Bettie v. Homeward Bound, Inc.

KEDERICK R. BETTIE, Employee, v. HOMEWARD BOUND, INC., and AMERICAN COMPENSATION INS. CO./RTW, INC., Employer-Insurer/Appellants.

EVIDENCE - CREDIBILITY. On the facts of this case, substantial evidence, including the opinions of the employee=s treating chiropractor and neurologist, adequately supports the compensation judge=s determination that the employee was a credible witness.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee=s testimony and the reports and opinions of his treating medical providers, supports the compensation judge=s finding that the employee sustained a permanent injury to the lumbar back that caused, aggravated or accelerated a small left-sided disc herniation at L4-5, together with consequential and compensatory cervico-thoracic and right shoulder symptoms.

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Substantial evidence supports the compensation judge=s award ordering payment of the employee=s medical expenses for treatment as a result of his low back injury.

The employer and insurer appeal from the compensation judge=s findings that (1) the employee was a credible witness, (2) the employee=s personal injury caused, permanently aggravated or accelerated a left-sided disc herniation at L4-5, together with consequential, compensatory neck, mid-back and right shoulder symptoms, and (3) the medical and chiropractic treatment provided to the employee was reasonable and necessary. We affirm. We deny the employee=s October 9, 2002, request for penalties.

Kederick R. Bettie, the employee, began working as an On-Site Supervisor at the Brooklyn Park site of Homeward Bound, Inc., the employer, on February 26, 2001. The employer was insured for worker=s compensation purposes by American Compensation Insurance Company/ RTW, Inc. On January 2, 2002, the employee sustained an admitted injury to his lower back while moving empty grocery boxes away from an emergency exit door.

The employee sought treatment at the Fridley Plaza Urgent Care Clinic on the day of the injury. The doctor diagnosed a back strain with spasm, and took the employee off work through January 8, 2002. The employer then sent the employee to Dr. Donald Johnson on January 3, 2002. Dr. Johnson diagnosed a lumbosacral myofacial strain and released the employee to return to work the following day with light-duty restrictions.

The employee then began treating with Glori Hinck, D.C., on January 7, 2002. Dr. Hinck diagnosed a lumbosacral strain/sprain with severe muscle spasm. The doctor noted lower extremity symptoms suggestive of a lumbar disc injury, and referred the employee for a neurology consultation. Dr. Hinck disagreed with Dr. Johnson=s restrictions, and continued the employee off work through January 14, 2002. Dr. Hinck also referred the employee to Rebecca Stoner, a physical therapist, who provided care focusing on occupational/work hardening activities, body mechanics and self-care management.

The employee was examined by Ronald M. Tarrell, D.O., at the Noran Neurological Clinic, on January 11, 2002. Dr. Tarrell diagnosed a severe lumbar sprain with possible L5 radiculopathy. He ordered an MRI scan and took the employee off work through February 1, 2002. The scan, taken January 16, 2002, showed a small central and left-sided disc herniation at L4-5 with narrowing of the thecal sac, mild posterior facet degenerative change, and disc dehydration. The employee continued to treat with Dr. Hinck. On January 21, 2002, the employee reported an exacerbation of his low back pain along with right shoulder, neck and upper back pain. Dr. Hinck believed the new symptoms were related to postural stresses resulting from the employee=s response to his low back pain and symptoms.

The employee attempted a return to work on February 6, 2002, with light duty restrictions provided by Dr. Hinck and by Dr. Tarrell. The employee reported his pain increased significantly at work, and Dr. Hinck removed the employee from work for another week, stating a return to work during the acute phase would only prolong recovery. The employee returned to Dr. Hinck on February 9 and 11, 2002. The doctor noted appreciably diminished pain in both the low back and upper back and shoulder with treatment. The employee was again released to return to work, part-time, with light duty restrictions on February 13, 2002. The employee=s symptoms again flared-up, and Dr. Hinck took him off work from February 18 through February 25, 2002.

By February 25, 2002, the employee stated his upper back was currently not painful, and his low back symptoms had returned to the February 13, 2002 level. Dr. Hinck noted the employee=s symptoms decreased to 0/10 immediately following treatment and then gradually increased. The employee returned to Dr. Tarrell for a follow-up examination on March 5, 2002. The doctor noted improvement in the employee=s objective and subjective findings, but concluded the employee was not ready to return to work, and continued the employee off work through May 1, 2002. The employee was then seen by Dr. Hinck on March 6, 2002, reporting he was still sore, but felt he was beginning to heal. The doctor=s notes indicate the employee=s low back pain was aggravated by walking too fast or making fast movements. The employee stated he then stopped whatever activity he was doing so his symptoms would not increase. The employee was able to sit better, and could stand on the left leg, but avoided doing so because it caused low back pain. Dr. Hinck believed the employee was improving, although he remained symptomatic in the lumbosacral area and continued to exhibit mild compensatory upper back symptoms.

The employee was examined by Dr. Gary Wyard on March 7, 2002 at the request of the employer and insurer. In his independent medical examination (IME) report, Dr. Wyard diagnosed back pain, without significant objective clinical or radiologic findings, with gross functional overlay and subjective complaints out of proportion to objective findings. He concluded the employee had a myofascial lumbar sprain/strain by history, but had fully recovered and did not need work restrictions or any further treatment or care.

The employer and insurer requested an investigation of the employee, and the employee=s activities were videotaped on February 9 and 10, on March 1 and 2, and again on March 7, 2002 before and after the IME. On March 14, 2002, the employer and insurer served a Notice of Intent to Discontinue Benefits (NOID), asserting the employee was not disabled based upon the IME of Dr. Wyard and the surveillance videotapes and reports, which, they asserted, established the employee had misrepresented the extent of his disability. In an Order on Discontinuance, a compensation judge permitted discontinuance of wage loss benefits effective March 14, 2002. The employee filed an Objection to Discontinuance.

The employee continued to treat with Dr. Hinck, Dr. Tarrell and Ms. Stoner through the date of hearing. The treatment records reflect progressive improvement in the employee=s symptoms, and on April 25, 2002, Dr. Hinck released the employee to return to work as of May 1, 2002, with light-duty restrictions. The employer, however, refused to allow the employee to return to work, and eventually terminated the employee on May 10, 2002.

The matter came on for hearing before a compensation judge at the Office of Administrative Hearings on June 26, 2002. In a Findings and Order, served and filed on July 23, 2002, the compensation judge found the employee had sustained a permanent injury to the lumbar back that caused, aggravated or accelerated a small herniated disc at L4-5, along with compensatory cervical, mid-back and right shoulder symptoms. The judge rejected the employer and insurer=s argument that the surveillance videotapes, along with Dr. Wyard=s opinions, established that the employee had misrepresented his condition, and that he was not disabled, finding the employee=s testimony credible and accepting the opinions of the employee=s treating physicians. The compensation judge ordered the employer and insurer to reinstate wage loss benefits, to provide the services of a qualified rehabilitation consultant (QRC), and to pay medical expenses for the treatment provided by Dr. Hinck and Ms. Stoner and Dr. Tarrell. The employer and insurer appeal.

On appeal, the employer and insurer contend the compensation judge=s determination that the employee=s testimony was credible is not supported by substantial evidence and is clearly erroneous. Appellants assert that, in light of the surveillance tapes, the employee=s testimony was so unbelievable that no reasonable person could find him credible.^[1] They accordingly request that this court reverse the compensation judge=s decision. We decline to do so.

Assessment of witness credibility is the unique function of the finder of fact, and a compensation judge=s finding that a witness was credible must be given great deference by this court. Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). It is not the role of this court to re-evaluate the credibility and probative value of a witness=s testimony. AThe point is not whether we . . . 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). The employer and insurer argue the videotaped surveillance of the employee clearly demonstrates the employee was misrepresenting his physical condition, and the employee=s explanation for the events depicted in the March 7, 2002 videotape is neither plausible nor believable and is not evidence that a rational mind could accept.^[2]

The compensation judge viewed the surveillance videotape at the beginning of the hearing in the presence of the parties. (T. 25-27.) Counsel for the employer and insurer then called the employee as their first witness and had ample opportunity to cross-examine him. (T. at 25-85.) The compensation judge personally observed the employee=s demeanor as he testified. Both Dr. Hinck and Dr. Tarrell had been provided with copies of the surveillance videotapes and reports and the employee=s anticipated testimony. Dr. Hinck prepared a detailed response, stating that Aupon review of the surveillance video tapes I find [the employee=s] behaviors and actions to be consistent with the injuries he sustained and consistent with his reported symptoms and objective examination and MRI findings.@ (Resp. Ex. 6, 5/22/02 letter report.) Dr. Tarrell similarly indicated that nothing he saw on the surveillance videotape was inconsistent with his diagnosis or the employee=s restrictions, or changed his opinions regarding the employee=s disability, stating, AI believe the employee=s complaints are in proportion to his injury and I do not believe he is trying to exaggerate his symptoms.@ (Resp. Ex. 7, 6/3/02 letter report.)

While we can appreciate the employer and insurer=s position in this case, we cannot say, on the evidence as a whole, that the compensation judge=s acceptance of the employee=s testimony as credible is so manifestly and clearly erroneous as to require reversal. We must, therefore, affirm the compensation judge=s decision.

The employer and insurer further contend the compensation judge=s findings regarding the nature and extent of the employee=s injury are not supported by substantial evidence. They assert the employee misrepresented his physical condition and capabilities to his medical providers and that Dr. Hinck and Dr. Tarrell=s opinions therefore lack foundation. The appellants argue Dr. Wyard=s opinion is more objective than those of the employee=s medical providers, and that Dr. Wyard=s opinions should have been adopted.

As the trier of fact, the compensation judge must determine the weight to be given to expert testimony. Where medical expert opinions conflict, resolution of that conflict is the province of the compensation judge and 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. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73. The compensation judge accepted the diagnoses and opinions of the employee=s treating chiropractor, Dr. Hinck, finding them more persuasive than the opinion of Dr. Wyard. Dr. Hinck and Dr. Tarrell diagnosed a severe lumbosacral strain/sprain, with referred pain down the left leg consistent with a small, left-sided herniated disc at L4-5 shown on the January 16, 2002 MRI scan. The employee=s reported symptoms and the examination findings noted by his treating doctors are consistent with this diagnosis. Both Dr. Hinck and the employee=s physical therapist, Rebecca Stoner, noted symptoms in the employee=s right shoulder and upper back (cervical-thoracic spine) which, in their opinion, were the result of compensatory postural changes and stresses related to the employee=s low back injury.

The appellants= argument on this issue is, in essence, an extension of their contention that, based upon the surveillance tapes, the employee was not as disabled as he portrayed himself to be. Having affirmed the compensation judge=s finding that the employee was a credible witness, we must affirm the compensation judge=s determination that the employee sustained a permanent injury to the lumbar back that caused, aggravated or accelerated a small left-sided disc herniation at L4-5, together with consequential and compensatory mid-back, cervical back and right shoulder symptoms.

Finally, the employer and insurer argue substantial evidence does not support the compensation judge=s finding that all treatment received by the employee for his injury was reasonable and necessary. The appellants argue that, in deciding whether chiropractic treatment is reasonable and necessary, the compensation judge must take into consideration all of the factors listed in Horst v. Perkins Restaurant, 45 W.C.D. 9 (W.C.C.A. 1991), and Field-Seifert v. Goodhue Co., mem. op. (W.C.C.A. Mar. 5, 1990). They further assert the compensation judge clearly failed to fully weigh the evidence in determining whether the Noran Clinic treatment, the physical therapy and the chiropractic treatment received by the employee were reasonable and necessary.

Pursuant to Minn. Stat. ' 176.135, subd. 1, an employee shall be furnished with medical or chiropractic treatment Aas may reasonably be required . . . to cure and relieve from the effects of the injury.@ The determination of whether a chiropractor=s services were reasonable and necessary is a factual one to be made by the compensation judge.^[3] In so doing, there are a variety of factors which the judge may take into consideration. AThe appropriate factors will vary from case to case, depending upon the unique circumstances of each situation. . . . [T]he compensation judge should consider all factors which are relevant to the case at hand.@ Fuller v. Naegele/Shivers Trading, mem. op. (W.C.C.A. Apr. 14, 1993); see Field-Seifert, id.

In his memorandum, the compensation judge explained that, based on the treatment records of Dr. Hinck, the chiropractic care to date did not appear to be inappropriate, unnecessary or excessive given the employee=s symptoms. Further, the treatment appeared to be reasonably necessary to assist the employee in returning to work in keeping with his restrictions. The judge further noted little evidence of malingering, symptom magnification or an emotional reaction to the injury. (Mem. at 6.) Dr. Hinck=s treatment notes reflect a gradual improvement in the employee=s symptoms between January and June 2002. The amount of treatment has gradually decreased, and appears to have had good results. Dr. Hinck=s referrals to Dr. Tarrell for neurology consultations and to Ms. Stoner for occupationally-related physical therapy do not appear duplicative or inappropriate under the circumstances. Here, again, the employer and insurer=s position rests primarily on their assertion, rejected by the compensation judge that, based on the surveillance videotapes and Dr. Wyard=s report, the employee was not credible and misrepresented his physical condition to his medical providers. There is sufficient evidence to support the compensation judge=s determination and we must, accordingly, affirm. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. l984).

Subsequent to the employer and insurer=s appeal, on October 9, 1992, the employee moved for penalties pursuant to Minn. Stat. ' 176.225, subds. 1(a) and (b), contending the appeal was groundless and was filed in bad faith or for the purposes of delay, and by so doing the employer and insurer had unreasonably or vexatiously delayed payment of benefits. Counsel for the employee asserts the employer and insurer knew or should have known that an appeal from the compensation judge=s decision on the basis that the findings were clearly erroneous and unsupported by substantial evidence would be unsuccessful.

Regardless of the likelihood of success, Minn. Stat. ' 176.421(3) explicitly includes as a ground for appeal Athe findings of fact and order were clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ We are normally reluctant to issue an award of penalties based on the filing of an appeal, although in certain rare instances it may be appropriate. See Griffiths v. Duluth Transit Authority, 60 W.C.D. 472, 484 (W.C.C.A. 2000). In this case, however, the employer and insurer had a basis for an appeal on substantial evidence grounds given the factual evidence in the case. Compare, e.g., Brening v. Roto-Press, Inc., 306 Minn. 562, 237 N.W.2d 383, 28 W.C.D. 225 (l975). We, therefore, deny the employee=s motion for penalties.

^[1] As described by the employer and insurer, the March 7, 2002 videotape shows the employee running down the steps from his third floor apartment and down the six steps outside the apartment building with his cane in his hand. He Astrided out running@ to his van, and drove toward the building where the IME was to take place with his fiancé in the passenger seat. Sixteen minutes later, the employee=s fiancé was seen in the driver=s seat of the van, and the employee was taped walking across the parking lot to the building. He appeared barely able to walk and climbed the steps to the building with difficulty. When he left the building, about 30 minutes later, his fiancé assisted him down the stairs and into the passenger side of the van. She then drove the van home. When they arrived at the apartment building, the employee got out of the van and used his cane to walk into the building but without leaning on the cane as he had when leaving the doctor=s building. The employee exhibited no problems climbing the stairs. The employee left the apartment building about 2 2 hours later to run some errands. He walked without the use of his cane and moved easily without hesitation. (Er-Insr Brief at 6-7.)

^[2] The employee testified his pregnant fiancé was having contractions and had been at the hospital until 2:00 am the morning of the IME. He had taken Vioxx in the early morning to get some sleep and had overslept. He stated he was in a Ahasty mood@ because it was his understanding that if the IME had to be rescheduled he would have to pay for it, he had no income, and Awith that emotional distress, I came moving down the stairs.@ He testified he drove because of his fiancé=s contractions. While driving, he developed "serious pain" in his back and his leg became numb. When they got to the IME building, he got out of the van and his fiancé got in the driver=s side to find a place to park. The employee testified he was moving very slowly and had difficulty getting up the stairs because by then he was in a great deal of pain. After going home, the employee testified his fiancé iced and massaged his back and he took pain medications. He then lay down for about two hours. (T.71-82.)

^[3] The compensation judge found the treatment parameter rules were not applicable to the employee=s treatment from and after March 14, 2002, as the employer and insurer denied further liability on the basis that the employee had fully recovered from the effects of his personal injury as of that date and needed no further treatment. The employer and insurer did not brief or argue this issue in their brief.