSATION FUND, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 18, 2002

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION; EVIDENCE - VOCATIONAL EXPERT.  Where the testing by the vocational expert on whose opinion the judge relied was thorough and extensive, the compensation judge was not bound to rely on contrary expert medical opinion as to permanent total disability, and the judge=s award of permanent total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that surveillance videotapes of the employee revealed less apparent pain behavior than was exhibited by the employee at his vocational and medical examinations.

 

Affirmed.

 

Determined by Pederson, J., Wilson, J. and Rykken, J.

Compensation Judge:  Kathleen Behounek

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge's award of permanent total disability compensation.  We affirm.

 

BACKGROUND

 

Raymond Wagner graduated from high school in 1957 and in that same year took a job as a laborer with the City of St. Paul in the Public Works Department, cleaning, repairing, and maintaining city streets.  In 1975 or 1976, while still employed with the City, Mr. Wagner [the employee] enrolled in and completed some business courses, but he has not received any professional certificates or other degrees beyond his high school diploma.  On August 28, 1979, while working as a crew leader, the employee sustained a work-related injury to his low back, for which he subsequently underwent a laminectomy at L4-5 and was off work for about eighteen months.  The City of St. Paul [the employer], which was and remains self-insured against workers compensation liability, admitted liability and commenced payment of various benefits, including compensation for an Aold law@ permanent partial disability of 10% of the back.  The employee=s weekly wage at the time of this injury was sufficient to entitle him to the maximum workers= compensation rate.

 

Subsequently, on November 26, 1985, while performing essentially the same work except as a crew leader, at a weekly wage of $532.60, the employee sustained a second work-related injury to his low back.  The employee was off work for about three months with this injury and received a permanency rating of 3.5% of the whole body.  By 1985 the employee had worked his way up in his job to a position as supervisor of several road crews.  On May 24, 1993, while so employed and earning a weekly wage of $800.00, the employee sustained work-related bilateral hernias and was subsequently off work for another six weeks.

 

Finally, on September 30, 1997, while continuing to work for the employer as a supervisor, at a weekly wage of $855.84, the employee sustained yet another work-related injury to his low back, for which he was treated initially with physical therapy and then, on November 6, 1997, with a left L4-5 decompression of L4 laterally and a left L5-S1 diskectomy.  The employee returned to work for a few weeks following this surgery, but, on March 18, 1998, he returned to the hospital for a repeat L5-S1 hemilaminectomy, after which he returned to work only part time.  On August 14, 1998, the employee was taken back off work with continuing pain, and an MRI was scheduled.  The MRI, conducted on August 19, 1998, revealed a moderate-sized disc herniation at the L5-S1 level, which was displacing the left S1 nerve root.  On October 22, 1998, the employee underwent an L5 laminectomy, an L5-S1 medial fasciectomy and foraminotomy, and a posterolateral fusion from L5 to S1, performed by Dr. Jerone Kennedy.  The employee has not worked since August 14, 1998.  In addition to his back injuries, the employee, who is presently sixty-three years old,  is subject to diabetes mellitus, hypertension, depression, and hypercholesterolemia.  He currently receives both social security disability benefits and PERA disability benefits.

 

Following his fusion surgery, Dr. Kennedy referred the employee to occupational health specialists for work hardening therapy, beginning February 3, 1999.  The employee was reported by his therapists to be Apleasant to work with and eager to return to work,@ to Apush himself and remain self motivated,@ and to be Amaintain[ing] a positive attitude.@  He was discharged, however, on March 12, 1999, upon continuing reports of muscle spasm and difficulty sleeping at night, with associated Ajerks@ of his body and continued lower extremity tingling and numbness observed by his therapists.  He was referred back to occupational health specialist Dr. Vijay Eyunni, who had treated him earlier.  Dr. Eyunni diagnosed post lumbar sacral fusion with reoccurrence of lumbar radiculopathy, noting also that the employee had Asome twitching at times while he is sitting either in the chair or on the examining table.@  By October 8, 1999, Dr. Eyunni had diagnosed in part Achronic pain and significant disability,@ while noting again Aconstant changing of positions and jerky movements secondary to twitching.@

 

On October 25, 1999, the employee commenced a three-day evaluation by vocational expert Dr. Phillip Haber.  After a very substantial battery of both physical and psychological tests, Dr. Haber concluded that the employee was Apermanently and totally disabled from any and all occupations which exist within the United States economy on a sustained and gainful basis.@  On November 18, 1999, the employee was examined by Dr. Todd Hess at United Hospital Pain Center.  Dr. Hess noted the employee=s Anumerous jerks throughout our entire evaluation@ and the evident psychological component in Dr. Haber=s report.  Diagnosing in part chronic low back pain and a history of multiple work-related issues, Dr. Hess increased the employee=s medication and recommended an individualized program with physical reconditioning rather than a conventional pain program, given the employee=s psychological problems.

 

On November 19, 1999, the employee filed a claim petition, alleging entitlement to permanent total disability benefits continuing from August 14, 1998, consequent to his 1979, 1985, 1993, and 1997 work injuries.  In its answer, filed December 13, 1999, the employer admitted liability for the 1979, 1985, and 1993 injuries but denied liability for any work-related injury on September 30, 1997, asserting that any acceptance of liability for the latter was due to a mistake of fact.  With regard to the employee=s specific claim, the employer asserted further that Adetermination of permanent and total disability is premature as the employee has failed to undertake any attempt to return to work subsequent to his most recent surgical procedure [and] has therefore failed to conduct a reasonable and diligent job search.@

 

The employee=s permanent partial disability consequent to his 1979 and 1985 work injuries had been rated at the equivalent of 10.6% of the whole body.  In a Health Care Provider Report dated January 17, 2000, Dr. Kennedy rated the employee=s total post-1997-injury permanent whole-body impairment at 33% of the whole body. On March 1, 2000, the employee underwent an independent medical examination by Dr. Mark Friedland, whose diagnosis acknowledged the employee=s surgeries and included A[v]ery significant functional overlay.@  Upon examination, Dr. Friedland noted that the employee Agrimaced and repeatedly jerked his body and lower extremities complaining of >spasms= of his back@ and Afeigned falling backwards with [heels and toes] maneuvers although he really did not appear to lo[]se balance at all.@  It was Dr. Friedland=s conclusion that the employee was not totally disabled and was capable of full-time employment, provided that he avoid lifting over twenty pounds, that he avoid repetitive bending, twisting or stooping, and that he be allowed to change position intermittently between standing, sitting, and walking.  Dr. Friedland also rated the employee=s total whole-body permanent partial disability at 31%.

 

On April 24, 2000, the employee was examined again by Dr. Hess, who, expressly noting no signs of medication misuse, continued the employee=s OxyContin, Percocet, Celexa, and Nortriptyline prescriptions.  When he saw the employee again on July 17, 2000, Dr. Hess noted expressly that the employee Ais able to do some light work around the house@ and Ais able to once in awhile look at mowing his lawn which I have encouraged him to do as long as he does not do any heavy lifting.@  Nevertheless, noting again the employee=s Aintermittent jerking motion@and his Aage, his significant physical limitations and impairment, and also his vocational rehabilitation possibilities@ as assessed by Dr. Haber, Dr. Hess concluded that the employee was permanently and totally disabled from all occupations.

 

Between May 25, 2000, and September 14, 2000, the employee underwent several hours of surveillance by an investigator, during which he was videotaped performing various activities including the following:  pushing a gardening cart, lifting flats of flowers, planting flowers on his hands and knees, watering flowers, bending to ninety degrees at the waist, raking or hoeing in his garden, carrying a garden spade and pick axe, mowing his lawn, packing up his truck and boat, carrying two suitcases and loading them into his truck, carrying groceries, picking up and moving wooden boxes, pushing his boat and trailer, cleaning his boat=s motor and windows, loading and unloading a wheel chair and a walker into and out of his vehicle, and pushing his wife in the wheel chair.  While the employee does appear to be favoring his back in the course of most of the videotaped activity, during none of the videotaped activity does the employee exhibit any of the jerking and grimacing pain behavior that he had exhibited in the course of his examinations by Dr. Haber and Dr. Friedland.

 

Dr. Friedland was asked to review the surveillance tapes, and on January 23, 2001, he testified by deposition.  Upon being asked to review the surveillance videotapes and to compare their content with the employee=s examination behavior, Dr. Friedland noted a Avery dramatic difference in [the employee=s] appearance and movements.@  After reviewing also the employee=s job description as Supervisor I with the employer, Dr. Friedland concluded also that the employee was fully capable of performing the duties described.  Dr. Haber also reviewed the surveillance videotapes.  In his report on January 29, 2001, Dr. Haber acknowledged the absence of conspicuous pain behavior on the videotapes, but he nevertheless confirmed his opinion that the employee is permanently and totally disabled, finding Anothing in the . . . video tapes which change[s] my opinion in this matter.@  Dr. Haber explained that, as a physically handicapped person himself, he considered Athat it is good for [the employee] to be able to get out of the house and do as much as he can; however, our evaluation does not suggest that he could perform these activities on a daily basis.@

 

On January 26, 2001, the employee had amended his claim petition to allege entitlement also to penalties for the employer=s failure to pay permanent partial disability benefits as rated by Dr. Friedland.  Prior to hearing of the matter, the parties agreed to a compromise settlement of the employee=s permanency claim, closing out future permanency claims up to 33% of the whole body.  The matter came on for hearing on February 15, 2001.  The employer stipulated at hearing that it had withdrawn its denial of liability for the employee=s 1997 work injury, and issues remaining for litigation included the employee=s entitlement to permanent total disability benefits continuing from August 14, 1998.^[1]  In his own testimony at hearing, the employee indicated that his current pain was normally at about a level eight on a scale of zero to ten and that his current symptoms were pain down the back and outer side of the left leg into his foot, together with spasms that radiate from his lower back all the way up into his shoulders.  The employee suggested that the main aspects of his supervisor job that he was unable to perform were the constant driving that was entailed, including the frequent getting in and out of the vehicle, and fulfilling expectations that he should sometimes also aide in the crew=s shoveling and sweeping duties and in the operation of the asphalt tamper.  The employee testified that Dr. Hess had given him a verbal restriction against driving more than an hour and a half.

 

Among other witnesses testifying at hearing was Gary Erichson, the employer=s street maintenance engineer and the employee=s own supervisor at the time of his 1997 work injury.  Mr. Erichson testified, in part, that employees of the employer performing the Supervisor I position, the position being performed by the employee at the time of his 1997 injury, are Aallowed to demonstrate, they=re allowed to train, they=re allowed to show [their crews] how to do@ their jobs but that individual supervisors may take varying positions as to how much showing or demonstrating or training they do, Adepending on need and what=s going on.@  Mr. Erichson testified that the employee=s Supervisor I position was A[a]bsolutely@ within the employee=s restrictions as to lifting, bending, twisting, stooping, and alternating between standing and walking.  Also testifying at hearing was Robert Pullman, the employee=s qualified rehabilitation consultant.  Mr. Pullman testified in part that, based on the videotapes, he would recommend that the employee return to work at his old Supervisor I job.  Also testifying at hearing was Lisa Peirson, an occupational therapist with whom the employee underwent his work-hardening program.  Ms. Peirson testified in part that, having found the employee far more affected by pain at his therapy sessions than as observed on the tapes, she was Apleasantly surprised and very, very eager to see that he was doing as well as he was.@  Also testifying at the hearing was Bradley Heino, from the investigative firm that took the surveillance videotapes.  Mr. Heino testified, in part, that his firm=s policy is to tape as much activity of the subject as possible and then to edit the tape for Aa representative sample.@  He explained, AFor example, if the employee, you know, were to hold his back or to do some stretching or anything that might indicate that he=s injured, we lay all that documentation down along with the other documentations so that our credibility isn=t compromised.@

 

The record was left open post hearing for a deposition of Dr. Haber, which was conducted on March 23, 2001.  In his deposition, Dr. Haber acknowledged that Awe do have people who are some awfully good fakers,@ but he nevertheless confirmed his opinions of January 29, 2001, explaining that, by Awatching [individuals being tested] the entire three days, . . . if we see inconsistencies, you=ll find them in the work sample.@  Dr. Haber explained further that, in his opinion, the employee=s disability was both physical and psychological:

 

I think it=s a reactive problem.  The MMPI is a pretty good picture of the problem, which I have described.  It=s a reaction which, obviously, contributes to his level of discomfort.

 

In other words, you=ll have the organic abnormalities which are presented by radiology departments and the surgeons, and then superimposed on that, you have the psychological reaction to his injuries and various treatments, and that=s what you=re looking at here is hysterical neurosis conversion-type reaction, and that=s what I=m talking about.

 

Dr. Haber emphasized that, A[i]n this particular case, there=s no sign, and I repeat, no sign, of any elevation on the test which would suggest that [the employee] would consciously in any way produce symptoms for the purposes of manipulating others.@  Dr. Haber testified that, although the surveillance videotape did show the employee performing certain physical tasks successfully, it did not alter his ultimate opinion as to the employee=s disability, Abecause it=s not a candid depiction of [the employee] doing that every day, day in and day out.@

 

By findings and order filed May 23, 2001, the compensation judge concluded in part that, based on the employee=s age, education, experience, and disability, the employee was permanently and totally disabled, was incapable of securing anything more than sporadic employment resulting in an insubstantial income, and was accordingly entitled to permanent total disability compensation.  The employer appeals.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

As the compensation judge indicated in her memorandum, permanent total disability is defined by statute at Minn. Stat. ' 176.101, subd. 5, as an injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income, provided that the employee has sustained a level of permanent partial disability.  The statute further defines Atotally and permanently incapacitated@ to mean that the employee=s disability, in combination with the level of permanent partial disability set forth in specified clauses of the subdivision, causes the employee to be unable to secure anything more than sporadic employment resulting in insubstantial income.  Other factors, including the employee=s age, education, training and experience, may also be considered in determining whether the employee is totally and permanently incapacitated after the employee meets the specified threshold criteria.  In her memorandum, the compensation judge summarized the employee=s medical history as well as the three-day evaluation by Dr. Haber and resultant findings.  The judge indicated that she had also personally reviewed the surveillance videotapes and had concluded that she was not convinced that the employee was capable of performing the videotaped activities on a sustained basis.  She noted that the employee does exhibit some pain behavior while performing some of the activities depicted on the tapes, that at times on the tapes the employee uses objects to support himself, and that at other times he walks with a limp.  She also note that the employee stands up to stretch with particular frequency, that at times he has apparent difficulty getting up from a kneeling position, and that the tapes were made, after all, over a period of four months.  The judge expressly indicated, finally, that she did not find convincing Dr. Friedland=s interpretation of the employee=s activities on the videotapes or his opinions as to the employee= ability to work within restrictions.  The judge indicated that she did, on the other hand, A[b]ased on the evidence submitted in this case,@ adopt the opinion of Dr. Haber, that the employee was permanently totally disabled as a result of his work injuries.

 

The employer contends that the judge erred as a matter of law in her conclusion, in part Aby relying upon medical opinions and restrictions imposed on the employee by medical providers who did not review surveillance and other investigative information relating to the employee=s functional abilities in light of the employee=s representation of symptoms to those doctors.@  The employer contends also that the judge was reversibly inconsistent in concluding as she did, while having also determined that the videotape surveillance of the employee showed a depiction of the employee that was different from the depiction rendered through the employee=s treating physicians and vocational expert.  Finally, the employer contends that the judge=s finding of permanent total disability was unsupported by substantial evidence.  We are not persuaded.

 

Contrary to the employer=s suggestion, all three of the employer=s arguments pertain essentially to issues of fact, not law.  With regard to the argument that the judge relied on Amedical opinions . . . by medical providers who did not review surveillance,@ we would emphasize that the principal expert opinion upon which the judge relied in this case was that of a rehabilitation expert, Dr. Haber, not a medical expert, and that Dr. Haber did review the tapes.  Dr. Haber=s testing of the employee=s vocational potential was thorough and extensive, spanning three days and including both psychological and physical elements, and his expertise in vocational evaluation was uncontroverted.  We acknowledge that Dr. Haber=s opinion might be held insubstantial relative to a medical opinion in certain areas such as assessment of medical causation, but in the area of vocational capacity it is not insubstantial.  Indeed, even in the area of causation, even unopposed medical opinion, though it may not be ignored, is not absolutely dispositive.  See Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994) (while medical opinion evidence as to causation is desirable, it is not essential where there is other reliable evidence on the issue); Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974) (although, under Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969), unopposed expert medical testimony cannot be disregarded, such testimony is not necessarily conclusive upon the trier of fact).  Even were we to conclude that Dr. Friedland=s medical opinion was, because other physicians had not also viewed the surveillance tapes, the only one in evidence of sufficient foundation to be creditedBand we do not so conclude^[2]Bthe compensation judge was not bound to rely on Dr. Friedland=s expert opinion rather than on Dr. Haber=s.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  Nor do we find any reversible error in the judge=s acknowledgment that the surveillance tapes revealed somewhat different pain behavior than that exhibited by the employee at his medical examinations.

 

While a conclusion contrary to that reached by the judge in this matter would not have been unreasonable, this court=s review function is not to assess the reasonableness of a decision contrary to that reached by the compensation judge.  Because it was neither legally erroneous nor unsupported by substantial evidence, we affirm the compensation judge=s award of permanent total disability benefits in this matter.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.