KARIM ADAM, Employee, v. SWIFT TRANSP., and GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 25, 2005

 

No. WC05-112

 

HEADNOTES

 

EVIDENCE - CREDIBILITY; DISCONTINUANCE - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination finding the employee=s testimony credible and that the employee did not misrepresent his employment status to his chiropractor, and the judge=s denial of the employer and insurer=s petition to discontinue benefits.

 

Affirmed.

 

Determined by:  Stofferahn, J., Wilson, J., and Pederson, J.

 

Compensation Judge:  Kathleen Behounek

 

Attorneys:  Christopher Middlebrook and Carlos Figueroa, Bloomington, MN, and Allen R. Webb, Burnsville, MN, for the Respondent.  M. Shannon Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s denial of their petition to discontinue.^[1]  We affirm.

 

BACKGROUND

 

This matter was initiated by the employer and insurer with the filing of a petition to discontinue on October 4, 2004.  It was alleged that the employee had been released to return to work with restrictions by his treating chiropractor, that the employer had offered work to the employee within those restrictions but that the employee had unreasonably refused to return to work.  In an amended petition to discontinue, filed November 15, 2004, the employer and insurer added claims that the employee had failed to cooperate with reasonable rehabilitation efforts and that the employee had failed to cooperate with his medical treatment by giving his chiropractor inaccurate information concerning his return to work.

 

On February 6, 2004, Karin Adam was employed by Swift Transportation as an over-the-road driver.  On that date, while proceeding west on I-90 on the way to Illinois from New York, the truck the employee was driving hit a patch of black ice and jack knifed.  The employee was injured in the incident and was taken by ambulance to St. Vincent Hospital in Erie, Pennsylvania.  The employee complained of neck, shoulder, and upper thoracic pain and was treated with ibuprofen.

The employer and its insurer, Gallagher Bassett Services, accepted liability for the employee=s work injury and began paying temporary total disability benefits.

 

When the employee returned to Minnesota, his initial treatment for his work injury  was at Hope Chiropractic Clinic in Minneapolis.  The dates of treatment are not known since those records are not in evidence.  On February 19, 2004, the employee began treatment at Back to Health Chiropractic, seeing Dr. Scott Koltes.  According to the chart notes from that visit, the employee had been to Hope Chiropractic only twice and had decided to transfer his care.  The employee reported that Hope Chiropractic had taken him off work.  The employee told Dr. Koltes that he had upper back and neck pain, radiating pain into his left arm, severe low back pain with radiation into both legs, and severe constant headaches.  On examination, Dr. Koltes found muscle spasm in the cervical, thoracic and lumbar spine as well as reduced range of motion in the cervical and lumbar spine.  Dr. Koltes began the employee on a daily program of chiropractic treatment and took the employee off work until March 20, 2004.

 

On March 20, 2004, Dr. Koltes restricted the employee from returning to work, this time until April 20, 2004.  Dr. Koltes continued to provide chiropractic treatment and recommended a neurological evaluation.  In his chart note of March 22, Dr. Koltes indicated that a neurological consultation had been arranged and that he would determine further care once he had received the results of the consultation.  At the April 20 appointment, Dr. Koltes extended the employee=s absence from work through May 21, 2004.

 

The employee saw Dr. Fred Lux at Noran Neurological Clinic on April 21, 2004.  The record is not clear if this was the neurological evaluation to which Dr. Koltes was referring since Dr. Lux=s report was sent to Dr. Dana Martin.^[2]  On examination, Dr. Lux found full mobility of the cervical spine with some discomfort on bilateral movement and some paraspinal muscle tightness.  Lumbar range of motion was reduced.  Dr. Lux identified the neurological exam as normal, provided medication, and recommended continued chiropractic care.  Dr. Koltes made no reference to this report in his continued chiropractic care of the employee.  On April 27, the employee reported to Dr. Koltes that his symptoms were improved and, after examination, Dr. Koltes concluded the employee was making progress, although continued care was necessary.

 

The employee returned to Dr. Lux on May 20, 2004, for follow-up.  Dr. Lux noted improvement from the first visit but added Vioxx to the Ultram that had previously been prescribed.  Dr. Koltes continued to treat the employee=s cervical, thoracic, and lumbar areas.  On May 22, Dr. Koltes extended the employee=s disability from work to June 22, 2004.  On July 7, 2004, Dr. Koltes released the employee to return to work with restrictions of lifting up to 10 pounds frequently, up to 25 pounds occasionally, and no more than 25 pounds.  The employee was not released to truck driving.

 

The employer sent the employee a letter dated July 14, 2004, offering him a temporary position Ain compliance with the work restrictions established by your treating physician.@  The job title, duties, or physical requirements of the job were not specified in the letter.  The employee was to begin work on July 21, but did not return to the employer at that time.  On July 14, 2004, Dr. Koltes signed a new Work Ability form taking the employee off work again.  The employee has not been released to work by Dr. Koltes since that date.

 

On July 21, 2004, the employee returned to see Dr. Lux who noted that the employee=s symptoms were better and that he continued to treat with Dr. Martin once a week.  Dr. Lux continued the employee=s medications but made no comments on the employee=s ability to work.  When the employee returned to Dr. Koltes on July 22, 2004, his history was recorded as:

 

The patient comes in today reporting that he feels as though his pain levels are so great due to going back to work.  Patient said that his pain within the neck is quite considerable and he has had much trouble sleeping at night due to his pain.  The patient does report that he is able to do small amounts of labor work for short periods of time but when performing work regular duties he says that his conditions greatly increase.  The patient says that overall he feels that he wants to get back to work but says he feels he is unable still at this time.@

 

On July 28, the employee was reported as stating:

 

The patient said that he is quite angry that the insurance company made him go back to work and now he has much more pain than he had weeks ago.  The patient reports that since he went back to work his right arm pain is much more and he is getting more lightning feeling within his neck and down into his back.

 

On August 2, the chart notes state that:

 

Patient still reports that since he went back to work conditions are still quite increased within the neck and back and feels as though he has regressed over the last week.

 

Finally on August 13, according to the chart notes:

 

The patient says that he feels as though he is almost back to pre-flare up status before you started working again.

 

The employee testified at hearing that at no time did he return to work with the employer.  He denied telling his chiropractor that he had returned to work.

 

The employee=s last appointment with Dr. Lux identified in the record was on October 22, 2004.  The employee was reported as Aexperiencing a significance amount of pain@ which resulted in severe limitation in his range of motion and disruption of his sleep.  Dr. Lux also stated in his chart note that Ahe is a driver and he is currently not on any work restrictions.@  Dr. Lux recommended a muscle relaxant to use at bedtime.

 

The employee was examined by Dr. Koltes on October 29, 2004.  In his assessment of the employee, Dr. Koltes stated:

 

The patient in my opinion is not able to return to work yet unless there is a job opening which would consist of no physical natured activities, and no static postures of the neck or back, as well as no excess movement of the cervical spine.  I am still waiting to talk to the QRC for job descriptions to try to determine proper placement of this patient with his employer.

 

At some point after his injury, the employee was provided with rehabilitation services with a qualified rehabilitation consultant, Steve Kurenitz.  Mr. Kurenitz=s report of October 1, 2004, was introduced into evidence.  Mr. Kurenitz reported that he had been unable to schedule a meeting with the employee.  AAfter some initial difficulty@ in contacting the employee, a meeting had been scheduled for September 17, but that morning a message had been received from the employee that he would not meet with the QRC without his lawyer.  Mr. Kurenitz stated that he had spoken with the employee=s attorney and that he had been informed subsequently by the employee=s attorney that  the attorney had told the employee to contact Mr. Kurenitz.  Mr. Kurenitz stated that as the date of his report, he had not heard from the employee.

 

This matter was heard by Compensation Judge Kathleen Behounek on December 1, 2004.  In her Findings and Order issued on December 21, 2004, the compensation judge denied the employer and insurer=s petition to discontinue.  The compensation judge found that the preponderance of the evidence did not support the allegations of the petition and amended petition to discontinue.  The employer and insurer appeal.

 

DECISION

 

The employer and insurer contend on appeal that the compensation judge erred in denying their petition to discontinue benefits.  The employer and insurer argue that the employee misrepresented his employment status to his chiropractor and in doing so failed to cooperate with medical treatment and also caused his chiropractor to rescind the employee=s release to return to work inappropriately.  The employee denied at hearing that he had told his chiropractor that he had returned to work and the compensation judge accepted this testimony as credible.  The question for this court initially is whether this finding of credibility should be affirmed.

 

Assessment of witness credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 221 (Minn. 1989); Davidson v. Thermo King, 64 W.C.D. 380, 391 (W.C.C.A. 2004).  The compensation judge based her determinations in substantial part on what she perceived as the employee=s communication difficulty.  The employee, born in 1968 in Somalia, immigrated to this country in 1999, and was unable to testify at the hearing without the assistance of an interpreter.

 

Although Dr. Koltes apparently had an interpreter available to present the employee=s history, the compensation judge was in a unique position to assess the employee=s communication skills from his testimony at the hearing with the assistance of an interpreter.  We note from reviewing the transcript that, despite the presence of an interpreter, communication at the hearing was quite difficult at times.  Further, as the compensation judge pointed out, Athe chiropractor=s notes, as a whole, are rather unclear.@  The quotes cited by the employer and insurer in its brief and quoted earlier in this decision are accurate, but the entire chiropractic records are replete with statements that are either inconsistent or simply incapable of being understood.  This supports the compensation judge=s conclusion that the quotes are the result of miscommunication and not an attempt by the employee to mislead his chiropractor.  We are unable to state that the compensation judge erred in her determination on this issue and we affirm the compensation judge=s finding that the employee did not misrepresent his employment status to Dr. Koltes.

 

The employer and insurer also argue that the compensation judge erred in failing to discontinue the employee=s benefits on the basis of what they term his unreasonable refusal of the employer=s job offer.  We disagree.  The job offer made by the employer by its letter of July 14, 2004, offered employment in a temporary position to start July 21, within the restrictions set by the employee=s treating chiropractor.  However, on July 14, Dr. Koltes completed a Work Ability form restricting the employee from all employment.  Given our affirmance of the compensation judge=s determination that this recision was not the result of misrepresentation by the employee, we also affirm the compensation judge=s determination that the employee did not act unreasonably in refusing to return to work on July 21, 2004, when his treating chiropractor had taken him off all work as of that date.

 

Finally, the employer and insurer argue on appeal that the employee failed to cooperate with rehabilitation and his benefits should have been discontinued on that basis.  As evidence of the employee=s non-cooperation, the employer and insurer rely on the October 1, 2004, report of the QRC.  That report indicates that the QRC had Asome initial difficulty@ in contacting the employee, that the employee cancelled a meeting with the QRC at the last minute because he wanted his attorney with him at the meeting, and that between the time of the scheduled meeting and the date of his report, the QRC had not been contacted by the employee.  The compensation judge found that this evidence did not establish misconduct.  She noted that there was no evidence as to what had taken place between the QRC and the employee since the time of the QRC=s report, and also noted that the employee testified that he had met with the QRC on two occasions and that he understood the requirement of meeting and working with the QRC.  We are unable to state, in light of all of the evidence on this issue, that the compensation judge erred in refusing to discontinue benefits on the basis of non-cooperation.

 

The decision of the compensation judge is affirmed.