ROBERT V. BREW, JR., Employee/Appellant, v. COLLEGE OF ST. SCHOLASTICA, SELF-INSURED, adm'd by BERKLEY RISK ADM'RS, Employer-Insurer.

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2003

HEADNOTES

REHABILITATION - ELIGIBILITY.  Substantial evidence supports the compensation judge=s determination that the employee is not entitled to a rehabilitation consultation because the employee has no residual disability or restrictions relating to his work related injury, and therefore has no underlying entitlement to rehabilitation benefits.

Affirmed.

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

Compensation Judge: Gregory A. Bonovetz

OPINION

MIRIAM P. RYKKEN, Judge

The employee appeals from the compensation judge=s denial of his claim for rehabilitation consultation on the basis that his work-related injury to his low back does not represent a substantial contributing cause of his current medical condition and physical restrictions.  Concluding that substantial evidence of record supports the compensation judge=s findings, we affirm.

BACKGROUND

On April 18, 1994, Mr. Robert Brew, the employee, worked  in the facilities services department of the College of St. Scholastica, the employer.  On that date, the employee was working as a painter, when he sustained an injury to his low back while stooping over to paint a baseboard in a building hallway.  The employer, who was self-insured for workers= compensation liability on that date, admitted primary liability for the employee=s injury and eventually paid temporary total and temporary partial disability benefits and medical expenses. 

Following his injury, the employee experienced pain in his low back extending into his pelvic area.  Dr. Malcolm Scott, the Duluth Clinic, diagnosed the employee as having sustained an acute back strain with left lumbosacral strain.  X-rays showed flattening of the lumbar lordosis but no other bony pathology.  Dr. Scott restricted the employee from work for the remainder of the week, approximately four days.  The employee returned to work on a light-duty basis by April 25, 1994.  On April 29, 1994, Dr. Jedd Downs, in the occupational medicine department at the Duluth Clinic, diagnosed Aanterior rotated innominate with some myofascial gluteal strain and possibly referred pain down the left lateral posterior thigh, felt to be work-related secondary to poor posture and tension on low back and gluteal muscles.@  Dr. Downs prescribed physical therapy and assigned physical work restrictions including a ten-pound lifting limit, a limitation on lifting above shoulder height, and two to four hours of work per day as tolerated.  By May 12, 1994, the employee=s work hour limitation was increased to four hours per day at sedentary work.

On May 20, 1994, the employee again was examined by Dr. Downs and reported continued pain, poor sitting tolerance at work, and increased pain when stepping over items while checking inventory at work.  Tests consulted on that date with Dr. Downs were negative; Dr. Downs=s chart note states that in his opinion, AMr. Brew is reporting symptoms out of proportion for his physical findings.@  Dr. Downs continued the employee=s work restrictions, but released him to work Athe bulk of an 8 hour day except for the time that he=s in work conditioning or pelvic stabilization@ during the next three weeks. 

The employee participated in a work hardening program through the Polinsky Medical Rehabilitation Center.  On June 13, 1994, he reported to Dr. Downs, inquiring about the possibility of an MRI scan, as he felt he had been compliant with his treatment program but was concerned that his symptoms were not improving.  Dr. Downs=s chart notes reflect that during the past 1 2 weeks, the employee had reported to his physical therapy sessions but had either refused to participate or had left early, due to his increased pain from the therapy.  Dr. Downs prescribed continuing work-hardening and a pelvic stabilization program. An MRI scan, performed on June 14, 1994, was interpreted as essentially negative, with minimal degenerative disc changes present at the L5-S1 level and no evidence of herniation and mild degenerative changes in facet joints.  By June 21, 1994, Dr. Downs advised that the employee could increase from his 4-8 hours of clerical work to 4 hours per day of painting combined with 4 hours of clerical work. 

By mid-July, the employee reported increased pain with painting and inability to comfortably stand erect; Dr. Downs diagnosed a recurrent left lumbosacral strain and restricted the employee to one hour painting each morning and afternoon, with time off work to attend physical therapy.

On July 13, 1994, the employee was evaluated by two physical therapists at Center Therapy, who found no mechanical dysfunctions or soft tissue changes to correlate with his complaints of symptoms.  As of July 21, Dr. Downs found no significant findings on physical examination to document his underlying pain complaints and concluded that the employee was at maximum medical improvement.  Dr. Downs advised that the employee could work six hours per day for a two-week period, and eight hours per day thereafter, with avoidance of overhead painting.  By early August 1994 the employee worked six hours per day, performing limited duties.^[1]  On August 6, 1994, he suffered an inferior wall myocardial infarction, and underwent two vessel coronary artery bypass graft surgery on August 15, 1994.  The employee did not return to work with the employer after his myocardial infarction. 

Dr. Downs reexamined the employee on September 23, 1994, and stated that he Aappears to have resolution of mechanical back pain with maybe some mild persistent muscle soreness,@ and that

There=s a good chance he will not have any permanent partial disability.  At this juncture, if he would not have had the heart attack, he would be cleared to work with a 50 lb. lifting restriction which would be consistent with lifting hay bales which he was doing prior to his heart attack, however, at this time he would not be considered able to work as a painter at St. Scholastica given his recent medical history.

The employee apparently failed to attend a follow-up appointment scheduled for October 3, 1994, with Dr. Downs.  On October 5, 1994, the employer and insurance administrator served the employee with notice of maximum medical improvement, along with Dr. Downs=s Report of Work Ability report dated September 23, 1994.

Although the employee continued to receive cardiac care and rehabilitation, he received no further treatment for his low back between September 1994 and March 1996.  At an exam on September 19, 1995, Dr. Scott stated that AThis man has not worked since his coronary artery bypass graft; in part due to that and in part due to the fact that he has chronic structural back problems.  Nonetheless, he has huge callouses on his hands so I guess he is doing some things.  I think he needs to be trained in a type of work that allows his particular bony structure and, particularly his lower back, to function.@

On March 14, 1996, the employee was re-examined by Dr. Downs, at which time he reported low back pain.  Dr. Downs diagnosed mechanical back pain with associated secondary myofascial restrictions, and prescribed a regimen of up to twelve physical therapy sessions and an epidural injection at the S1 level.  However, the employee attended only three of eight scheduled sessions and failed to attend the remaining appointments.    The physical therapist chart notes state that there was no improvement in the employee=s condition due to poor compliance with the prescribed treatment plan. 

The employee applied for and has received Social Security disability income since June 1, 1995.  In a decision issued on January 13, 1997, an administrative law judge with the Social Security Administration found that A[t]he claimant is severely impaired by chronic back strain and coronary artery disease@ under the terms of the Social Security Act.^[2] 

Although the employee received medical treatment for his cardiac and other conditions between April 1996 and March 14, 2002, the record contains no documentation of treatment for the employee=s low back condition during that period of time.  The employee testified that he felt that he had recovered from his heart condition by approximately 1999, that he still considers himself disabled due to his back condition, and that at some point after 1999 he attempted to return to work for a former employer, but resigned after four days because of worsened low back symptoms.

On March 14, 2002,  the employee consulted Dr. Lynn Quenemoen for his back condition as he needed to return to work for financial reasons.  On that date, he reported low back symptoms to Dr. Quenemoen, who assessed chronic low back pain and prescribed physical therapy.  The employee attended six physical therapy sessions, and by April 4, 2002, reported some improvement in his symptoms, but continued left-sided low back pain, especially with prolonged standing or any leaning forward.  An MRI of the lumbar spine, taken in April 2002, was negative, showing lumbarization of S1, but no evidence of disc injury or dehydration.  By May 22, 2002, Dr. Quenemoen diagnosed chronic low back and pelvic girdle pain, but found the cause of the employee=s pain to be unclear.  He referred the employee to the physiatry department to assess whether the employee had a pain syndrome rather than a problem resulting from a correctable anatomic injury. 

On August 1, 2002, Dr. Skip Silvestrini, Polinsky Medical Rehabilitation Center, examined the employee and diagnosed a postural fatigue syndrome and determined that the employee would benefit from a good exercise and conditioning program.  By October 2, 2002, the last medical appointment documented in the record, the employee reported some improvement from physical therapy but no Adramatic benefit in symptomatology,@ according to Dr. Silvestrini=s chart notes.  Dr. Silvestrini noted that the employee was very deconditioned, and recommended that he continue physical therapy.

On May 17, 2002, the employee filed a rehabilitation request for a rehabilitation consultation with John Witzke, Mesabi Rehabilitation Services.  The self-insured employer denied the employee=s request, alleging that no medical support existed for the employee=s claim that he continued to experience effects and permanent restrictions as a result of his 1994 work injury.  The employer also argued that the employee was permanently disabled and receiving Social Security disability, and therefore was not qualified for rehabilitation services.  The matter was considered at an administrative conference on July 26, 2002.  By decision and order pursuant to Minn. Stat. ' 176.106, issued on July 30, 2002, a representative of the Commissioner of Department of Labor and Industry awarded the employee=s rehabilitation consultation.   The employer appealed from the commissioner=s decision and requested a formal hearing. 

On October 7, 2002, the employee was examined by Dr. John Dowdle, orthopedist, at the request of the self-insured employer.  Dr. Dowdle diagnosed mechanical low back pain by report, subjective complaints without objective findings, and significant functional overlay.  He concluded that the employee sustained a temporary low back strain as a result of his April 18, 1994, injury, but that he reached MMI for that injury by September 1994.  Dr. Dowdle concluded that the physical therapy the employee received in 1996 was not reasonable and necessary as it related to the employee=s low back injury, and that the employee needs no further care or treatment, nor work restrictions, related to his 1994 work injury.  Dr. Dowdle recommended a psychological or psychiatric evaluation regarding the employee=s continued complaints of symptoms and disability.   

 This matter was heard before a compensation judge on October 25, 2002.  By Findings and Order, served and filed November 21, 2002, the compensation judge denied the employee=s claim for a rehabilitation consultation.  He found that,

The lumbosacral strain of April 18, 1994 is not a substantial contributing cause of any low back pain or discomfort from which the employee presently may suffer.  The lumbosacral strain of April 18, 1994 is not a substantial contributing cause of any physical restrictions which may apply to the employee=s low back.

The employee appeals, arguing that he remains restricted as a result of that injury. 

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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

Based on his conclusion that the employee=s 1994 work-related injury no longer substantially contributes to the employee=s low back symptoms or physical restrictions, the compensation judge denied his claim for a rehabilitation consultation.  The employee appeals, arguing that he has not fully recovered from his low back injury, and that he continues to be restricted as a result of that injury.  The employer argues that the employee long ago withdrew from the labor market and has been receiving Social Security disability income since 1995, primarily due to his cardiac condition. The employer further argues that the employee=s injury of April 18, 1994, is not a substantial contributing cause to any ongoing disability.

Minn. Stat. ' 176.102, subd. 4a, provides, in part, that A[a] rehabilitation consultation must be provided by the employer to an injured employee upon request of the employee, the employer, or the commissioner.@  The primary purpose of a rehabilitation consultation is to provide a determination on the issue of whether an employee is qualified to receive rehabilitation services.  Minn. R. 5220.0100, subp. 26; Wagner v. Bethesda Hospital, slip op. (W.C.C.A. January 5, 1995).  However, an employee=s request for a rehabilitation consultation may be challenged on the basis that the employee has no underlying entitlement to benefits.  Cf. Kautz v. Setterlin, 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).

In Judnick v. Sholom Home West, slip op. (W.C.C.A. August 4, 1995), this court stated that,

[A]n employer and insurer may not defeat a request for a rehabilitation consultation by arguing that rehabilitation services are not vocationally necessary to return the injured employee to suitable, gainful employment.  See Minn. R. 5220.0100, subp. 22.  Employers and insurers may, however, assert other defenses and threshold liability issuesBsuch as, but not limited to, allegations of complete recovery from injury, lack of notice, the expiration of the statute of limitations, and refusal of suitable employment under Minn. Stat. ' 176.101, subd. 3e.  (Footnote omitted.)

In this case, the employee sustained an admitted injury in 1994.  Whereas a rehabilitation consultation would otherwise be mandatory, pursuant to the statute, in this case the compensation judge determined that the employee=s 1994 injury no longer substantially contributes to the employee=s current low back pain and discomfort, and that the 1994 injury is not a substantial contributing cause of the physical restrictions related to the employee=s low back condition.  In his memorandum, the compensation judge noted that in July 1994, and again by late September 1994, the employee=s treating physician found the employee to have reached resolution of his mechanical low back pain.  The judge concluded that

At the present time a preponderance of the evidence clearly establishes that the employee=s complaints in effect center around his deconditioned status, his postural fatigue.  No medical evidence relates this deconditioning, this postural fatigue, to a lumbosacral strain which occurred well over eight years ago and from which he effectively recovered within months of that injury.

The compensation judge determined that the employee had recovered from the effects of his 1994 work-related injury and has no ongoing residual disability as a result of that injury.  Since substantial evidence of record, including the employee=s medical records, supports the compensation judge=s findings, we affirm his denial of the employee=s claim for a rehabilitation consultation on the basis that the employee is not entitled to such a consultation.