DAVID M. PATNODE, Employee, v. STOCK BLDG. SUPPLY and ACE USA/SEDGWICK CLAIMS MGMT. SERVS., Employer-Insurer/Appellants.

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 1, 2003

HEADNOTES

EVIDENCE - CREDIBILITY. Where the judge clearly understood that there was a credibility issue regarding the employee=s current complaints, and where there was no indication that the employee was suffering from any physical limitations at the time of his work injury, the compensation judge would not have been required to find the employee=s testimony as to his current symptoms not credible even if he had found the employee deceitful as to his past medical history, and the judge=s implicit acceptance of the employee=s testimony as to the course of his present symptoms was not unreasonable, notwithstanding the fact that the employee=s testimony as to his preexisting low back problems was inaccurate.

EVIDENCE - EXPERT MEDICAL OPINION. The fact that an employee=s MRI study is essentially negative does not compel a finding that the employee is unrestricted, and there is no requirement that work restrictions be based solely upon objective medical evidence; where it was based on the testimony of the employee and the opinions of two medical experts, the conclusion of the compensation judge that the employee continued to suffer from the effects of his work injury and that there were no reasonable grounds to discontinue the employee=s temporary partial disability benefits was not clearly erroneous and unsupported by substantial evidence.

Affirmed.

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

Compensation Judge: Danny P. Kelly

Attorneys: David O. Nirenstein, Aaron P. Frederickson, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for Appellants. Scott P. Heins, Attorney at Law, White Bear Lake, MN, for Respondent.

OPINION

WILLIAM R. PEDERSON, Judge

The employer and insurer appeal from the compensation judge=s determination that the employee continues to suffer from the effects of his May 7, 2002, work injury and that there are no reasonable grounds to discontinue the employee=s temporary partial disability benefits. We affirm.

BACKGROUND

On May 7, 2002, David M. Patnode [the employee], who has a history of low back problems dating back to the early 1980s, sustained an admitted injury to his low back while working without restrictions as a Acatcher@ for Stock Building Supply [the employer]. The employee was fifty years old at the time of his injury. The employee sought immediate medical attention for his injury with Dr. Randall Rouse, who diagnosed incapacitating low back pain, prescribed medications, and eventually referred the employee for chiropractic treatment with Dr. Arthur Volker.

About the middle of August 2002, the employee had an increase in his low back symptoms, and he was restricted from working. On August 13, 2002, he underwent a lumbar MRI scan, which was interpreted by the radiologist as an Aessentially negative MRI of the lumbar spine.@ Dr. Rouse referred the employee to the Physicians Neck and Back Clinic, where he was treated by Dr. Dietmar Grentz until November 19, 2002. On that date, Dr. Grentz offered a final diagnosis of mechanical low back pain and deconditioning syndrome. The employee apparently did not improve with therapy at the Physicians Neck and Back Clinic.

On December 30, 2002, the employee was examined at the request of the employer and insurer by Dr. Paul Cederberg. Dr. Cederberg, noting the employee to be a Apoor historian,@ diagnosed low back pain of unknown etiology. He opined that the employee=s subjective symptoms were out of proportion with his objective physical findings and suspected a malingering syndrome. Based on a lack of any objective findings on examination to substantiate the employee=s symptoms, the doctor released the employee to return to work without restrictions. He concluded that the employee had achieved maximum medical improvement by November 19, 2002, when he completed the therapy at the Physicians Neck and Back Clinic.

The employee returned to see Dr. Rouse on January 3, 2003. Contrary to Dr. Cederberg=s impression, Dr. Rouse continued to diagnose low back pain, along with depression. He recommended no change in the employee=s restrictions, anticipating that they would be permanent and that the employee would require some degree of restriction to Alight duty@ work into the future. Dr. Rouse did not believe that the employee had yet achieved maximum medical improvement.

On January 10, 2003, the employer and insurer filed a Notice of Intention to Discontinue [NOID] the employee=s workers= compensation benefits on the basis of Dr. Cederberg=s December 30, 2002, evaluation. The employer and insurer contended that the employee had been released to return to full duty without restrictions.

On January 31, 2003, the employee returned to see Dr. Rouse, who concluded that the employee continued to suffer from chronic low back pain and depression. It was Dr. Rouse=s opinion that the employee was capable of working a sedentary job only and that he had permanent restrictions. Dr. Rouse concluded also that the employee had achieved maximum medical improvement on that date.

The parties appeared for an administrative conference under Minn. Stat. ' 176.239 on February 5, 2003. In an Order on Discontinuance issued February 6, 2003, a compensation judge concluded that the employer and insurer had established reasonable grounds to discontinue the employee=s temporary partial disability benefits. On February 11, 2003, the employee filed an Objection to Discontinuance.

On March 24, 2003, the employee was evaluated by chiropractor Dr. Kevin Quaas at the request of the employee=s attorney. It was Dr. Quaas=s impression that the employee had suffered a sprain/strain injury to his lumbo pelvic region on May 7, 2002, and that he continued to suffer from chronic symptoms requiring physical restriction to sedentary work that allows the employee to change positions to minimize pain.

The employee=s Objection to Discontinuance came on for hearing before a compensation judge on April 3, 2003. The issue before the judge was whether the employer and insurer had reasonable grounds to discontinue temporary partial disability benefits as of January 10, 2003, on the basis of Dr. Cederberg=s evaluation. At the hearing, the employer and insurer contended that there was no objective evidence to support the employee=s claim of disability, and they questioned the credibility of the employee=s complaints in view of his repeated failure to provide an accurate history of pre-existing back problems. In a Findings and Order issued April 21, 2003, the compensation judge concluded that the employee continued to suffer from the effects of his May 7, 2002, work injury and that there were no reasonable grounds to discontinue the employee=s temporary partial disability benefits. 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

On appeal, the employer and insurer contend that the employee=s testimony was inaccurate, misleading, and dishonest. Because the employee=s testimony was not credible, they contend, the compensation judge=s determination that the employee continues to suffer from the effects of his work injury is clearly erroneous and unsupported by substantial evidence. We are not persuaded.

The employee=s credibility was clearly at issue before the compensation judge. The employee was impeached on several occasions regarding histories provided to medical examiners, his deposition testimony, and his direct testimony at hearing. It is clear that the employee=s testimony was inaccurate, and the employee himself even acknowledged it to be so. Moreover, the judge specifically questioned the employee regarding his failure to recall past injuries and treatment, and the employee had no explanation for his lack of memory. However, the employee also testified that it was not his intention to be dishonest, and in his report of December 30, 2002, Dr. Cederberg also noted that the employee was a poor historian. Given these facts, the compensation judge=s decision in favor of the employee is not rendered unreasonable on grounds of credibility.

Credibility determinations are for the compensation judge, see Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), and a judge generally Amay accept all or only part of any witness= testimony.@ Proffit v. Minn. Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992), quoting City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980). The compensation judge in this case clearly understood that there was a credibility issue regarding the employee=s current complaints of back pain stemming from his work injury. There is no indication that the employee was suffering from any physical limitations at the time of his May 7, 2002, injury, and the compensation judge would not have been required to find the employee=s testimony as to his current symptoms not credible even if he had found the employee deceitful as to his past medical history. We find nothing in the record compelling us to overturn the compensation judge=s implicit acceptance of the employee=s testimony as to the course of his symptoms.

The employer and insurer=s next contention is that overwhelming medical evidence presented at hearing demonstrates a virtual absence of any objective medical findings to support the employee=s claim of ongoing disability. Therefore, they contend, the judge=s award of ongoing benefits is clearly erroneous and unsupported by substantial evidence. We disagree.

While Dr. Cederberg indicated that the employee was released to return to work without restrictions, Dr. Rouse and Dr. Quaas clearly suggested that restrictions are appropriate in this case and that the employee was not released to return to his former job. A compensation judge=s choice between conflicting expert opinions is generally upheld unless the facts assumed by the expert are not supported by substantial evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Both Dr. Rouse and Dr. Quaas noted objective findings on physical examination, and their opinions are not otherwise based on false premises. The fact that the employee=s MRI study was essentially negative does not compel a finding that the employee is unrestricted by his work injury; there is no requirement that work restrictions be based solely upon objective medical evidence, and subjective complaints of pain can reasonably form the basis for a determination of restrictions. See Bauer v. Linder=s Greenhouse, slip op. (W.C.C.A. Jun. 13, 2001).