King v. Woodsmen Midwest, Inc.

ROBERT G. KING, Employee/Appellant, v. WOODSMEN MIDWEST, INC., and AUTO-OWNERS INS. GROUP, Employer-Insurer, and KENWOOD CHIROPRACTIC ARTS, Intervenor.

TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence supports the decision of the compensation judge that the employee was not entitled to wage loss benefits.

Attorneys: Nancy E. Lamo, McCollum, Crowley, Moschet & Miller, LTD, Minneapolis, MN, for the Appellant. Karen R. Swanton, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for the Respondents.

The compensation judge denied the employee=s claims for temporary total and temporary partial disability compensation. The compensation judge determined that the employee=s work injury had resolved and was not a contributing factor in the employee=s wage loss, that the employee had reached maximum medical improvement, that the employee had failed to make a diligent job search, and that the employee=s reported earnings from self-employment did not reflect his earning capacity. The employee appeals. We affirm.

On October 25, 2002, the employee, Robert King, began employment with the employer, Woodsmen Minnesota, as a frame carpenter. On October 31, 2002, after carrying a number of bay windows up the stairs of a house, the employee reported pain in his neck and left shoulder. The following day, the employee commenced treatment for his injury with his chiropractor, Dr. David Stussy. The employer and its insurer, Auto-Owners Insurance Group, accepted liability for the injury to the left shoulder but denied liability for any neck injury.

The employee was born on September 17, 1950, graduated from high school in 1968 and from the University of Wisconsin in 1974 with a degree in communications. The employee resided in Alaska for 13 or 14 years and worked a variety of jobs while there. In 1982, the employee sustained a work injury to his thoracic spine. The employee testified that he was trained in video production as a result of this work injury. The employee also testified that he has received regular chiropractic care for his work injury from then on. No records of any treatment before 2001 are in evidence.

The employee moved to Minnesota in 1989 and became self-employed, operating a video production company known as King Productions. The employee testified that his business began to decline in 2000, that it became worse in 2001, and worse yet in 2002, so that it became necessary for him to find other employment and he obtained the job with Woodsmen Minnesota.

Treatment records in evidence indicate that on October 25, 2001, the employee consulted with Dr. David Toftness, a chiropractor in Amery, Wisconsin, at the referral of Dr. Hobday, a chiropractor in Minnesota with whom the employee had treated. Dr. Toftness assessed subluxation complex of the lumbar spine associated with radiculitis and myofascitis and treated him on two occasions before the employee returned to the care of Dr. Hobday. No records from Dr. Hobday are in evidence.

In February 2002, the employee consulted with Dr. Stussy for the first time and presented with complaints of back pain, back stiffness, and loss of flexibility which had existed for 20 years and which he attributed to his injury in1982. On examination, Dr. Stussy found restrictions in range of motion of the cervical and lumbar spine. Dr. Stussy treated the employee=s cervical, thoracic, and lumbar back and used ICD Codes 839.0, 724.1, and 723.1 to diagnose the employee=s condition.^[1] According to Dr. Stussy=s records, the employee last treated for his back condition before his work injury on September 18, 2002.

Dr. Stussy=s records from his treatment of the employee after his work injury are not in evidence. In a letter of December 6, 2002, to the QRC, Dr. Stussy stated the employee had been making Aprogress in the neck and mid back with aggravation to his previous mid and low back pain, with the addition of the new neck and shoulder injury as well.@ Dr. Stussy stated that he had referred the employee to Dr. Douglas Becker, an orthopedist, and that an MRI was being recommended. Dr. Stussy also indicated that because of the extent of the employee=s restrictions he was not releasing the employee to light duty work.

The employee=s first appointment with Dr. Becker had been on December 4, 2002. Dr. Becker did not examine the spine and limited his consultation to the employee=s left shoulder. His impression was of impingement syndrome and AC joint strain. Dr. Becker suggested a cortisone injection, but, after he consulted with Dr. Stussy on the proposed treatment, the employee declined the injection.

Rehabilitation services were initiated in December 2002 with Diane Wiczek, a QRC selected by the employer and insurer. Initially, the rehabilitation goal was to return the employee to a modified job with the employer. After meeting with the employee and Dr. Stussy, the QRC prepared a rehabilitation plan with a goal of returning the employee to work with a new employer. However, before services pursuant to the plan were initiated, the employee opted to change his QRC, choosing to work with William Villa. Mr. Villa began his involvement with the employee at the end of February 2003. During this time the employee continued to treat with Dr. Stussy on a regular and frequent basis, receiving trigger point therapy, intersegmental mobilization, and spinal adjustments on an average of twice a week.

The employee returned to see Dr. Becker on March 3, 2003. He advised Dr. Becker that his shoulder was doing quite well with occasional mild pain. The only positive finding on exam was subacromial crepitus, but range of motion, strength and stability were normal and the neurological examination was intact. Dr. Becker concluded the employee did not need further treatment, found the employee to be at maximum medical improvement with no permanent partial disability and released the employee to return to work without restrictions.

On March 13, 2003, the QRC and the employee met with representatives of the employer to discuss a return to work for the employee. Based upon that discussion, the employer offered the employee a position as a yard man, a job in which the employee would conduct inventory and do yard and shop clean up. The employee did not accept the job. In a letter dated March 31, 2003, Dr. Stussy wrote the QRC and stated he believed the offered job was inappropriate even though he believed the employee could physically perform the job duties. According to Dr. Stussy, the only reason for the light duty job would be to eventually return the employee to his ususal pre-injury job and since the employee would never be able to do that job, there was no reason for the employee to take the light duty job. In a subsequent letter, dated April 28, 2003, Dr. Stussy stated the employee was not able to perform the offered job, although no explanation was provided.

Dr. Stussy had released the employee to work his self-employment in video production. At hearing, the employee introduced an exhibit which he described as showing his earnings. On cross examination, the employee stated that in weeks in which he earned more than $600, his weekly wage at the employer on the date of his injury, he only recorded $600. He testified that his first QRC had advised him to report his earnings to the insurer in this manner. The employee testified that there were weeks when he made in excess of $600, but did not provide specific figures.

In June 2003, the employee filed a rehabilitation request to change his QRC on the basis of a lack of communication from Mr. Villa. The employer and insurer objected. During the period when the parties were waiting for a conference, eventually held on September 25, 2003, Mr. Villa did not conduct any rehabilitation activities with the employee. In January 2003, the insurer had added a job placement specialist, Paul Larson, to the file and he began providing services to the employee. Mr. Larson met with the employee, discussed the job search process with him, and prepared a job placement plan and agreement. Because of the employer=s job offer in March 2003, no job search was started and Mr. Larson closed his file. He was asked to reopen his file in June 2003 and eventually was able to reach the employee on June 27. The employee advised Mr. Larson that he did not wish to job search with him until the QRC change was completed.

The employee testified that he looked for work on his own during the pendency of his QRC change request. He networked in his field of self-employment, applied for work with local television stations, and used internet and newspaper job listings. The employee testified that he avoided physical work but when asked about the specific restrictions given by Dr. Stussy, the employee responded, AYou know, frankly, I don=t even know exactly what they are. They=ve been in place for some time.@ The employee also testified that his job search activities were limited by his chiropractic treatment. He indicated that it was necessary to rest anywhere from a couple of hours to a day after receiving chiropractic care and that he did not job search during that time.

The employee continued to treat with Dr. Stussy up through the date of hearing, seeing him one to three times a week. In addition, the employee treated with Dr. Toftness once a week or once every two weeks.

The employee=s medical records were reviewed on behalf of the employer and insurer by an orthopedist, Dr. Mark Thomas. In his report of June 26, 2003, Dr. Thomas concluded that the employee=s work injury was a minor soft tissue sprain/strain of the left shoulder which had resolved. It was Dr. Thomas=s opinion that the employee had not injured his neck in October 2002. Dr. Thomas concluded that the employee did not require any work restrictions. Dr. Thomas conducted a physical examination of the employee on October 9, 2003. In his subsequent report he indicated that the employee=s physical examination was completely normal with no objective findings. It was Dr. Thomas=s opinion that the employee did not injure his neck, mid back, low back, or right shoulder on October 31, 2002. He stated that the left shoulder injury was a temporary injury which had resolved. Dr. Thomas concluded that the employee was at maximum medical improvement with no permanent partial disability, that the employee needed no work restrictions, and that the employee did not need any additional medical or chiropractic treatment.

Dr. Stussy referred the employee to Dr. Thomas Kraemer for a physical medicine and rehabilitation consultation which took place on November 25, 2003. On exam, Dr. Kraemer found hypertonicity and tightness in the employee=s spine and shoulder muscles and noted limitation in the employee=s cervical range of motion. There is no indication that Dr. Kraemer reviewed any of the employee=s medical records other then the MRI=s which had been done previously. Dr. Kraemer provided an assessment of multiple conditions and recommended a program of Aprogressive dynamic strengthening exercises@ in conjunction with continued treatment by Dr. Stussy.

The employee=s request to change QRC=s was denied after an administrative conference and he filed a request for formal hearing. The employer and insurer filed a Notice of Intention to Discontinue Compensation based on Dr. Thomas=s report of June 26, 2003, which resulted in discontinuance of temporary total disability compensation after an administrative conference. The employee filed an objection to discontinuance. The employer and insurer also filed a Petition to Discontinue on July 30, 2003. Those pleadings, as well as a medical request filed by the employee, were consolidated for hearing. The hearing was held before Compensation Judge Paul Rieke on February 5, 2004.

Issues for determination were whether the employee had sustained an injury to his neck at the time of his work injury of October 31, 2002, and whether the employee was entitled to temporary total disability and temporary partial disability compensation from July 26, 2003, to the date of hearing. In Findings and Order of February 12, 2004, the compensation judge found the employee had sustained a cervical injury but denied the employee=s claim for wage loss benefits, finding that the employee=s work injury had resolved and was not a contributing cause of any wage loss sustained by the employee, that the employee had reached MMI, that the employee did not engage in a diligent search for employment, and that the employee=s reported wages from self-employment were not an accurate measure of his post-injury earning capacity. The employee has appealed.

The compensation judge determined that the employee=s work injury had resolved and was no longer a contributing factor in any wage loss incurred by the employee. In making that determination, the compensation judge specifically accepted the opinion of the IME, Dr. Thomas. On appeal, the employee argues that the compensation judge erred by doing so because Dr. Thomas=s opinion lacked foundation. We disagree.

At the time of his report of October 26, 2003, Dr. Thomas had reviewed the employee=s medical records and conducted a physical examination. This information generally provides the requisite foundation for a medical opinion. Scott v. Southview Chevrolet, 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978). The employee contends however that Dr. Thomas=s conclusions were shown to be wrong by the Aobjective@ findings by the employee=s treating doctors after Dr. Thomas=s exam. Even assuming that these findings were objective, the argument does not mean that Dr. Thomas had no foundation for his opinion. Dr. Thomas considered all of the information available at the time of his evaluation. The argument made by the employee goes to the weight to be given an opinion by the compensation judge in considering the evidence in the case. We have consistently held that the choice between competing medical opinions is for the compensation judge to make and a decision made on the basis of that choice will not be reversed by this court. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Nini v. Gold=N Plump (W.C.CA.. March 15, 2004).

There is other evidence in the record which supports the compensation judge=s decision on this issue. As early as March 3, 2003, Dr. Becker concluded that, with regard to the employee=s left shoulder condition, the employee needed no further treatment or work restrictions. While the employee submitted a workability form from Dr. Becker dated February 4, 2004, which placed temporary restrictions on the employee, there is no evidence as to what information was given to Dr. Becker to cause him to prepare that form. With regard to the cervical condition, there is no evidence that the employee sustained anything other than a strain/sprain. There were no objective findings on exam when Dr. Thomas saw the employee and the employee=s reported cervical symptoms were not substantially different then those he had when Dr. Stussy diagnosed him with cervical problems before the work injury.

Much of the evidence concerning the ongoing nature of the work injury came from the employee=s testimony. The compensation judge found the employee=s testimony that he Acontinued to have overwhelming excruciating pain@ (T. 52) not to be creditable when compared with the employee=s behavior at hearing. Assessment of credibility of a witness is the unique function of the trier of fact. Brennan v. Joseph G. Brennan, M.D., P.A., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988).

We conclude substantial evidence exists to support the conclusion of the compensation judge that the employee=s October 31, 2002, work injury resolved and was not a contributing cause of any wage loss sustained by the employee after October 9, 2003, the date of examination by Dr. Thomas.

Our affirmance of the compensation judge=s determination on this issue renders moot the issue of whether the employee reached maximum medical improvement on October 31, 2003, the date the report of Dr. Thomas was served on the employee. We will not consider this question further other than to note that the question of maximum medical improvement is one of ultimate fact to be decided by the compensation judge. The evidence we have reviewed above amply supports his conclusion on this point as well. Hammer v. Mark Hagen Plumbing, 435 N.W.2d 525, 41 W.C.D. 624 (Minn. 1989).

The compensation judge=s conclusion that the work injury was not a contributing factor after October 9, 2003, did not foreclose the employee=s claims for temporary total and temporary partial disability from July 26, 2003, to October 9, 2003. The compensation judge denied those claims, finding that the employee had not engaged in a diligent job search and that the employee=s reported earnings from his self-employment were not an accurate measure of his diminished earning capacity. The employee appeals these findings.

We find substantial evidence in the record to support the compensation judge=s determination that the employee did not engage in a diligent job search. The compensation judge referred to two job possibilities the employee had been given in June 2003 which he did not investigate. The employee contends on appeal that it was error for the compensation judge to consider this evidence since it was before the period for which benefits were claimed. We disagree. We conclude, as did the compensation judge, this evidence was relevant as to the interest, or lack thereof, the employee had in job search as a means of returning to work after his injury.

We also find it relevant, as did the compensation judge, that the employee did not know his physical restrictions from the injury. One can assume that generally an injured worker looking for employment knows what limitations there might be in finding employment. The employee argues in his brief that his uncertainty on this point was due to the fact that Dr. Becker had placed new restrictions on him the day before the hearing. The record is clear however that in responding to a question about restrictions, the employee was referring to Dr. Stussy=s restrictions which had Abeen in place for sometime.@ (T. 114). The employee also testified that he limited his job search in order to recover from his chiropractic treatments. Other than the employee=s testimony, there is no evidence in the record which supports this limitation in activity.

Finally, the employee testified in response to a question from his attorney on the issue of job search that, AI was working continuously during that period in my self-employment occupation.@ (T.63). The employee stated that, in addition, he networked with his clients to develop more business. The employee testified that his business had begun to decline in 2000 and had been worse in 2001 and 2002, such that he needed to find the employment he obtained with Woodsmen Midwest. In those circumstances, the compensation judge was justified in concluding that the employee had essentially removed himself from the competitive labor market when he pursued self-employment which the employee had already concluded was not economically viable.

The compensation judge determined that the employee=s reported earnings from his self-employment was not a measure of diminished earning capacity. In direct testimony, the employee stated that the exhibit introduced on his behalf was an accurate representation of his post-injury earnings from self-employment. On cross examination, the employee admitted that he did not record amounts he earned in excess of $600 per week, his weekly wage on date of injury, and that there were weeks when he earned more than that amount. No evidence was produced as to the actual earnings of the employee. Considering whether post-injury earnings are an accurate measure of earning capacity presupposes that the post-injury earnings are known. Such is not the case here.

^[1] 839.0 - cervical dislocation, 723.1 - cervicalgia and 724.1 - thoracic spine pain. International Classification of Diseases, 9^th Edition, www.cdc.gov.