BRIAN C. MCFARLAND, Employee/Appellant, v. DAHL TRUCKING, INC., and AMERICAN INTERSTATE INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 4, 2005

 

No. WC04-305

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB OFFER - PHYSICAL SUITABILITY.  Substantial evidence, including the well-founded opinion of the independent medical examiner (IME), supports the compensation judge=s findings that the employee could work subject to physical work restrictions provided by the IME, and that the employee refused an offer of gainful employment the employee could do in his physical condition.  The compensation judge, therefore, properly allowed discontinuance of temporary total disability benefits pursuant to Minn. Stat. ' 176.101,  subd. 1(i).

 

Affirmed.

 

Determined by:  Johnson, C.J., Wilson, J., and Stofferahn, J.

Compensation Judge:  Gary P. Mesna

 

Attorneys:  Brian C. McFarland, pro se, Fairmont, MN, Appellant.  Jay T. Hartman and Eric S. Westphal, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The pro se employee appeals the compensation judge=s discontinuance of temporary total disability benefits.  We affirm.

 

BACKGROUND

 

Brian C. McFarland, the employee, sustained a personal injury arising out of and in the course of his employment with Dahl Trucking, the employer, on July 19, 2003.  The employer and its insurer admitted the employee sustained a personal injury, but the nature and extent of that injury was disputed.  At some point, the insurer commenced payment of temporary total disability benefits.

 

The employee was seen in the emergency room of the Fairmont Community Hospital on July 19, 2003.  The employee reported he was sitting in his dump truck as it was being loaded when the truck tipped over onto its left side.  He stated that he was sitting in the driver=s seat and landed on his lateral chest wall striking the door rest.  The employee denied striking his head and stated he suffered no loss of consciousness.  A chest x-ray was normal.  Dr. Anderson diagnosed a contusion to the left chest wall and advised the employee to take ibuprofen and Darvocet.  The doctor released the employee to return to work without restrictions effective July 23, 2003.

 

The employee saw Dr. DuWayne Hanson at the Fairmont Medical Center on July 22, 2003.  He continued to complain of chest pain that he attributed to broken ribs.  The doctor refilled the Darvocet and instructed the employee to return if needed.  On July 31, 2003, the employee told Dr. Hanson that he wanted him to record his complaints of discomfort intermittently down his left shoulder into the hand.  Dr. Hanson continued the employee off work.  An x-ray on July 31, 2003, showed a minimally displaced fracture of the left 8th and possibly the 9th ribs without evidence of pneumophorax or pleural effusion.  A cervical MRI scan showed degenerative changes and moderate right-sided stenosis at C6-7.

 

The employee was examined by Timothy Soelter, P.A., at Fairmont Orthopedics & Sports Medicine on August 1, 2003.  The employee complained of numbness and tingling in his left arm and hand and tenderness in the neck.  A bone scan showed rib fractures at the 7th and 8th ribs with changes at the 7th and 9th costovertebral junctions.  Mr. Soelter diagnosed cervical disc disease at C6‑7 with foraminal stenosis on the right and left and rib fractures and ordered physical therapy.  The employee saw Dr. James Schwartz at the Fairmont Clinic on September 4, 2003, complaining of neck pain and numbness in his left arm and hand.  The doctor diagnosed a cervical spine injury with a herniated disc at C6-7 and aggravation of multilevel cervical degenerative disc disease.  Dr. Schwartz referred the employee to Dr. Shelley Wells for epidural injections.

 

On August 28, 2003, the employee saw Dr. Wells, complaining of headaches, dizziness and throbbing pain into both hands.  Dr. Wells diagnosed cervical pain, multilevel disc bulging, severe left foraminal stenosis, left arm radiculopathy into the C5-6 dermatomal region, and rib fractures.  The doctor prescribed a series of cervical epidural steroid injections.

 

The employee returned to see Dr. Schwartz on October 6, 2003, and stated the second epidural block provided by Dr. Wells wore off after a week and a half.  The doctor stated he had received from the insurer a list of light duty-work activities which he opined the employee should be able to perform.  Dr. Schwartz then released the employee to light-duty work.  The employee returned to work with restrictions on October 13, 2003, but went home after working for approximately one-half day on October 14 because he was having severe pain.  Dawn Pedersen, P.A., examined the employee on October 16, 2003, and took him off work until further notice.  The employee later returned to see Dr. Schwartz who recommended the employee undergo a cervical fusion.

 

Dr. Daniel H. Lachance, a neurologist, examined the employee at the request of the employer and insurer.  By report dated December 2, 2003, the doctor stated that the employee=s diffuse pain syndrome would not be uncommon following his injury.  The doctor acknowledged the nature and forcefulness of the physical trauma caused by the injury and stated the employee=s multiple rib fractures Aattest to the likely severity of the force involved.@  (Resp. Ex. 3.)  Dr. Lachance diagnosed a C7 root level injury with symptoms of C7 radiculopathy which, he stated, were likely the combination of a pre-existing condition as well as a new disc protrusion resulting from a personal injury.  The doctor, however, found no neurologic deficit attributable to the condition nor did he find any specific radicular pain syndrome.  The doctor stated the component of the employee=s symptoms attributed to the cervical radiculopathy was minor.  Dr. Lachance concluded the employee showed no indication for a decompression surgery of the C7 nerve root or a fusion surgery.  Rather, the doctor recommended physical therapy and analgesics.  Dr. Lachance found no evidence of any specific permanent physical injury and he did not expect the employee would have any permanent physical disability.  Finally, the doctor stated,

 

With regard to the cervical disc syndrome, I submit that Mr. McFarland=s pain syndrome consists of far more than a cervical disc syndrome attributable to a single cervical disc protrusion, which may have been part of a pre-existing condition to begin with.  Mr. McFarland=s pain syndrome is diffuse, encompassing thoracic segments, thoracic ribs, lumbar spine, and sometimes associated with waxing and waning headaches.  Moreover, given Mr. McFarland=s personality and predisposition toward this whole case, it is highly likely that there are additional psychological factors contributing to the maintenance of his pain syndrome.  There is no way that a cervical disc fusion at a single level would address this overall pain condition.

 

(Resp. Ex. 3.)

 

On January 22, 2004, Dr. Guy Sava examined the employee on referral from Dr. Hanson.  On examination, Dr. Sava noted full range of motion of the neck and found no evidence of any focal motor deficit or sensory symptoms.  The doctor concluded the employee had a large supratentorial component^[1] to his pain and did not believe the employee would benefit from a surgical procedure.

 

In January 2004, Mr. Marlin Dahl, the owner of Dahl Trucking, prepared a list of 19 different job tasks that he stated were within a ten pound lifting, pushing and pulling limit.  This list was provided to Dr. Lachance, who then wrote a report dated January 21, 2004, stating the employee could easily perform each of these jobs in his current physical condition.  The doctor stated the employee could work subject to a ten pound lifting restriction with limited repetitive bending, twisting, stooping and kneeling.  These 19 tasks were incorporated in letter dated January 21, 2004, which the employer sent to the employee along with an offer to return to work on January 28, 2004.  The employee did not accept the job offer.

 

In February 2004, the job list was sent to Dr. Schwartz, who responded with questions about some of the tasks.  By letter dated February 25, 2004, Mr. Dahl replied to the questions of Dr. Schwartz.  Dr. Schwartz then stated the employee could perform each of the 19 job duties but he placed some bending and lifting limitations on several of the job duties.  By letter dated March 3, 2004, Mr. Dahl offered the employee a full-time job at Dahl Trucking, Inc., incorporating the 19 tasks with the limitations established by Dr. Schwartz.  The employee was asked to return to work on Monday, March 8, 2004.  The employee did not accept the job offer or return to work with the employer.

 

The employee returned to see P.A. Pedersen on May 4, 2004, stating he was in a significant amount of pain and did not feel he was able to return to work.  Ms. Pedersen stated the employee would remain off work pending the results of an EMG.  Physical therapy was commenced.  In April 2004, Bruce Klutz, the physical therapist, noted that the employee was very uncooperative with his treatment plan and demonstrated pain out of proportion to movement patterns and stated symptom magnification was present.  In May 2004, Ms. Pedersen referred the employee to Jeffrey Kotulski, D.O., who encouraged the employee to return to some sedentary work.

 

Dr. Lachance reexamined the employee on May 25, 2004.  The doctor reported the employee suffered from an intractable chronic myofascial pain syndrome associated with, and sustained in part by, psychological factors.  The doctor stated the employee had symptoms of a chronic C7 radiculopathy temporarily aggravated by the July 2003 personal injury.  On examination, however, Dr. Lachance found no specific objective deficit or loss of function associated with the syndrome.  The doctor opined the employee sustained no permanent disability and remained able to work subject to the restrictions outlined in his January 21, 2004, report.  The doctor opined the employee had reached maximum medical improvement by November 15, 2003.

 

On May 25, 2004, the employee saw Dr. Kotulski, who recommended the employee not work until he was re-assessed in June.  On June 1, 2004, Dr. Kotulski continued the employee=s off work status.  In July 2004, Dr. Kotulski diagnosed myofascial pain syndrome with thoracic and left hip pain but noted the employee=s neck pain was improved.  Dr. Kotulski recommended an orthopedic consultation to assess the thoracic and hip pain.

 

The employer and insurer filed a Notice of Intention to Discontinue benefits (NOID) in January 2004, that was granted following an administrative hearing.  The employee then filed an Objection to Discontinuance that was heard before a compensation judge.  In a Findings and Order filed September 28, 2004, the compensation judge found the employee sustained an injury to his neck on July 19, 2003, which resulted in a minor chronic C7 radiculopathy with few objective findings and a chronic myofascial pain syndrome with strong psychological factors.  The compensation judge adopted the restrictions of Dr. Lachance limiting the employee to no lifting, pushing or pulling over ten pounds and no repetitive bending, twisting, stooping, or kneeling.  The compensation judge found the employer=s job offer in January 2004 was within the employee=s restrictions, found the employee=s refusal of the job offer was not reasonable, and found the employee had not made a diligent effort to find other work.  The employee appeals.

 

DECISION

 

The employee did not file a formal appellate brief in the case.  In reviewing the employee=s submissions, however, it appears the employee=s principal contentions are that the compensation judge=s findings regarding restrictions and the employer=s job offer are not supported by substantial evidence.  After carefully reviewing the testimony and the evidence in the case, we cannot agree.

 

Certainly, there is evidence of record which, if accepted by the compensation judge, would support a different outcome in this case.  It is not, however, this court=s function to substitute its judgment for that of the compensation judge.  Rather, the Workers= Compensation Court of Appeals must determine whether the findings of fact of the compensation judge 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 compensation judge=s findings if, in the context of the entire record, the findings 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).  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, 229 N.W.2d 521, 524 (1975).

 

Dr. Daniel Lachance examined the employee on November 15, 2003.  The doctor obtained a history from the employee, reviewed the relevant medical records and performed a physical examination.  As a general rule, this level of knowledge establishes a doctor=s competence to render an expert opinion.  Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).  By report dated January 21, 2004, Dr. Lachance opined the employee could work subject to a ten pound lifting restriction with very limited, repetitive bending, twisting, stooping or kneeling.  The compensation judge accepted the restrictions established by Dr. Lachance.  To the extent the restrictions set by Dr. Lachance differed from those set by Dr. Schwartz or Dr. Kotulski, it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The opinions of Dr. Lachance had adequate foundation and the compensation judge could reasonably rely upon them.  The compensation judge=s finding regarding the employee=s restrictions must, therefore, be affirmed by this court.

 

Marlin Dahl, the Vice President and Operations Controller of the employer, testified he prepared a letter dated January 21, 2004, sent to the employee.  (Resp. Ex. 1.)  That letter listed 19 specific job tasks, none of which, Mr. Dahl stated, required lifting of more than ten pounds or required any significant repetitive bending, twisting, stooping, lifting, climbing or reaching.  Each of the 19 tasks Mr. Dahl maintained were essential components of the employer=s operation and were not just Amake work@ jobs for persons with workers= compensation claims.  In the January 21, 2004 letter, the employer offered the employee work incorporating these 19 tasks starting on January 28, 2004.  Mr. Dahl testified the employee called the employer on January 27, 2004, and spoke with Angie Keg, the employer=s safety and human resources person.  According to Ms. Keg=s notes of the conversation, the employee initially refused the job and later called back to say he would not take the job until he obtained a second opinion.  The employee did not return to work on January 28, 2004.  The employee testified he could not accept the January 21, 2004, job offer because he had not been released to return to work by Dr. Schwartz.

 

Minn. Stat. ' 176.101, subd. 1(i), states:

 

Temporary total disability compensation shall cease if the employee refuses an offer of work that is consistent with a plan of rehabilitation filed with the commissioner which meets the requirements of section  176.102, subd. 4, or, if no plan has been filed, the employee refuses  an offer of gainful employment that the employee can do in the employee=s physical condition.

 

The compensation judge found the employee could work subject to restrictions of no lifting, pushing or pulling over ten pounds and no repetitive bending, twisting, stooping or kneeling.  The compensation judge further found the employer=s job offer was within the restrictions set by Dr. Lachance.  There is no dispute the employee refused the job offer, and there is no contention the job offer does not constitute Aan offer of gainful employment that the employee can do in the employee=s physical condition.@  Accordingly, substantial evidence supports the compensation judge=s discontinuance of temporary total disability benefits, and this court must affirm that decision.