JUDSON E. ALVORD, Employee/Cross-Appellant, v. DEZURIK d/b/a SPX VALVES & CONTROLS, and CONSTITUTION STATE SERVS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 5, 2005

 

No. WC05-148

 

HEADNOTES

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Where it was reasonable for the judge to conclude from the treating doctor=s office notes that the employee=s medical condition had not yet stabilized, where the judge=s decision was supported by other expert medical opinion, and where there was a very real prospect that additional surgery would bring further significant improvement in the employee=s condition, the compensation judge=s conclusion that the employee had not yet reached maximum medical improvement was not clearly erroneous and unsupported by substantial evidence.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee=s medical condition was unstable, where there was a likelihood of imminent surgery, where the employee=s QRC recommended pursuing a job search only after the employee=s condition had stabilized, and where the employer had no light duty work available for the employee, the compensation judge=s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee had been released by his doctor to perform light duty work but had not looked for a job.

 

APPEALS - SCOPE OF REVIEW.  Where the finding from which the employee had cross-appealed pertained to benefits that were not at issue before the compensation judge and that had no relevance to any claim for benefits at issue on appeal, and where there was no merit in the employee=s further contention that the judge erred in referring to an adverse medical exam as an independent medical exam, the WCCA declined to address any possible error of fact in the finding appealed from or in the judge=s choice of words.

 

Affirmed.

 

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

Compensation Judge: Gary M. Hall

 

Attorneys: Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Appellants.  David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Cross-Appellant.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee has not reached maximum medical improvement from his personal injury of December 6, 2000, from his award of temporary total disability benefits continuing from April 21, 2004, and from the judge=s refusal, in the alternative, to discontinue benefits as of July 21, 2004, when the employee was released to return to work.  The employee cross-appeals from the judge=s finding that the employee was paid temporary total disability benefits following a lay-off from work on June 28, 2003, and from the judge=s reference to the employer and insurer=s medical expert=s evaluation as an independent medical exam rather than an adverse medical exam.  We affirm.

 

BACKGROUND

 

On December 6, 2000, Judson Alvord [the employee] sustained an admitted injury to his lower back while in the course of his work as a maintenance mechanic with DeZurik/SPX Corporation [the employer].  The employee was fifty years old on that date and was earning a weekly wage of $733.70.  Following the injury, the employee treated with Dr. Kevin Stiles in Foley, Minnesota, who sent him for physical therapy and an MRI scan and eventually referred him to Dr. James Ogilvie at Twin Cities Spine Center.  On May 6, 2002, Dr. Ogilvie performed a bilateral L4-5 decompression and transforaminal lumbar interbody fusion with instrumentation.

 

Four months following this surgery, the employee was provided with rehabilitation assistance by Donald Dickerson, and Dr. Ogilvie released the employee to light-duty work with limited hours.  The employer accommodated the employee with a part-time, light-duty temporary position through January 5, 2003, and on January 8, 2003, Dr. Ogilvie noted that the employee=s x-rays showed multiple level degenerative disc disease, and that his implants were in a satisfactory position.  The doctor continued the employee=s release to part-time work, stating, ANow that his fusion seems to be healing up, the restrictions are not only to protect his fusion until it[=]s mature but also the superadjacent levels.@

 

On February 12, 2003, Dr. Ogilvie issued a Health Care Provider Report, finding the employee to have reached maximum medical improvement [MMI] on that date, with a permanent partial disability rating of 17% of the whole body,^[1] and releasing the employee to light/sedentary work.  This report was served on the employee on February 18, 2003.

 

The employee returned to work again for the employer on February 28, 2003, at a light-duty janitorial position.  Upon the employee=s follow-up on March 5, 2003, Dr. Ogilvie expressed some concern about the employee=s ongoing back pain and the possibility that his fusion was not healing properly.  He continued to approve of the employee=s work trial, but he ordered a CT scan of the L3-4 and L4-5 levels of the employee=s spine.

 

The employee was not able to physically handle his light-duty janitorial position and, in early April, was assigned to a less physically demanding job in the employer=s Atag room.@  Upon a follow-up visit by the employee on April 30, 2003, Dr. Ogilvie reported that the employee=s CT scan showed a solid posterior fusion but an incompletely consolidated fusion anteriorly.  He continued to recommend sedentary work for the employee Aboth to protect his fused segment and also to prolong the function of his adjacent segments,@ thus obviating additional surgical treatment.  Based on the employee=s degenerative changes at L3-4 and L5-S1, Dr. Ogilvie assigned an additional 10% whole body impairment under Minnesota Rule 5223.0390, subpart 4C(2), and again indicated that the employee had reached MMI with respect to his previous medical treatment.

 

On June 25, 2003, Dr. Ogilvie reported that the employee had some Abridging spicules of bone anteriorly, although it [was] not a robust fusion.@  He continued to report a solid posterior fusion, however, and released the employee to sedentary work on a permanent basis.  On the following day, the employer notified the employee that he was being laid off from his tag room position effective June 28, 2003.

 

In a status report dated August 5, 2003, QRC Dickerson noted that, in light of Dr. Ogilvie=s sedentary restrictions, returning to work with the employer did not appear to be a realistic option.  Therefore, Mr. Dickerson prepared a rehabilitation plan, calling for vocational testing, career testing, and job search.  About two weeks later, in his chart note of August 20, 2003, Dr. Ogilvie indicated that the employee=s fusion surgery had healed satisfactorily, and he reiterated that the employee had reached MMI.

 

On September 8, 2003, the employee again attempted to return to work in a modified janitorial position with the employer.  This job was the same light-duty position that the employee had  previously attempted in February and March of 2003, but with additional modifications.  The employee returned to see Dr. Ogilvie on October 22, 2003.  The doctor noted on that date that the employee had returned to work in a modified janitor position but was unlikely to tolerate it long term, and he suggested that some sort of retraining might be considered.  He also emphasized that the employee=s restrictions were permanent and Awill not loosen.@  Sometime after this visit, Dr. Ogilvie retired and moved out of state.

 

The employee continued working at the modified janitorial position, reaching eight hours per day of October 27, 2003, until about December 30, 2003.  On the latter date, the employee met with the employer and was again laid off due to lack of work within his physical restrictions.

 

The employee was examined on behalf of the employer and insurer by Dr. H. Keith Stinson on December 30, 2003.  Dr. Stinson had previously examined the employee on February 12, 2002.  Based on his examination and review of the employee=s medical records, Dr. Stinson opined that the employee Awas probably not at maximum medical improvement when [Dr. Ogilvie] had previously stated so.@  He requested an opportunity to view a subsequent CT scan or subsequent x-rays, which might demonstrate solid bone fusion.  Dr. Stinson stated that Aat the current time@ his opinion was guarded as to whether or not the employee was at MMI.  Regarding the employee=s restrictions, he indicated that his recommendations would depend upon the employee=s subsequent radiological studies, which he would require to evaluate the strength of the anterior transforaminal lumbar intervertebral fusion.

 

On January 15, 2004, the insurer approved of job search for the employee outside the date-of-injury employer, and the services of placement specialist Gary Hogan were retained.  In his status report of March 8, 2004, QRC Dickerson also recommended vocational testing and a transferable skills analysis, to help identify the employee=s weaknesses and strengths and to further  identify return-to-work possibilities for the employee.

 

In light of his continued low back pain, the employee returned to Twin Cities Spine Center on April 21, 2004, where he was seen by Dr. James Schwender.  Dr. Schwender ordered a CT scan and an MRI scan to evaluate the status of the employee=s spinal fusion, and he took the employee off work pending further evaluation.  On June 2, 2003, Dr. Schwender noted that the CT scan had revealed a pseudoarthrosis at the L4-5 level, along with adjacent segment disease at L3-4.  He continued to restrict the employee from working, and he ordered a lumbar discogram in order to better evaluate surgical options.  The discogram, evidently performed on June 15, 2004, revealed low level nonconcordant pain at L3-4 and L5-S1, with pseudoarthrosis at L4-5.

 

On July 21, 2004, Dr. Schwender recommended a work hardening program for the employee and released him to part-time, light-duty work through September 30, 2004.  The employee participated in work hardening at St. Cloud Hospital from August 2, 2004, through August 27, 2004.

 

On September 1, 2004, the employee filed a claim petition, seeking payment of temporary total disability benefits continuing from April 21, 2004.  The employer and insurer asserted that the employee was precluded from recommencement of temporary total disability benefits pursuant to Minnesota Statutes ' 176.101, subdivision 1(e)(2), because the employee was not actively employed when he became medically unable to work.

 

On November 3, 2004, at his last visit to Dr. Schwender before the hearing, the employee complained of ongoing severe low back pain and reported that the Awork hardening program has, if anything, increased his severity of discomfort, particularly with activity.@  Dr. Schwender continued to authorize part-time, light-duty work through January 31, 2005, pending consideration of surgical options.  The doctor indicated that he wanted to consult with his colleagues and to review the films and discography reports before making a final recommendation as to whether it would be more appropriate to address the employee=s pseudoarthrosis or to address the adjacent segments of the employee=s lumbar spine.

 

The employee=s claim came on for a hearing before a compensation judge on December 20, 2004.  Issues at hearing included (1) whether the employee was entitled to temporary total disability benefits continuing from April 21, 2004, (2) whether the employee=s temporary total disability claim should be denied because he is more than ninety days past notice of MMI and/or because he was not working at the time he became medically unable to work, and (3) whether, if he is awarded temporary total disability benefits, the employee=s benefits should end on July 21, 2004, when he was released to return to work.  By findings and order issued February 14, 2005, the compensation judge concluded that the employee had, in fact, not yet reached MMI by the time of hearing and was entitled to temporary total disability benefits continuing from April 21, 2004.  He also determined that subsequent to July 21, 2004, the employee was cooperating with his QRC and was entitled to receive temporary total disability benefits after that date.  The employer and insurer appeal and the employee cross-appeals.

 

STANDARD OF REVIEW

 

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 (2004).  Substantial evidence supported 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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 299 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  Maximum Medical Improvement

 

The employer and insurer contend that the compensation judge applied an incorrect standard in determining whether or not the employee was at MMI, and they assert that the judge=s determination that the employee had not reached MMI is unsupported by the evidence and is clearly erroneous.  They argue (1) that the judge appeared to give little weight to the fact that the employee=s treating surgeon, on three separate occasions, stated that the employee had reached MMI, (2) that the judge did not consider the fact that the employee=s condition had worsened or, at best, had not improved since the original MMI opinion, (3) that the judge seemed to find it significant that the employee remains disabled and under restrictions as far as his ability to work is concerned, and (4) that the judge appeared to find it significant that there was a possibility that the employee may undergo additional medical treatment.  We are not persuaded.

 

Maximum medical improvement is defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@  Minn. Stat. ' 176.011, subd. 25.  Maximum medical improvement Aoccurs upon medical proof that the employee=s condition has stabilized and will likely show little further improvement.@  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions, and other relevant evidence.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528.29, 41 W.C.D. 634, 639 (Minn. 1989).

 

In the present case, the only doctors who expressed opinions regarding the issue of MMI were Dr. Ogilvie and Dr. Stinson.  At Finding 20, the compensation judge concluded that, since Dr. Ogilvie=s MMI determination on February 12, 2003, the employee=s symptoms had worsened rather than stabilized.  While we acknowledge that evidence that an employee=s condition is deteriorating may be consistent with a finding of MMI, Mundy v. American Red Cross, slip op. (W.C.C.A. Aug. 29, 2000), such evidence may also be consistent with a finding that an employee=s condition has yet to stabilize.  In his memorandum, the judge noted that, less than a month after his MMI opinion, Dr. Ogilvie expressed concern that the employee=s fusion may have failed and that a subsequent CT scan showed a non-union.  The judge could reasonably conclude that Dr. Ogilvie=s office notes reflect a medical condition that had not yet stabilized rather than a condition that had plateaued and was subsequently worsening.

 

Also at Finding 20, the compensation judge stated that he found Dr. Stinson=s opinion regarding MMI to be more persuasive than the opinion of Dr. Ogilvie in this case.  Dr. Stinson=s opinion was that the  employee probably had not reached MMI in February 2003, and as of the time of his exam on December 30, 2003, he still couldn=t state that the employee had reached MMI.  It is the role of the compensation judge to resolve any differences or conflicts between the medical experts.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  As we indicated above, where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734,  40 W.C.D. 948, 957 (Minn. 1988).  Here, the judge reasonably accepted Dr. Stinson=s opinion over that of Dr. Ogilvie.  Given the rejection of Dr. Ogilvie=s MMI opinion, there is no other medical opinion of record indicating that the employee has reached MMI.

 

Last, at Finding 20, the judge also found that there was still within the realm of reasonable medical probability a very real prospect of additional surgery with further significant improvement in the employee=s condition.  In light of the employee=s medical records, the medical opinions offered, and the record as a whole, substantial evidence supports the judge=s determination that the employee has not yet reached MMI, and we affirm.

 

2.  Benefit Entitlement after July 21, 2004

 

The employer and insurer contend also that the judge failed to address their argument that the employee failed to conduct a reasonable and diligent job search after he was released to return to work by Dr. Schwender on July 21, 2004.  They argue that the fact that the employer did not have light duty work available, together with the fact that the employee was considering the possibility of future medical treatment, does not relieve the employee of his burden of proving an adequate job search.  We are not persuaded.

 

At Finding 21, the compensation judge found that, although the employee had been released to light duty work effective July 21, 2004, the employee was not precluded from receiving temporary total disability benefits, where Ahis employer does not have work available within his restrictions, he is cooperating with his QRC, and surgery is likely imminent.@  In Redgate v. Sroga=s Standard Service, the supreme court held that a diligent job search Ais a search that is reasonable under all the facts and circumstances.@  421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988).  In Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989), this court held that once a rehabilitation plan is developed the issue is whether the employee is making a good faith effort to participate in the plan.  In the present case, the facts and circumstances support the compensation judge=s conclusion that the employee is not precluded from receiving temporary total disability benefits after July 21, 2004, based on his release from work.

 

First of all, it is clear that the employee was following the advice of Dr. Schwender and his QRC when he entered a work hardening program at St. Cloud Hospital in August 2004.  The purpose of the program was to better determine what the employee could physically tolerate rather than to conduct a job search and possibly put a potential job at risk by trying to do work conditioning on the job.  Unfortunately, after completing the work hardening program, the employee=s symptoms had, if anything, increased in severity, particularly with activity.  The employee was unable to return to see Dr. Schwender until November 3, 2004, at which time the doctor indicated that he wanted to obtain additional input from his partners before recommending a particular surgical approach for the employee.  Dr. Schwender was uncertain as to whether it would be most appropriate to address the employee=s pseudoarthrosis or to address the adjacent segments of his lumbar spine.

 

Under the facts and circumstances presented here, the employee=s unstable medical picture, the likelihood of impending surgery, and the QRC=s desire to pursue job search only after the employee=s condition had stabilized, we cannot say the judge was unreasonable in awarding temporary total disability benefits after July 21, 2004.

 

3.  Cross-Appeal of Employee

 

The employee appeals first from the judge=s finding that, after the employee was laid off from his Atag room@ position on June 28, 2003, the employee was paid temporary total disability benefits.  The employee argues that this is not true and that the employer and insurer appear to have Amiscoded@ the benefits paid.  Instead, he contends, the record should reflect that permanent partial disability benefits were paid.  We decline to modify the judge=s finding.

 

Benefits paid prior to April 21, 2004, were not at issue before the compensation judge at the hearing below.  The finding appealed from by the employee has no relevance to any claim for benefits here on appeal.  Even if the judge=s finding contains an error of fact, and we cannot so conclude on the record before us, we decline to address such an inconsequential error.

 

The employee next contends that the judge erred by referring to the employer=s exam with Dr. Stinson in Finding 13 as an independent medical exam rather than adverse exam.  We find no merit in this contention.