LAWRENCE RIEGEL, Employee/Appellant, v. HURD MAINTENANCE and STATE FUND MUT. INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 20, 2003

 

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - MEDICALLY UNABLE TO CONTINUE.  Substantial evidence, including treatment notes from the employee=s physician and the opinion of the employer and insurer=s independent medical examiner, supported the compensation judge=s decision that the employee had not been medically unable to continue working so as to qualify for resumption of temporary total disability benefits under Minn. Stat. ' 176.101, subd. 1(e)(2).

 

Affirmed.

 

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

Compensation Judge:  Cheryl LeClair-Sommer.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that he was not medically unable to continue working, due to his work-related low back condition, in March of 2000.  We affirm.

 

DECISION

 

The employee began working for Hurd Maintenance [the employer], a small commercial painting business, in 1978.  For the last eight or ten years of his employment, into 2000, he worked as a foreman for this company.  The employer specializes in painting service stations but also does some other commercial painting as well as light industrial and light residential painting jobs.

 

On September 17, 1998, the employee sustained a low back injury in the course and scope of his employment.  Diagnostic tests disclosed degenerative changes at L4-5 and L5-S1, and, after conservative treatment failed, the employee underwent a left L5-S1 microdiscectomy, performed on October 26, 1998, by Dr. Bruce Bartie.  The employer and insurer accepted liability for the injury and paid various benefits, including benefits for an 11% whole body impairment.

 

The employee returned to part-time work in late March of 1999, gradually increasing his hours until he reached full-time status in late May, after which he continued to work for the employer, full time, subject to certain restrictions.  The employee testified that his low back symptoms progressively worsened again after his return to work, and, in October of 1999, Dr. Bartie recommended the employee undergo a functional capacities [FCE] to evaluate Ahis actual work ability with regard to bending, twisting, and lifting.@  In the report containing that recommendation, Dr. Bartie noted that the employee was working for a small company, which made it impossible for him to avoid painting work and therefore the bending and twisting that seemed to aggravate his back.

 

The FCE was performed on October 21 and 22, 1999.  According to the report from that evaluation, some of the Acritical job demands@ described by the employee were inconsistent with the employee=s capabilities in several respects, primarily with regard to lifting.  In a December 9, 1999, report, Dr. Bartie indicated that, if the employer could not accommodate the employee with regard to lifting and carrying, Aalternative employment will need to be found.@  Several days later, the employee asked Dr. Bartie to increase his restrictions, explaining that he had once been offered the chance to retrain in the wildlife or foresting areas and Awould like to exercise that option if it is still open for him.@  However, Dr. Bartie concluded that the employee should remain on his Acurrent@ restrictions and that he (Dr. Bartie) could not make any decisions about specific job tasks, only restrictions.  The employee was laid off as usual, for seasonal reasons, that same month.

 

The employee returned to see Dr. Bartie on February 15, 2000, complaining of increased low back pain occurring over the past month.  By this time, the employee was on the waiting list for a liver transplant due to Hepatitis C and liver cancer, nonwork-related conditions.  Noting that the employee had been advised to avoid anti-inflammatories due to his liver condition, Dr. Bartie recommended an S1 joint injection.

 

On about March 1, 2000, at the end of the seasonal layoff, the employee returned to his job with the employer.  The employee testified that his low back pain increased over the next several days until March 8, 2000.  On that date, due to miscommunications at work, the employee understood he was being terminated because he could not adequately perform his job, while the employer believed that the employee was quitting due to increased back pain.  It is undisputed that the employee complained to coworkers that day that he was experiencing severe low back symptoms, and he made an appointment with Dr. Bartie, who saw him the following day.  Dr. Bartie=s March 9, 2000, office note reads, in total, as follows:

 

Patient returns.  He tells me he is on the transplant waiting list for his hepatic cancer and chronic Hepatitis-C.  From the standpoint of his back, he is doing reasonably well.  He has stayed on his restrictions.  His boss found that the restrictions were a little bit too restrictive to allow him to do his usual job and his boss decided to pull him off of work.  I told him his restrictions will be permanent and not change at this time.

 

Physical exam shows good strength and sensibility.  His forward flexion is possible to 70 degrees, extension to 15, side bending to 10 and 10.  He is able to toe stand, heel stand and do a keep knee squat.  He still has some mild sciatica but there is no palpable tenderness in the sciatic notches or common peroneal nerves.

 

I am happy with his recovery.  I told him that this will be our final visit for evaluation of his back spondylosis and recovering radiculopathy.  His questions were answered and he was discharged from further follow up at this time.

 

About six weeks later, in late April of 2000, the employee underwent a second FCE, on referral from Dr. Charles Hipp.  This FCE recommended somewhat more significant restrictions on the employee=s activities, especially with regard to lifting.

 

On June 5, 2000, the employee underwent a liver transplant at the University of Minnesota.  Subsequently, in February of 2001, the employee=s physicians for the transplant apparently released him to look for work, and he began a job search.^[1]  He testified that he obtained a job with Bishop Millwork at the end of August 2001, but that he was unable to start the job because his back symptoms had increased and he wanted to consult with Dr. Hipp first Ato see what the problem was with my back.@  Dr. Hipp recommended an MRI, which was performed on October 16, 2001, and which confirmed a recurrent herniated disc at L5-S1.

 

On October 26, 2001, the employee returned to see Dr. Bartie, who performed another microdiscectomy on November 12, 2001.  In a follow-up treatment note dated November 28, 2001, Dr. Bartie indicated that the employee was doing well but should avoid heavy lifting and repetitive bending and twisting.

 

In March of 2002, the employee underwent a third FCE.  In a June 3, 2002, report, Dr. Bartie indicated that the restrictions specified by this FCE should be considered permanent and that the employee had an additional 2% whole body impairment following his most recent surgery.

 

The employee continued to look for work, apparently with the assistance of a QRC,^[2] following his recovery from the second low back surgery, but he did not find any employment.  He has not worked at all since March 8, 2000, when his job with the employer ended.

 

The matter came on for hearing before a compensation judge on June 6, 2002, for resolution of the employee=s claim for temporary total disability benefits for various periods after March 8, 2000.^[3]  The primary issue in this regard was whether the employee had been medically unable to continue working on March 8, 2000, as specified by Minn. Stat. ' 176.101, subd. 1(e)(2).  The parties stipulated that the employee had reached maximum medical improvement [MMI] from his September 17, 1998, work injury effective April 13, 1999.

 

In a decision issued on September 6, 2002, the compensation judge concluded that the employee had not been medically unable to continue working on March 8, 2000, and she therefore denied his claim for temporary total disability benefits.  The employee appeals.

 

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

 

Minn. Stat. ' 176.101, subd. 1(e)(2) (1998), reads in part as follows:

 

   (2) if temporary total disability compensation ceased because the employee returned to work or ceased under paragraph (h) or (j), it may be recommenced if the employee is medically unable to continue at a job due to the injury.  Where the employee is medically unable to continue working due to the injury, temporary total disability compensation may continue until any of the cessation events in paragraphs (e) to (l) occurs following recommencement . . . . For purposes of commencement or recommencement under this clause only, a new period of maximum medical improvement under paragraph (j) begins when the employee becomes medically unable to continue working due to the injury.  Temporary total disability compensation may not be recommenced under this clause and a new period of maximum medical improvement does not begin if the employee is not actively employed when the employee becomes medically unable to work.  All periods of initial and recommenced temporary total disability compensation are included in the 104-week limitation specified in paragraph (k).^[[4]]

 

The sole issue on appeal is whether substantial evidence supports the judge=s determination that the employee=s work-related low back condition did not deteriorate so as to render him medically unable to continue working as of March 8, 2000, as contemplated by this provision.^[5]

 

The judge evidently based her decision in large part on the records of Dr. Bartie and the opinions of the employer and insurer=s independent examiner, Dr. John Dowdle, explaining in her memorandum as follows:

 

The opinions of the medical experts fail to substantiate the employee=s claim that he was medically unable to continue working from March 8, 2000 through June 4, 2000 and from March 12, 2001 through October 21, 2001.  Restrictions imposed by Dr. Bartie as of October 29, 1999 failed to change through May 2, 2000.  On March 9, 2002, Dr. Bartie reported the restrictions were permanent informing the employee Athat this will be our final visit for evaluation of his back spondylosis and recovering radiculopathy . . . he was discharged from further follow up at this time.@  Such statements do not support a claim of medical inability to continue working.  As of May 2, 2000, the functional capacities evaluation resulted in increased restrictions, however, the medical records do not substantiate a worsening or deterioration of the condition.

 

In the follow up evaluation dated June 28, 2002, Dr. Dowdle opined that as of March 9, 2000, pursuant to the records of Dr. Bartie his back was Adoing reasonably well.@  Permanent restrictions had been in place since the Functional Capacities Evaluation in October 1999. . . .  Dr. Dowdle concluded based upon the records there was no change in the medical condition for the low back requiring new restrictions in the spring of 2000.  The April 2000 FCE resulted in greater restrictions not due to the back condition for the chronic liver cancer and hepatitis C, according to Dr. Dowdle.  No contrary opinion is contained within the medical records and reports of the treating physicians.

 

On appeal, the employee contends that the judge ignored testimony of the employee, and of a representative of the employer, to the effect that an increase in symptoms caused the employee to leave work on March 8, 2000.  The employee also contends that the judge erroneously focused solely on the fact that Dr. Bartie did not change the employee=s restrictions when he saw the employee on March 9, 2000, arguing that, since the employee was by then unemployed, Dr. Bartie simply had no reason to adjust the employee=s work-related limitations.  We acknowledge that there is evidence that supports the inference that the employee became medically unable to continue working due to an increase in his work-related low back symptoms as claimed, particularly the employee=s testimony as to the progression of his back and leg pain and the fact that his restrictions were increased somewhat in late April of 2000, six or seven weeks after the employee left his job.  However, there is also adequate evidentiary support for the judge=s decision to the contrary.

 

Dr. Bartie=s March 9, 2000, office note in no way suggests that the employee=s condition had worsened or deteriorated; in fact, Dr. Bartie wrote that, A[f]rom the standpoint of his back, he is doing reasonably well,@ that the doctor was Ahappy with his recovery@ and had Adischarged [the employee] from further follow up.@  Also, as noted by the judge, Dr. Dowdle related the somewhat increased restrictions contained in the April 2000 FCE to the employee=s liver condition, the condition for which the employee underwent transplant surgery six weeks later.  While Dr. Bartie eventually suggested that the employee may have been working beyond his restrictions in his job with the employer, there is simply no medical opinion indicating either that the employee=s low back condition had worsened as of March 8, 2000, or that the employee had been medically unable to continue working as of that date.  In fact, the employee himself acknowledged that, while his symptoms had increased, he felt that, from a medical standpoint, he could have continued working for the employer after March 8, 2000, but for their Aterminating@ him.

 

Based on the record as a whole, we conclude that substantial evidence reasonably supports the compensation judge=s decision that the employee=s work-related low back condition did not deteriorate or worsen as of March 8, 2000, so as to render him Amedically unable to continue working@ within the meaning of Minn. Stat. ' 176.101, subd. 1(e)(2). We therefore affirm the judge=s decision in its entirety.