MICHAEL L. SHERMAN, Employee, v. CLEM=S CONSTR. and ACUITY GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 16, 2003

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where it was supported by the records and opinions of medical experts, the compensation judge=s conclusion as to the employee=s thumb and back restrictions and the date on which the employee was released to return to work was not clearly erroneous and unsupported by substantial evidence.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH - SUBSTANTIAL EVIDENCE.  Where rehabilitation assistance was being provided essentially throughout the disability period at issue, where the rehabilitation plan did not call for a job search until the month of the hearing, and where the judge reasonably concluded that the employee was cooperative with rehabilitation efforts, the compensation judge=s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

Determined by Pederson, J., Rykken, J., and Johnson, J.

Compensation Judge:  Gary P. Mesna

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits.  We affirm.

 

BACKGROUND

 

On February 11, 2002, the employee, Michael Sherman, worked as a general laborer for the employer, Clem=s Construction.  On that date, the employee was injured when an aluminum extension ladder fell and struck him across his left shoulder and back as he was bending over to pick up debris at a construction site.  The employer and its workers= compensation insurer admitted liability for the employee=s injuries and commenced payment of wage loss and medical benefits.  The employee was twenty-seven years old at the time and earning an hourly wage of $15.23.[1]

Following his work injury, the employee sought medical attention at the Cass Lake Indian Health Center and North Country Regional Hospital.  The employee complained primarily of pain and spasm on the left side of his back, extending from the upper thoracic area down into the lumbar region, as well as pain in the left thumb.  X-rays of the left shoulder, thoracic spine, and left thumb were interpreted as being normal.  Treatment included a variety of medications, physical therapy, and an eventual referral to orthopedist Dr. Glenn Johnson over concerns regarding tendon damage to the left thumb.

 

On March 13, 2002, the employer and insurer referred the employee for a rehabilitation consultation with qualified rehabilitation consultant [QRC] Mike Gilson.  In his initial report dated March 14, 2002, Mr. Gilson determined that the employee was eligible for rehabilitation services and established a vocational goal of returning the employee to work at his pre-injury job with the employer.

 

The employee was seen at the MeritCare Clinic Bemidji by Dr. Johnson on April 17, 2002.  Dr. Johnson obtained a history of the February 11, 2002, incident, noting that A[the employee=s] back and shoulder have pretty much come around, but he is having some persistent pain in his left thumb that really bothers him.  He can=t pick up heavy objects or use it the same because his thumb keeps >going out of place=.@  Following a physical examination and review of the employee=s left thumb x-rays, Dr. Johnson diagnosed ALeft gamekeeper=s thumb with Stener=s lesion,@ noting that, until surgically repaired, the employee=s thumb would not heal properly.[2]  Accordingly, on May 2, 2002, Dr. Johnson performed left thumb ulnar collateral ligament reconstruction surgery. 

 

Mr. Gilson evidently continued to provide rehabilitation assistance to the employee into May 2002, at which time the employee=s attorney requested a change of QRCs to a QRC with Moberg Career & Vocational Services.  According to his closure report of June 21, 2002, Mr. Gilson last met with the employee on April 30, 2002, but, because of the impending change of QRCs, a rehabilitation plan that he had developed, calling for a return to work with the employer, had not been signed by the parties.[3]

 

On May 8, 2002, shortly after his left thumb surgery, the employee was seen for the first time by Dr. A. Michael Guimaraes at the Clearwater Health Services Clinic in Bagley, Minnesota.  Dr. Guimaraes obtained a history of the employee=s February 11, 2002, injury at work and of the thumb surgery performed by Dr. Johnson, and he noted that the employee had other symptoms as a result of the accident, including thoracic back pain, low back pain, right arm pain, and left knee pain.  Following an examination, the doctor concluded that it would be necessary to obtain and review the employee=s past medical records and to obtain additional radiologic studies.  He reported that the employee Ais not able to return to work until further notice because of work-related injuries that occurred on 2/11/02.@

 

The employee returned for a follow-up visit with Dr. Johnson on May 9, 2002.  At that time, the employee reported severe pain in his left thumb.  The doctor indicated that the employee would be limited by a cast or splint until the end of July and that some simple functions of the left hand would not be possible during the intervening period.  The doctor noted, however, that the employee was able to return to sedentary work with limitations from June 1, 2002, through July 31, 2003.

 

On May 23, 2002, the employee returned to see Dr. Guimaraes regarding  pain related to his various injuries.  He reported that he had had some good days but mostly bad days.  He also reported feelings of depression related to his pain.  The doctor noted the employee=s condition upon physical examination remained unchanged and that appropriate decisions regarding treatment were being delayed pending review of the employee=s outside medical records.  The employee was given prescriptions for depression and pain, and Dr. Guimaraes anticipated scheduling x-rays and an MRI of the left knee, pending approval by the workers= compensation insurer.

 

The employee evidently moved to the Twin Cities for personal reasons in June 2002.  The wires inserted by Dr. Johnson during the employee=s left thumb reconstruction surgery were apparently removed at a hospital in the Cities in late June.  On July 15, 2002, the employee sought chiropractic treatment with Dr. Richard Tieszen at the Accident-Injury Center of Minneapolis.  Dr. Tieszen diagnosed a moderate strain/sprain of the employee=s cervical, thoracic, and lumbosacral spine and provided chiropractic adjustments and physiotherapy modalities through August 9, 2002.

 

On September 3, 2002, the employer and insurer filed a Notice of Intention to Discontinue [NOID] workers= compensation benefits as of August 29, 2002, on grounds that  Dr. Glenn Johnson=s office note of May 9, 2002, had released the employee to work with restrictions on June 1, 2002, and that the employee had failed to conduct a diligent search for work.  An Order on Discontinuance was served and filed on October 2, 2002, allowing the employer and insurer to discontinue the employee=s temporary total disability benefits effective August 29, 2002.  The employee filed an Objection to Discontinuance on October 28, 2002.

 

The employee had apparently returned to the Bemidji area in late August 2002 and had commenced treatment with chiropractor Dr. Larry Stember on September 20, 2002.  About ten days later, on October 1, 2002, the employee returned to Dr. Guimaraes with complaints of chronic back pain since February 11, 2002, that had been worsening over the past two weeks.  The employee reported that his pain had been interfering with his sleep and that he needed to change positions frequently.  He also stated that at times it was difficult to walk because of back pain.  In a Report of Workability issued following that visit, Dr. Guimaraes diagnosed chronic back pain and stated that the employee was unable to return to work because of unresolving and worsening back pain.

 

The employee saw Dr. Guimaraes again on October 14, 2002, and was referred for an MRI of the thoracic spine on October 29, 2002.  Dr. Guimaraes reported that the MRI demonstrated only minor abnormalities that were unlikely to be the etiology of the employee=s severe pain complaints.  On October 28, 2002, Dr. Stember  released the employee to work restricted from working more than two hours per day and from lifting or carrying over ten pounds.  After two follow-up visits in November, however,  Dr. Guimaraes continued to restrict the employee from working and recommended a functional capacity evaluation, a pain clinic consultation, and water therapy.[4]  On December 2, 2002, Dr. Stember modified the employee=s restrictions to prohibit work shifts longer than four hours and lifting over twenty pounds.  The following day, the employee was seen for the first time by Dr. Bruce Wilson at the MeritCare Clinic in Bemidji.  Dr. Wilson obtained a history of the employee=s difficulties since February 11, 2002, and diagnosed Aa chronic sprain/strain type injury of the left posterior shoulder and upper back, musculoligamentous type.@  He recommended that the employee undergo an aggressive program of physical therapy.  He further concluded that the employee was capable of performing a sedentary job without overhead work.  Dr. Wilson did not restrict the employee=s hours.

 

On January 7, 2003, the employee was examined at the request of the employer and insurer by orthopedist Dr. William Akins.  Dr. Akins obtained a history from the employee, reviewed the employee=s medical records, and performed a physical examination of the employee=s spine, left knee, and left hand.  Dr. Akins reported that he was unable to establish a specific diagnosis as to the source of the employee=s pains.  He stated that, in the absence of any objective findings with which to substantiate the employee=s inability to function, there were no indications for limitations or restrictions to be imposed upon the employee=s activities in daily living or in the workplace.  He concluded that the employee had reached maximum medical improvement with regard to his injuries of February 11, 2002.

 

The employee=s objection to discontinuance came on for a hearing before a compensation judge on January 30, 2003.  In a Findings and Order issued March 7, 2003, the judge determined that Dr. Glenn Johnson, who released the employee to sedentary work as of June 1, 2002, was treating the employee only for the thumb injury and was not treating his back injuries.  The judge therefore concluded that the restrictions provided by Dr. Johnson related only to the employee=s thumb condition.  With respect to the employee=s back, the judge found that the employee was released to light-duty work by Dr. Stember on October 28, 2002.  He also found that the employee had cooperated with rehabilitation services and with his rehabilitation plan.  Based on these findings, the judge determined that the employee was entitled to temporary total disability benefits continuing from August 29, 2002, through the date of the hearing.  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.  Restrictions and Release to Work

 

The employer and insurer assert initially that Dr. Akins opined that there were no objective findings on examination to substantiate the need for work restrictions to be imposed upon the employee.  This fact, they contend, coupled with signs of exaggeration or emotional overlay demonstrated on examination and evidence of narcotic-seeking behavior present in the medical records, constitutes substantial evidence in support of their position that the employee requires no work restrictions consequent to the incident of February 11, 2002.  Certainly, Dr. Akins=s report and other evidence may well support the conclusion urged by the employer and insurer.  However, the issue on appeal is not whether the record might support some other determination but rather whether the judge=s decision is supported by evidence that a reasonable mind might accept as adequate.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.  In this case, the record as a whole supports the judge=s decision on the issue of the employee=s restrictions.

 

The record is not entirely clear about the employee=s restrictions, if any, between August 29 and October 1, 2002.  However, when Dr. Stember examined the employee on September 20, 2002, he reported positive findings on physical examination, and in a subsequent visit on October 28, 2002, he released the employee to a light-duty work schedule of two hours per day, with no lifting over ten pounds.  Dr. Guimaraes examined the employee on four occasions during October and November of 2002.  Following each of these visits, the doctor indicated that the employee was totally unable to work.  On December 2, 2002, Dr. Stember modified his restrictions to allow for a work schedule of four hours per day, with no lifting over twenty pounds.  Dr. Bruce Wilson, who examined the employee on December 3, 2002, also indicated that the employee was capable of working on a sedentary basis.

 

Based on the record before him, the compensation judge concluded that the employee continued to suffer from restrictions related to his work injuries of February 11, 2002.  He determined that the employee was capable of returning to light-duty work restricted from lifting over twenty pounds but with no limitation on hours.  The judge=s finding as to the employee=s restrictions is more than adequately supported by this medical record.  While the medical evidence, particularly the records of Dr. Guimaraes and Dr. Wilson, refer primarily to the employee=s subjective complaints of pain, there is no requirement in the law that a physician=s work restrictions be based on objective findings.  See, e.g., Muggli v. Marvin Windows, slip op. (W.C.C.A. Mar. 10, 1999); Thompson v. Waco Scaffolding & Equip., slip op. (W.C.C.A. Feb. 7, 1994); Stender v. Maid of Scandinavia, slip op. (W.C.C.A. Mar. 4, 1993); Shoultz v. Natco Automatic Transmission, slip op. (W.C.C.A. Apr. 14, 1993).  The employee=s subjective complaints of pain can reasonably form the basis for a finding of work restrictions.  Here, there was adequate medical evidence to support the compensation judge=s findings, particularly in the opinions of Drs. Stember, Guimaraes, and Wilson.  Although Dr. Akins concluded otherwise, we affirm the compensation judge=s findings as to the employee=s restrictions.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985) (a Atrier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence"); Minn. Stat. ' 176.421, subd. 1(3) (1992).

 

The employer and insurer next argue that, even if the employee requires restrictions as a result of his work-related injury, the judge erred when he concluded that Dr. Johnson=s June 1, 2002, release with restrictions only related to the employee=s thumb condition and that the employee was not released with restrictions as to his back until October 28, 2002.  They argue that Dr. Johnson=s reference to a sedentary job and limitations on walking and standing clearly indicate that the restrictions contemplated the employee=s total condition, since it would make no sense for a physician to impose sedentary restrictions related to a left thumb injury.  We are not persuaded.

 

Dr. Johnson saw the employee four times between April 17 and October 22, 2002.  The records for those visits do not reflect any examination or treatment of the employee=s back.  In addition, the employee testified that he asked Dr. Johnson if the doctor would examine his back, only to be told by Dr. Johnson that his specialty did not include the spine.  The judge=s conclusion that it was reasonable to infer that Dr. Johnson=s work release and restrictions related only to the employee=s thumb condition is also supported by Dr. Guimaraes=s office notice of May 8, 2002.  On that date, Dr. Guimaraes made reference to Dr. Johnson=s treatment of the employee=s left hand and wrist tendon injuries, although Dr. Guimaraes was seeing the employee for diagnosis of right arm pain, left knee pain, and back pain.  We believe that the compensation judge=s interpretation of Dr. Johnson=s office records and his conclusion as to the date on which the employee was released to return to work are supported by substantial evidence.  We therefore affirm.

 

2.  Diligent Job Search

The compensation judge determined that the employee made no job search prior to January 2003 and that during January 2003 he made only a very limited job search by looking in the newspaper and checking job postings at the Work Force Center.  However, citing Jones v. North County Health Servs., slip op. (W.C.C.A. Mar. 16, 1994), Grieco v. Minn. Nat=l Foods, 48 W.C.D. 174 (W.C.C.A. 1993), and Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989), the compensation judge concluded that the employee=s failure to seek work had been reasonable under the circumstances because the employee had cooperated with rehabilitation assistance and a job search was not yet called for in the rehabilitation plan. 

 

The employer and insurer contend that the compensation judge erred in finding that the employee cooperated with rehabilitation efforts when, essentially, no rehabilitation services were being provided during the period from at least June 1, 2002, when the employee was released to return to work with restrictions by Dr. Johnson, and the date the employee was eventually contacted by QRC Lanes.  They argue that, while a job search must be evaluated in light of the rehabilitation services provided, an employer=s failure to provide rehabilitation services does not eliminate an employee=s responsibility to diligently seek employment within the employee=s physical restrictions.  Given the facts of this case, we are not persuaded.

 

The compensation judge acknowledged that there were some delays in getting rehabilitation moving following the change of QRCs.  While the employee may not have had rehabilitation assistance between June and September, the employer and insurer=s NOID was not served until August 30, 2002, and it is clear that rehabilitation services were provided shortly thereafter.  QRC Lanes made contact with the employee on September 9, 2002, and he conducted a rehabilitation consultation on September 25, 2002.  The parties signed a rehabilitation plan in October 2002 that called for a return to work with the date-of-injury employer.  The rehabilitation plan did not call for a job search, and, in fact, a job search at that time would have been inconsistent with the stated goal of the plan.  Where there appears to be a reasonable possibility that an employee will return to work with the employer, it may not be necessary for the employee to engage in an immediate search for work in order to receive temporary total disability benefits.  Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996).

 

Under the facts of this case, where rehabilitation assistance was being provided essentially throughout the disability period at issue, where the rehabilitation plan did not call for a job search until the month of the hearing, and where the judge reasonably concluded that the employee was cooperative with rehabilitation efforts, the compensation judge=s award of temporary total disability benefits is supported by substantial evidence and, accordingly, is affirmed.