Christenson v. Metro Refuse

RICHARD M. CHRISTENSON, Employee, v. METRO REFUSE and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants.

TEMPORARY PARTIAL DISABILITY; EARNING CAPACITY. Substantial evidence, including expert medical opinion, supported the compensation judge=s conclusion that the employee was only capable of working four hours a day as of the date of hearing.

The employer and insurer appeal from the compensation judge=s finding that the employee was unable to work more than four hours per day as of the date of hearing. We affirm.

The employee sustained a work-related injury to his neck, upper back, and low back on March 17, 1989, while employed by Metro Refuse [the employer] as a truck driver. As a result of those injuries, the employee has been restricted to light sedentary work.

The employee began treating with Dr. Steven Trobiani on March 9, 1990, and, on June 18, 1991, Dr. Trobiani restricted the employee to four hours of work per day. The employee has lived in Florida since late 1994, where he has worked in a variety of light duty clerical jobs. He has not worked more than four hours a day since mid 1991. The employer and its workers= compensation insurer have paid the employee temporary partial disability benefits based on his actual earnings. In 1995, the employee was adjudicated as having a 3.5% permanent partial disability of the whole body for chronic muscle spasm of the thoracic spine.

On August 8, 2001, the employee filed a claim petition seeking temporary partial disability benefits continuing from April 2, 2001.^[1] The employer and insurer answered that, because the employee had failed to perform a reasonable and diligent job search and had self-limited his employment options, he was not entitled to temporary partial disability benefits.

In a report dated January 8, 2002, Dr. Trobiani opined that A[a]s a consequence of the low back pain and the need to lie down after four hours of sitting, standing and walking, Mr. Christenson is restricted to working a four hour work day, five days per week.@

The matter proceeded to hearing on January 10, 2002. After that day of hearing, the parties entered into a stipulation for settlement wherein the employer and insurer agreed to pay the employee $11,339.77 in full, final, and complete settlement of his claims for temporary partial disability through January 13, 2002, and to pay temporary partial disability benefits through April 12, 2002, based on the employee=s actual earnings. The parties also agreed that the employee would undergo an evaluation with neurologist Dr. Steven Stein as well as a functional capacities evaluation [FCE].

The FCE was scheduled for March 5 through March 7, 2002. March 6 and March 7 were scheduled to be eight-hour work simulations; however, on each of those days, the employee left after four hours, stating that he had increased pain and needed to go home and Arecline.@ The physical therapist observed no overt changes in gait, posture, or appearance when the employee left on each of those dates. The therapist=s recommendation was that the ultimate decision as to whether the employee could work more than four hours per day should be made by physicians.

The exam by Dr. Stein was conducted on March 8, 2002. Dr. Stein opined that an EMG performed in connection with the exam did not reveal any significant denervation or other abnormalities in the lower extremities. He did note, however, that the employee had some cervical degenerative changes which Acould certainly be contributing to neck related complaints and potentially factor into his right upper extremity symptoms.@ According to Dr. Stein, the employee=s Abiggest problem@ was that he had become Aincredibly deconditioned.@ He further reported that AI am really not certain at this point that he would be able to tolerate an eight-hour workday.@

A second day of hearing took place on April 24, 2002. In opening statements that day, the parties explained to the judge that the sole issue before him was whether the employee was capable of working more than four hours per day at that time. At the end of that day, the record was left open, in part, for the deposition of Dr. Stein. During that deposition, taken on May 10, 2002, Dr. Stein testified that, due to subjective complaints, the employee could not work more than four hours a day and that Aif nothing more is done at this point in time, I don=t think he would be successful in attempting a 40-hour work week.@ Dr. Stein therefore recommended that the employee engage in a conditioning program.

In findings and order filed on July 24, 2002, the compensation judge determined that the employee was at that time unable to work more than four hours per day in light sedentary employment due to significant deconditioning. The employer and insurer appeal.

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.

The employer and insurer contend that the evidence overwhelmingly establishes that the employee can work an eight hour day and that the judge incorrectly weighed the evidence. The issue under our standard of review, however, is not whether the evidence supports an alternative finding, but whether substantial evidence supports the compensation judge=s finding. Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239. Here, substantial evidence supports the judge=s decision as to the employee=s inability to work full time.

At hearing, and again at oral argument, the employer and insurer stressed the employee=s lack of motivation and failure to look for work that would pay more than the $5.15 per hour he was earning at the time of trial. The employer and insurer also emphasized certain comments made by the employee to his QRC, to the effect that he was not inclined to job search because a higher-paying job would not affect his income and would only benefit the employer and insurer. While we understand the employer and insurer=s frustration regarding the employee=s attitude, the fact remains that the sole issue before the compensation judge was whether the employee was physically capable of working more than four hours per day.

Two doctors opined that the employee could not work more than four hours per day in his current condition. One of these doctors, Dr. Trobiani, has been the employee=s doctor since 1990, and, as recently as January of 2002, he opined that the employee was restricted to working a four-hour work day, five days per week. The other doctor, Dr. Stein, was the employer and insurer=s examiner, and, while he did testify that the employee was not incapable of working 40 hours a week Afrom an objective standpoint,@ Dr. Stein ultimately testified that, based on subjective complaints and the employee=s Aincredibly@ deconditioned state, the employee could not work more than a four hour day at that time.

The employer and insurer may have legitimate concerns about the employee=s apparent lack of motivation to mitigate his wage loss. As of the hearing date, however, it was clearly reasonable, based on the opinions of Drs. Stein and Trobiani, for the compensation judge to conclude that the employee was only capable of working four hours a day. We therefore affirm his decision.^[2]

^[1] The employer and insurer had apparently discontinued payment of temporary partial disability benefits when the employee went off work in February 2001, and did not recommence payment when the employee returned to work in April 2001.

^[2] We note that, in an unappealed finding and order, the compensation judge found that the employee was in need of a gradual conditioning program designed to increase his endurance, and the judge ordered the employer and insurer to pay for a pool therapy reconditioning program. An employee has an obligation to cooperate with reasonable physical and vocational rehabilitation efforts.