MICHALENE KAHLMORGAN, Employee, v. RAO MFG. and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and SHEFFIELD, OLSON & MCQUEEN, ADVANCED SPINE ASSOCS., MULTI-CARE ASSOCS. OF THE TWIN CITIES, THERAPY CTRS., UNITY HOSP., SUBURBAN RADIOLOGIC CONSULTANTS and MRI/MEDICA, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 14, 2003

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence, including treatment records and the opinion of the employee=s treating doctor, supported the compensation judge=s decision that the employee had not reached maximum medical improvement as of the date of an independent medical examination.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge=s decision that the employee was entitled to a 9% rating for her herniated cervical disc pursuant to Minn. R. 5223.0370, subp. 4D.

 

CALCULATION OF BENEFITS - PERMANENT PARTIAL DISABILITY.  Given the employee=s date of injury, the compensation judge applied the wrong table in calculating the benefits payable for the employee=s permanent partial disability.

 

CALCULATION OF BENEFITS - CONCURRENT BENEFITS.  Given her award of temporary total disability benefits, the compensation judge erred in awarding the employee payment of a lump sum for permanent partial disability.  See Minn. Stat. ' 176.021, subd. 3; Minn. Stat. ' 176.101, subd. 2a(b).

 

Affirmed in part and vacated in part.

 

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

Compensation Judge:  Penny Johnson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s findings regarding maximum medical improvement, temporary total disability benefits, and permanent partial disability benefits.  We affirm in part and vacate in part.

 

BACKGROUND

 

The employee sustained a work-related injury to her cervical spine in July of 2000^[1] while working for RAO Manufacturing [the employer].  Her symptoms consisted of sharp shooting pains in her neck and shoulder as well as numbness and tingling in her left arm.  On September 25, 2000, Dr. Orrin Mann took the employee off work retroactively to September 21, 2000.  An MRI performed on October 12, 2000, revealed a large left sided C6-7 disc herniation.  The employee was then referred to Dr. David Kraker, who performed an anterior spinal fusion at the C6-7 level on November 6, 2000.  The employee initially had relief from the left arm symptoms but had continued aching in the neck and shoulder.

 

Dr. Kraker examined the employee on January 24, 2001, and prescribed physical therapy.  When the employee returned to Dr. Kraker on March 23, 2001, x-rays revealed that the fusion was not completely solid, and Dr. Kraker ordered continued physical therapy.^[2]  Dr. Kraker released the employee to return to work on April 7, 2001, with restrictions on lifting, carrying, pushing, pulling, and change of position.  The employee was also restricted as to flexion, rotation, static positions of the cervical spine and  overhead activities.  Dr. Kraker recommended that the employee be assigned a QRC to assist her in her return to work.  He continued to treat the employee thereafter, and, in June of 2001, prescribed a bone stimulator.  In his March 1, 2002, office note, Dr. Kraker noted that the employee had experienced left arm discomfort over the preceding three to four weeks.

 

The employee was examined by independent medical examiner Dr. John Dowdle on February 19, 2001.  In a report of that date, Dr. Dowdle diagnosed herniated nucleus pulposus at C6-7, degenerative disc disease at C6-7, and status post cervical fusion of C6-7 for disc degeneration and herniation.  It was Dr. Dowdle=s opinion that the employee was at maximum medical improvement [MMI] as she was three months post-surgery and was in stable condition.  In his report, he also stated, AI would anticipate that Ms. Kahlmorgan is going to need some exercises and rehabilitation to get back to full strength and full activities.@

 

On June 21, 2001, Dr. Kraker rated the employee as having a 9% permanent partial disability under Minn. R. 5223.0370, subp 4D,^[3] and 2.5% permanent partial disability under Minn. R. 5223.0370, subp. 5A.^[4]  At that time, Dr. Kraker also opined that the employee was not at MMI.

 

The employee was terminated by the employer on April 26, 2001, and she did not make a reasonable and diligent search for work from April 2001 through September 2, 2002.^[5]  During the weekend of Labor Day 2002, the employee moved from Minnesota to Indiana to live with her parents.  The employee testified that she searched for work in Indiana and worked one day at Bob Evans Restaurant and approximately a week-and-a-half at Black Cat Lanes.

 

The employee claimed entitlement to temporary total disability benefits, permanent partial disability benefits, and medical expenses, and the matter proceeded to hearing on October 11, 2002, at the Office of Administrative Hearings.  In Findings and Order filed on November 18, 2002, the compensation judge found, in part, that the employee had not been at MMI in February 2001 when she was seen by Dr. Dowdle, that the employee had diligently searched for work after moving to Indiana and was entitled to temporary total disability benefits from September 3, 2002, to the date of hearing, and that the employee had an 11.5% permanent partial disability.  The judge ordered the permanent partial disability benefits payable in a lump sum.  The employer and insurer appeal.

 

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  

 

1.  MMI

 

The employer and insurer contend that Dr. Kraker has not recommended any ongoing or further treatment for the employee since January 24, 2001, and that the employee did not testify to having experienced any improvement in her condition after that time.  As such, the employer and insurer contend, the record supports the conclusion that the employee reached MMI with the service of Dr. Dowdle=s report on February 27, 2001.  We are not persuaded.

 

Maximum medical improvement is defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain.@  Minn. Stat. '176.011, subd. 25.  At the time of Dr. Dowdle=s report, the employee had not yet been released to return to work following her cervical fusion.  Dr. Kraker continued the employee=s physical therapy in March of 2001, and released her to return to work in April of 2001.  In June of 2001, Dr. Kraker confirmed by x-ray that the employee=s fusion was not completely solid and prescribed a bone stimulator, which the employee continued to wear as of the date of hearing.  Contrary to the employer and insurer=s contentions, Dr. Kraker did treat the employee=s cervical spine after January of 2001, and the compensation judge could reasonably infer that the physical therapy and prescription for a bone stimulator were intended to further improve the employee=s condition.  Furthermore, in his office note of June 15, 2001, Dr. Kraker specifically indicated that the employee was not at MMI at that time.  We would note, in addition, that Dr. Dowdle=s report is equivocal.  While stating that the employee was at MMI, he also stated that the employee needed exercises and rehabilitation to Aget back to full strength and full activities.@  Given this evidence, it was not unreasonable for the judge to conclude that the employee did not reach MMI in February of 2001.  That finding is therefore affirmed.

 

2.  Temporary Total Disability

 

The employer and insurer contend that the employee is not entitled to temporary total disability benefits after her move to Indiana because her Ajob search in Indiana after September 3, 2002, was no different than it had been in Minnesota which the Compensation Judge found to be neither reasonable nor diligent.@  The employer and insurer further contend that the compensation judge did not make findings as to whether the new labor market in Indiana was comparable to that of Minnesota and that they did not even learn of the employee=s move to Indiana until the employee testified at hearing.  We are not persuaded that the judge erred in awarding temporary total disability benefits.

 

There was no objection at hearing to the employee=s testimony regarding her move to Indiana or her job search there.  While the employer and insurer contend that they did not know about the move until the date of hearing, they did not raise relocation/removal from the labor market as an issue at hearing nor did they ask to have the record left open to submit information about the Indiana job market.  There is no evidence that the employee=s new labor market is so significantly depressed as to disqualify her from wage loss benefits.  See Paine v. Beek=s Pizza, 323 N.W.2d 812, 35 W.C.D. 199 (Minn. 1982).

 

In addition, the employee was never provided with the services of a QRC, which is relevant to the issue of whether her job search was reasonably diligent.  See, e.g., Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985).  As of the hearing date, the employee had only been living in Indiana for just over five weeks.  She testified that she submitted ten to fifteen applications in Indiana and that she had worked in two different jobs since moving back there.^[6]  It was not unreasonable for the compensation judge to determine that the employee=s job contacts, when coupled with the fact that she was actually hired by two employers within a five-week period, constituted a reasonable and diligent search for work.^[7]  We therefore affirm the judge=s award of temporary total disability benefits to date of hearing.

 

3.  Permanent Partial Disability

 

The employer and insurer admit that the employee is entitled to the 2.5% permanent partial disability rated by Dr. Kraker for a cervical fusion at one level.  However, the employer and insurer contend that the employee is not entitled to benefits for the 9% rating awarded by the compensation judge for the herniation at C6-7 as evidenced on MRI, because the objective neurological findings on examination pre-surgery have not been documented post-surgery.  The employer and insurer appear to contend that, because the employee no longer has hyporeflexia or nerve root specific weakness, post-surgery, she no longer has functional loss of use or impairment of function for which permanent partial disability benefits are payable.  We are not persuaded.

 

Minn. R. 5223.0370, subp. 4D, provides that a 9% rating is appropriate for a herniated disc as evidenced on MRI.  That provision further allows for Athe addition of as many of subitems (1) to (4) as apply.@  Id.  Subitem (2) provides, Aif a surgery other than a fusion performed as part of the treatment, add two percent, if surgery included a fusion, the rating is as provided in subpart 5.@  Id. at subp. 4D(2).  Subpart 5 then specifies that, for a fusion at one level, Aadd 2.5 percent to the otherwise appropriate category in subpart 3 or 4.@  Id. at subp. 5.  The employee met the criteria for a herniated disc with radicular pain or paresthesia, as evidenced on the MRI pre-surgery.  Clearly the fusion was performed to treat that herniated disc.  Minn. R. 5223.0370, subp. 4D(1), allows for an additional 3% Aif chronic radicular pain or paresthesia persist despite treatment.@  As pointed out by the employer and insurer, the employee no longer has objective radicular findings.  The correct rating is therefore 9% plus 2.5%.  The compensation judge did not err in finding that the employee has an 11.5% minimal ascertainable permanent partial disability at this time.^[8]

 

The employer and insurer also argue that the compensation judge inappropriately awarded the permanency payable in a lump sum and calculated the award under the wrong permanency table.  We agree.  Minn.  Stat. ' 176.101, subd. 2a(b), specifies that compensation for permanent partial disability is payable upon cessation of temporary total disability benefits.  Given our affirmance of the judge=s award of temporary total disability benefits, the award of permanency benefits is premature.  With regard to the specific amount of the award, the compensation judge found that the employee was entitled to $9,775.00 for her 11.5% whole body impairment.  That would be the correct calculation had the employee=s injury occurred on or after October 1, 2000.  However, the employee=s injury occurred in July of 2000.  As such, Minn. Stat. '176.101, subd. 2(a) (1998), applies, and the award must be calculated as 11.5% of $75,000 -- $8,625.00. 

 

The compensation judge=s finding that the employee has an 11.5% whole body impairment is affirmed, but findings and orders referencing the dollar amount and manner of payment are vacated.