TERRY G. STANGE, Employee/Appellant, v. STATE, DEP=T of TRANSP.,  SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 31, 2005

 

No. WC05-101

 

HEADNOTES

 

APPEALS - NOTICE OF APPEAL.  The employee=s narrative notice of appeal was sufficient to confer jurisdiction on this court and the employee=s appellate brief adequately explains the issues appealed.

 

CAUSATION - PSYCHOLOGICAL INJURY.  A condition resulting from an indirect causal relationship as here - - where the employee argued that as a result of his low back injuries, a contentious relationship developed with the employer and the stress of his relationship with the employer aggravated his psychological condition - - is generally not compensable as a workers= compensation injury.  The compensation judge did not err in accepting the independent medical examiner=s opinion that the employee=s depression was substantially caused by his struggles with the employer rather than a direct result of his back injuries.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s determination that the employee=s leave of absence from work from November 2000 through February 2001 was a substantial result of his non-compensable psychological condition, and his denial of temporary total disability benefits for this period of time.

 

REHABILITATION - COOPERATION.  Substantial evidence supports the compensation judge=s finding approving discontinuance of wage loss benefits for failure to comply with the terms of the Job Placement Plan and Agreement (JPPA).

 

PERMANENT TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee was working at the time of the hearing and the employer was paying temporary partial disability based on his wages, the compensation judge properly found the employee was not permanently and totally disabled as of the date of the hearing.

 

JOB OFFER - PHYSICAL SUITABILITY.  Substantial evidence supports the compensation judge=s findings that the March 20, 2003, functional capacities evaluation provided an accurate representation of the employee=s physical capabilities from that date through the date of hearing, and that Dr. Matson found the highway technician job suitable for the employee and that survey work was included in the job duties of a highway technician.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s finding of a 28 percent permanent partial disability and his determination that there was no underpayment of permanency benefits.

 

MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS.  Substantial evidence supports the compensation judge=s finding the employee failed to establish grounds for departure from the treatment parameters which provide a hot tub is not indicated for home use for low back conditions.

 

REHABILITATION - RETRAINING.  Where the employee agreed he was unlikely to be able to sit through classes or concentrate to read due to his chronic pain, the compensation judge reasonably concluded that exploration of retraining was not appropriate at this time.

 

ATTORNEY FEES - CONTINGENT FEES.  Where the compensation judge awarded benefits from which contingent fees could be paid and no hearing has been held on a pending attorney=s lien claim, the compensation judge did not err in ordering withholding from the benefits awarded pending resolution of the claim.

 

Affirmed.

 

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

Compensation Judge: Paul D. Vallant

 

Attorneys: Terry G. Stange, pro se Employee.  James A. Froeber, State of Minnesota, Employee Insurance Division, St. Paul, MN, for the Employer.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The pro se employee appeals from the compensation judge=s decision finding the employee=s depression was not causally related to his work injuries; denying the employee=s claims for additional temporary total disability, temporary partial disability and permanent partial disability, and for permanent total disability; and denying the employee=s requests for reimbursement for the purchase of a hot tub and for exploration of retraining.  We affirm.

 

BACKGROUND

 

Terry G. Stange, the employee, began working as a highway maintenance worker for the State of Minnesota, Department of Transportation (MnDOT), the employer, in January 1987.  On November 20, 1989, the employee sustained a personal injury to the low back for which the self-insured employer admitted liability.  As a result of the injury, on November 25, 1989, the employee underwent a microlaminectomy and discectomy at L6-S1,^[1] performed by Dr. Paul Matson, an orthopedic surgeon.  The employee returned to his pre-injury job with MnDOT in March 1990.

 

The employee sustained additional injuries to his low back on May 1, 1997, and December 21, 1997.^[2]  On January 9, 1998, Dr. Matson performed a second surgery to repair a disc herniation at L5-6.  The employee returned to light-duty work with the employer on February 16, 1998.  On May 4, 1998, Dr. Matson assigned permanent restrictions including a maximum 50 pound restriction on lifting and carrying on an occasional basis, with occasional, intermittent bending, twisting/turning, kneeling, and squatting.  Dr. Matson reviewed two MnDOT job descriptions, stating the employee=s pre-injury job as a highway maintenance worker exceeded his restrictions, but that a highway technician position was satisfactory.

 

The employee was transferred to the MnDOT Mankato office where he worked as a highway technician at full wage.  Unfortunately, a contentious relationship developed between the employee and his supervisors in the Mankato office.  In particular, the employee objected to periodic assignments to survey work in the fall and winter months, stating the work aggravated his back condition.

 

On October 26, 2000, the employee saw Dr. Michael Rath, his family physician, reporting an exacerbation of low back pain.  The employee gave a history of having twisted his back on October 24, 2000, while working on a survey crew, stating the work required him to walk on rough, uneven terrain.  The doctor diagnosed a mild exacerbation of low back pain, assigned a 15 pound lifting restriction, and ordered physical therapy.

 

The employee returned to Dr. Rath on November 13, 2000.  The doctor noted the employee=s low back symptoms had improved.  The employee also reported depressed mood with numerous conflicts at work regarding his work status.  Dr. Rath recommended a medical leave for the depression, advised the employee to keep an appointment with Dr. Edward Sathoff, his psychiatrist, and prescribed Effexor, an antidepressant.  The employee remained on medical leave through February 11, 2001.

 

While he was off work, a qualified rehabilitation consultant (QRC) was assigned to the employee.  The QRC met with Dr. Rath who recommended a functional capacities evaluation (FCE) which took place on January 11 and 12, 2001.  On January 24, 2001, Dr. Matson approved the restrictions in the FCE report, with slight modifications.  The employee returned to light-duty work on February 12, 2001, in the Safety Administration section of the Mankato office with a new supervisor.

 

The employee was then offered and accepted, with objections, a new position as a transportation aide in the Safety Administration section, beginning on June 13, 2001.  This was a full-time, modified job within the new restrictions assigned by Dr. Matson.  The employee=s wages were reduced and he lost seniority within MnDOT.  The self-insured employer initiated payment of temporary partial disability benefits.

 

On the morning of March 11, 2002, the employee experienced a severe onset of back and leg pain.  The employee was seen by Dr. Matson who ordered a CT mylogram and took the employee off work.  The study revealed a disc extrusion on the left at the L6-S1 level.  Dr. Mark Engasser, an orthopedic surgeon, examined the employee on April 9, 2002, at the request of the self-insured employer and agreed the employee had a recurrent disc herniation.^[3] On June 6, 2002, Dr. Matson performed a third low back surgery consisting of a microlaminotomy, discectomy, and removal of scar tissue and a bone spur at the L6-S1 level.^[4]  The employee returned to work with the employer in a light-duty capacity, four hours a day, on September 23, 2002.^[5]

 

The employee filed a claim petition alleging a new, work-related injury on October 24, 2000, and claiming temporary total disability and an underpayment of temporary partial disability benefits based upon his wage on that date.  In a Findings and Order served and filed March 10, 2003, a compensation judge found the October 24, 2000, injury was a temporary aggravation of the employee=s pre-existing low back condition, and the employee=s ongoing complaints, disability and treatment were the result of the continuing manifestation of his prior work injuries of 1989 and 1997.  The judge, accordingly, denied benefits based on the October 2000 injury.   This court affirmed the judge=s findings in a decision issued September 29, 2003.  In the meantime, on April 1, 2003, the employee filed a new claim petition alleging a consequential psychological injury and seeking temporary total disability from November 14, 2000, to February 12, 2001, and Apermanent partial disability to retirement.@

 

On March 20, 2003, the employee completed a second FCE requested by Dr. Matson.  The therapist considered the evaluation valid, observing the employee=s objective findings appeared to correlate with his subjective complaints.  The employee was seen in follow-up by Dr. Matson on April 16, 2003, who agreed with the restrictions set forth in the FCE report.  The employee was released to return to work eight hours a day with significant restrictions on lifting, carrying, bending, stooping and crouching, and non-continuous limitations on sitting, standing and walking requiring intermittent changes in activities.  Dr. Matson completed a Health Care Provider Report on April 29, 2003, stating the employee had reached maximum medical improvement (MMI) on April 16, 2003, and assigning a 32 percent permanent partial disability rating.  The self-insured employer served Dr. Matson=s MMI report on the employee on April 30, 2003.

 

On April 3, 2003, the employee was placed on an involuntary leave of absence on the basis the employer could no longer accommodate his light-duty assignment.  Rehabilitation services were resumed along with payment of temporary total disability benefits.  A Job Placement Plan and Agreement (JPPA) was executed on April 22, 2003, and a job search was initiated.  On about May 1, 2003,  the employee was notified his job had been abolished and he would be permanently laid off beginning June 17, 2003, due to MnDOT budget constraints.

 

The self-insured employer served a notice of intent to discontinue benefits (NOID) on June 16, 2003, seeking discontinuance of temporary total benefits effective June 12, 2003, on the ground the employee failed to cooperate with rehabilitation.  A second NOID was served on June 17, 2003, stating temporary total disability benefits would be discontinued effective July 28, 2003, on the ground the employee would then be 90 days post-MMI.  On July 21, 2003, following an administrative conference, a compensation judge issued an order granting the discontinuance.  The employee then filed an Objection to Discontinuance on September 19, 2003, alleging personal injuries on November 20, 1989, May 1, 1997, December 21, 1997, and October 24, 2000, and asserting entitlement to ongoing wage loss benefits.

 

On October 21, 2003, Dr. Judith Kashtan, a psychiatrist, performed an evaluation of the employee at the request of the self-insured employer.  By report dated October 28, 2003, Dr. Kashtan diagnosed long-standing, pre-existing dysthymic disorder (depression) and attention deficit disorder (ADD).  The doctor opined the employee=s emotional condition from November 2000 through February 2001 was causally related to his pre-existing psychiatric condition and was not a result of his temporary work injury on October 24, 2000.  In supplemental reports dated March 9, 2004, and August 5, 2004, Dr. Kashtan further opined the employee=s 1997 work injuries were not a substantial contributing cause of the employee=s psychological condition in 2000-2001, nor his ongoing psychiatric diagnoses.

 

The employee continued to search for work, and on November 17, 2003, began working part-time for Bumper to Bumper, an automotive repair center.  The self-insured employer  reinstated temporary partial disability benefits and continued to pay benefits through January 17, 2004, when the employee lost his job with the new employer for lack of work.

 

On April 20, 2004, the employee filed another claim petition and a rehabilitation request, listing work injuries in November 1989 and on May 1, 1997, and October 24, 2000, alleging a psychological injury and a new or re-injury of his low back, and claiming temporary partial disability benefits from April 14, 1998, to June 13, 2001, underpayment of wage loss benefits, reimbursement for a hot tub, and seeking exploration of retraining.  The employee=s claim petitions of April 1, 2003, and April 20, 2004, and Objection to Discontinuance were consolidated for hearing by order filed May 10, 2004.

 

On May 25, 2004, the employee was seen by Dr. Guy Sava for a neurosurgery consultation.  Dr. Sava noted the employee had persistent back pain, left thigh pain and numbness in both lower extremities.  He opined the employee had failed back syndrome with permanent disability and an inadequately treated pain management problem.  Dr. Sava did not believe surgery would provide any further benefit.  In a letter dated July 16, 2004, Dr. Sava supported the employee=s request for reimbursement for a hot tub, stating it appeared to be the only modality that gave the employee relief from his chronic pain syndrome.

 

On July 26, 2004, the employee returned to work, part-time, for Taylor Industries.  At the time of the hearing the employee was working two part-time jobs, having obtained a second part-time job with Mid-America Book Company.  The employee testified he was working about 40 hours a week.  The self-insured employer reinstated payment of temporary partial disability benefits.

 

Dr. Engasser reviewed additional medical records at the request of the self-insured employer.  By way of report dated August 5, 2004, the doctor stated there was no medical reason for the employee to have a hot tub due to his low back condition.  Dr. Engasser additionally assigned a 28 percent permanent partial disability of the body as a whole.  The self-insured employer paid an additional six percent in permanency benefits based on Dr. Engasser=s rating (28 percent minus 22 percent previously closed out by stipulation).

 

On August 4, 2004, the employee was seen by Dr. Lisa Davidson for a neurological consultation at the request of Dr. Matson.  The employee reported continuing lumbar region pain with numbness and weakness into the lower extremities and bilateral pain in the posterior thighs radiating down the legs.  Dr. Davidson=s impression was recurrent severe disc herniations and disc extrusions with a neurological examination consistent with bilateral L5 radiculopathy and a left S1 radiculopathy.  The doctor concluded the employee met the criteria for a failed back syndrome.   Dr. Davidson recommended a chronic pain clinic, and stated the employee remained disabled due to his low back pain and leg symptoms.

 

The employee=s claims were heard by a compensation judge on September 2, 2004.  In a Findings and Order served and filed November 3, 2004, the compensation judge found: (1) the employee=s pre-existing psychological condition was substantially aggravated by the stress of his relationship with his employer and was not causally related to his low back condition; (2) the employee=s claim for temporary total disability from June 13, 2003, through July 2003 was barred by the employee=s failure to cooperate with the rehabilitation plan; (3) the employee reached maximum medical improvement from the effects of his work-related back injuries by April 16, 2003, and the employee=s claims for temporary total disability benefits from and after July 29, 2003, were barred by Minn. Stat. ' 176.101, subd. 1(j); (4) the employee was working at the time of the hearing and failed to establish he was permanently totally disabled at that time; (5) Dr. Engasser properly rated the employee=s permanent partial disability at 28 percent of the body as a whole; (6) home use of hot tubs is not indicated for low back conditions pursuant to Minn. R. 5221.6200, subp. 8, and the employee failed to establish grounds for departure from the treatment parameters; (7) exploration of retraining was not a reasonable direction for rehabilitation at the time of the hearing; and (8) an attorney=s lien had been filed by attorney Martin Montilino for time spent on this matter.  The judge denied the employee=s claims for additional benefits, but ordered the self-insured employer to recalculate periods of temporary total disability benefits resulting from the December 21, 1997, work injury and pay to the employee any resulting underpayment.  The judge further ordered withholding 25/20 percent from the amounts due the employee pending a resolution of the attorney lien.  The employee appeals.

 

DECISION

 

1.  Notice of Appeal - Subject Matter Jurisdiction

 

The self-insured employer contends the employee failed to comply with the statutory requirements for a notice of appeal.  The employer asserts the employee failed to list the particular findings appealed with specificity and failed to reference specific findings or orders by number, except 43 and 44 (exploration of retraining and the attorney lien).  Accordingly, the respondent argues this court lacks jurisdiction to consider any findings other than those listed by number.  We do not agree.

 

While review by this court Ais limited to the issues raised by the parties in the notice of appeal,@ Minn. Stat. ' 176.421, subd. 6, there is no requirement in the statute or this court=s rules^[6] that mandates a particular format or a listing of the findings or orders appealed by number.  A notice of appeal is sufficient if it shows an intent to appeal and the order appealed from, and apprises the Workers= Compensation Court of Appeals and the other parties of the facts and issues being appealed.  Atkinson v. NSP, 55 W.C.D. 347, 351 (summarily aff'd, Minn. Oct. 29, 1996).  While the pro se employee=s notice of appeal is not easily deciphered, it is sufficient to confer jurisdiction on this court, and the employee=s appellate brief adequately explains the issues appealed.  We  therefore decline to limit our review of the employee=s appeal.

 

2.  Causation - Psychological Condition

 

The employee asserts the compensation judge erred in finding the employee=s work-related back condition was not a substantial contributing cause of his psychological condition.  There is no doubt the employee suffers from a significant physical condition - - failed back syndrome with chronic pain and weakness - - as a result of his work-related injuries in 1989 and 1997.  (Finding 5.)  The compensation judge also found the employee=s depression was substantially aggravated by the stress of his contentious relationship with the employer.  (Finding 16.)  The employee argues his depression arose from harassment and abusive treatment by the employer=s managers, including disagreements relating to his work assignments and job performance, and from the impact of his poor health on his family activities, and that these disputes and difficulties were a direct consequence of his significant low back condition and pain.

 

In essence, the employee contends that as a result of his personal injury, a contentious relationship developed with the employer and the stress of his relationship with the employer aggravated his psychological condition.  Although there is arguably a kind of chain of causation here, conditions resulting from such indirect causal relationships are generally not compensable as workers= compensation injuries.  See e.g., Koenig v. Northern Insulation Co., 358 N.W.2d 644, 37 W.C.D. 266 (Minn. 1984); Hendrickson v. George Madsen Constr. Co., 281 N.W.2d 672, 3l W.C.D. 608 (Minn. l979);  Melartin v. Mavo Sys., Inc., No. WC04-328 (W.C.C.A. May 5, 2005).

 

The employee further argues, however, that the compensation judge ignored the records submitted from the employee=s treating psychiatrist, Dr. Sathoff, evidencing a direct causal relationship between his depression and chronic back pain, and unreasonably relied on the reports of Dr. Kashtan, whose opinions, the employee asserts, are not credible.

 

The employee began treating with Dr. Sathoff on October 17, 1995, at which time he was diagnosed with adult attention deficit disorder (ADD) and dysthemia Awhich is long-term lingering depression.@ (Ex. B, 6/13/01 report.)^[7]  The employee continued to treat periodically with Dr. Sathoff through the date of hearing.  The doctor observed the employee had considerable difficulties with his back and believed he was not being treated fairly at work.  Dr. Sathoff stated that situational factors, including continuing conflicts at work, workers= compensation and litigation-related issues, and worsening back pain adversely affected the employee=s mood.

 

Dr. Kashtan, who evaluated the employee at the request of the self-insured employer,  observed the employee had a long-term history of a mood disorder and ADD.  The doctor concluded the employee=s psychological symptoms were aggravated by his feelings of being misunderstood and mistreated by the employer, and opined the employee=s 1997 work injuries were not a substantial contributing factor in his psychiatric diagnoses.  Dr. Kashtan maintained the employee=s episodes of depression seemed more related to the employee=s struggles with the employer than a direct result of his back injuries.  The compensation judge accepted Dr. Kashtan=s opinion.

 

This finding is based on the compensation judge=s resolution of a conflict in medical expert testimony.  It is not the role of this court to reassess credibility or reweigh the evidence, but solely to assess whether there is sufficient evidence in the record to support the judge=s decision.  Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  A trier of fact is not required to accept the opinions of the employee=s treating doctor over the opinion of the employer=s medical examiner.  So long as there is adequate foundation for the medical opinion accepted by the judge, this court may not reverse the judge=s decision.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  While the record in this case might be subject to differing interpretations, we cannot say that Dr. Kashtan=s opinion lacked foundation or that the judge=s acceptance of Dr. Kashtan=s opinion was clearly erroneous.  We must, therefore, affirm.

 

3.  Temporary Total Benefits from November 12, 2000 to February 1, 2001

 

The employee contends the evidence supports his claim for temporary total disability benefits from November 12, 2000, to February 1, 2001,^[8] as a result of both his physical and psychological injuries.  The compensation judge found the employee=s inability to work during this period was a substantial result of the employee=s psychological condition and not his back condition.  We affirm.

 

The employee was seen by Dr. Rath on October 26, 2000, who diagnosed a mild exacerbation of back pain and referred the employee for physical therapy.  The employee returned to Dr. Rath on November 13, 2000.  At that time, Dr. Rath noted the employee=s back symptoms had improved with physical therapy, and his notes reflect no significant findings on examination.  Dr. Rath also noted the employee reported depressed mood with numerous contentious issues at work regarding work status and advancement that appeared irreconcilable at that point.  The doctor stated the employee=s current symptoms were aggravated by the job situation and recommended a medical leave for his depression.  In a progress report dated January 5, 2001, the employee=s QRC noted the employee was off work due to depression and stress issues.  There is substantial evidence in the record to support the judge=s finding the employee=s time off work from November 13, 2000, to February 1, 2000, was a substantial result of the employee=s psychological condition and not his 1989 or 1997 low back injuries.

 

The employee also argues his back and leg pain and numbness significantly worsened following the October 24, 2000, incident, and that injury was a contributing factor in his inability to work during the period at issue.  In a Findings and Order issued March 10, 2003, a compensation judge found the employee=s injury on October 24, 2000, was a minor, temporary exacerbation of his pre-existing low back condition that resolved within a few days.  This court affirmed the judge=s finding in a decision issued September 29, 2003.  This finding is final and binding and may not be reconsidered or redetermined on appeal.

 

As we have affirmed the compensation judge=s finding that the employee=s psychological condition was not causally related to his 1989 and 1997 low back injuries, and as we affirm the employee=s medical leave from November 13, 2000 through February 1, 2001, was due to the employee=s non-compensable psychological condition, the compensation judge properly denied temporary total disability benefits for this time period.

 

3.  Cooperation with Rehabilitation Plan

 

The employee contends the compensation judge erred in allowing discontinuance of wage loss benefits, effective June 13, 2003, on the basis of a failure to cooperate with job search.  We conclude there is adequate support for the compensation judge=s finding.

 

The employee was placed on an involuntary leave of absence on April 3, 2003.  Rehabilitation services were resumed along with payment of temporary total disability benefits.  A Job Placement Plan and Agreement (JPPA) was signed by the employee and by the job placement vendor on April 22, 2003, and a job search was initiated.  On June 16, 2003, the self-insured employer served a NOID seeking discontinuance of temporary total benefits effective June 12, 2003, on the ground the employee failed to cooperate with job search, specifically, that the employee failed to comply with the job search requirements set forth in the JPPA and failed to make or document reasonable job search efforts.

 

The JPPA entered into on April 22, 2003, required the employee to perform a full-time job search, five days a week, to follow-up on job leads within 24 hours, and submit job search logs on a weekly basis to the placement specialist.  At the hearing, the job placement specialist testified the employee did not comply with the JPPA.  She stated the employee=s job logs were not received on a weekly basis, that he failed to timely follow through with job leads provided to him, and that job contacts listed in the job logs showed insufficient job search activity.  The employee agrees he did not submit job logs weekly, but asserts he was told by the placement vendor that she submitted monthly reports to the workers= compensation claims administrator, and he did send his job logs to her by the fifth of the month.  He further argues he was guilty of no more than poor record-keeping, which should not be a ground for discontinuance of benefits.

 

Minn. Stat. ' 176.102, subd. 13, provides that A[a]ll benefits payable under chapter 176 may . . . be discontinued . . . for any time during which the employee . . . does not make a good faith effort to participate in a rehabilitation plan.@  The testimony and exhibits submitted at the hearing are adequate to support the judge=s decision approving the discontinuance of benefits, and we must, therefore, affirm.

 

A second NOID was served on June 17, 2003, stating temporary total disability benefits would be discontinued effective July 28, 2003, on the ground the employee would then be 90 days post-MMI.  The employee argues his condition improved during the summer of 2003 after he started an aggressive swimming program, and that his back then significantly worsened while working for Bumper to Bumper, Taylor Corporation, and MidAmerica Books.

 

AMaximum medical improvement@ means the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated.  Minn. Stat. ' 176.011, subd. 25.  The employee=s orthopedic surgeon, Dr. Matson, opined the employee had reached MMI from his back injuries by April 16, 2003.  There was no medical evidence to the contrary.  The compensation judge=s findings on MMI are, accordingly, affirmed.

 

4.  Permanent Total Disability

 

The employee asserts he is entitled to permanent total disability benefits from January 21, 2004, to the present and continuing.  We disagree.  An employee is permanently and totally disabled if the employee=s work injury permanently incapacitates the employee from working at an occupation which brings the employee an income.  Minn. Stat. ' 176.101, subd. 5(2).  The employee began working part-time for Bumper to Bumper on November 17, 2003.  The self-insured employer paid temporary partial disability benefits based on the employee=s wages through January 17, 2004, when the employee was laid off by his new employer for lack of work.  The employee again looked for work, and on July 26, 2004, returned to work, part-time, for Taylor Industries.  At the time of the hearing the employee was working two part-time jobs, having obtained a second part-time job with Mid-America Book Company.  The employee testified he was working about 40 hours a week.  The self-insured employer again paid temporary partial disability benefits based on the employee=s earnings.

 

While the employee has a significant disability as a result of his 1989 and 1997 work injuries, he clearly was not totally incapacitated from working or earning wages at the time the hearing was held.  The compensation judge properly found, therefore, that the employee was not permanently and totally disabled as of  the date of the hearing.

 

5.  Functional Capacities/Job Suitability

 

The employee contends the compensation judge incorrectly found the March 20, 2003, functional capacities evaluation (FCE) accurately represented the employee=s physical capabilities.  The employee asserts he suffered intense back pain following the FCE, and it was not, therefore, an accurate representation of his true capabilities and limitations.

 

The March 2003 FCE was performed at the request of the employee=s treating surgeon, Dr. Matson.  The therapist performing the evaluation concluded the test was valid. The therapist noted the pain/behavioral profile showed the employee fell into a high pain level category, and that the employee=s pain rating escalated appropriately with activities that stressed his back and lower extremity musculature.  The therapist additionally noted the employee stopped by the clinic the day after the test and reported he was very sore following the testing procedure.  The therapist stated the activity values outlined in the test report and the R-33 took this into consideration.  The employee was seen by Dr. Matson on April 16, 2003, who stated he agreed with the FCE report and he felt the FCE represented a reasonable appraisal of the employee=s functional abilities.  Based on the evidence of record, the compensation judge reasonably found the March 20, 2003, FCE accurately represented the employee=s physical capabilities through the date of hearing.  We affirm.

 

The employee also contends the compensation judge erred in concluding Dr. Matson found survey work suitable for the employee and that survey work was included with highway technician duties.  The employee argues that Dr. Matson stated that bending, stooping, twisting and walking on slippery or uneven ground should be avoided, and that there was work the employee could have been assigned to other than surveys which hurt his back.

 

On May 4, 1998, Dr. Matson completed a Report of Workability.  In the report Dr. Matson noted the district safety administrator, Mark Moehlenbrock, had reviewed the physical requirements for the maintenance worker and highway technician positions with him.  Dr. Matson added to the report, AI have reviewed the HT description and it has suitable work demands for him.@  The attached written Highway Technician description contains the handwritten comment, AThis is satisfactory for his restrictions.@  The job duties described included surveys layout and staking, and the physical abilities required included standing and walking on hillsides and uneven surfaces and terrain.  (Ex. 8.)

 

On January 3, 2000, Dr. Matson completed a Report of Work Ability with Atemporary restrictions for a month@ and then a Areturn to his permanent restrictions although with the caveat that he should still refrain from walking on uneven or deep snow surfaces.@ (Ex. E.)  On March 13, 2000, the employer requested an updated Report of Workability from Dr. Matson, enclosing a copy of the highway technician job description.  The doctor indicated the employee=s restrictions included a lifting restriction of 50 pounds and limited pushing and pulling to 100 pounds with the use of proper body mechanics.  Dr. Matson stated, AI believe these specific restrictions are the crux of the issue for the employee,@ and there was A[n]o change in permanent restrictions noted previously.@  (Ex. 9.)

 

While Dr. Matson=s restrictions for this period of time may be open to differing interpretations, the compensation judge=s determination that Dr. Matson found highway technician work suitable for the employee, and that the job included survey work requiring some standing and walking on uneven surfaces, is supported by the evidence and is not clearly erroneous.

 

6.  Permanent Partial Disability

 

The employee argues he is entitled to an additional four percent permanent partial disability based on the opinion of Dr. Matson.  The parties stipulated that permanent partial disability benefits previously were closed out to the extent of 22 percent of the body as a whole relative to the employee=s 1989 and 1997 dates of injury, pursuant to the 1999 to-date stipulation for settlement.  After the employee=s third surgery on June 6, 2002, in a report dated April 29, 2003, Dr. Matson provided a total permanency rating of 32 percent, pursuant to Minn. R. 5223.0390, subp. 4.D.(1)(3) and (4).  On June 15, 2004, Dr. Engasser provided a total permanency rating of 28 percent, based on Minn. R. 5223.0070, subp. 1.B.(2)(a) and (3) and Minn. R. 5223.0039, subp. 4.D.(1) and (2).   The parties further stipulated the employer paid the additional six percent permanency rated by Dr. Engasser.  The compensation judge accepted Dr. Engasser=s 28 percent rating, finding there had been no underpayment or overpayment of permanent partial disability benefits.

 

While Dr. Matson did not explain his rating, it appears he incorrectly rated nine percent twice for the same disability category, a rating not permitted under the permanent disability schedules.  See Minn. R. 5223.0390, subp. 1, and subp. 4.D.^[9]  We, therefore, affirm the compensation judge=s permanent partial disability rating of 28 percent.^[10]

 

7.  Reimbursement for Hot Tub

 

The employee argues the compensation judge should have awarded reimbursement for the purchase of a hot tub.  He purchased a therapeutic hot tub in about 1999, and testified the hot tub helps relax and warm the muscles allowing him to stretch and do his back exercises with better results, which helps relieve his pain.  (T. 45, 73.)   The employee points to the report of Dr. Sava supporting his request, and argues that a hot bath or shower is not comparable.

 

Under the treatment parameters,  a hot tub is not indicated for home use for low back conditions.  Minn. R. 5221.6200, subp. 8.D.(1).  Although Dr. Sava stated the hot tub appeared to be the only modality that gave the employee any relief, Dr. Engasser opined there was no medical reason for a hot tub, stating there was no medical literature to support the conclusion that a hot tub provided any more benefit than a hot shower or similar modalities.  The compensation judge found the employee failed to establish grounds for departure from the treatment parameters.  There is substantial evidence to support this finding, and it is affirmed.

 

8.  Exploration of Retraining

 

The employee contends the compensation judge improperly denied his request for exploration of retraining.  He argues he needs retraining to obtain employment with a wage even somewhat close to the wages he was making at MnDOT.  While that may well be true, the employee also acknowledged, in his brief, that his current priority is dealing with his back problems, and he probably could not sit through classes or concentrate to read due to his chronic pain.  Given these circumstances, the compensation judge reasonably concluded that exploration of retraining was not a reasonable direction for rehabilitation at the present time.  We affirm.

 

9.  Additional Wage Loss Benefits

 

The employee asserts he is entitled to benefits for personal and unpaid time taken for physical therapy and other workers= compensation issues.  He states that since the fall of 1999, he used a large quantity of personal and unpaid time for workers= compensation matters and should be reimbursed for this time.  It is not clear, however, for what periods of time the employee is claiming reimbursement, the type of benefits sought or the amount claimed due.  There is no evidence in the record from which any amount could be ascertained or calculated.  The employee failed to meet his burden of proof and the claim was properly denied.

 

10.  Withholding of Attorney Fees

 

Finally, the employee objects to the compensation judge=s order directing the employer to withhold 25/20 percent of the benefits payable to the employee^[11] pending a resolution of an attorney lien filed by Martin Montilino in this matter.  The employee initially consulted with attorney Montilino regarding his claim of a new injury on October 24, 2000.  Mr. Montilino filed a Notice of Withdrawal of Counsel dated January 20, 2003, following a difference of opinion over the direction and scope of his representation of the employee.  The attorney then filed a Notice of Attorney Lien on February 19, 2003, claiming fees of $4,530.00 for representation of the employee from August 17, 2001, through December 20, 2002.  The services claimed included representation on several NOIDs as well as the claim for benefits related to the October 24, 2000, injury.  There has, however, been no hearing or determination on the attorney fees lien as yet.  The compensation judge properly ordered withholding of attorney fees under these circumstances.  Any determination as to whether attorney Montilino is entitled to fees in this case would be premature.^[12]

 

11.  Other issues

 

The employee included with his notice of appeal and with his brief copies of, and references to, documents not admitted into evidence at the hearing and documents relating to events that occurred after the September 2, 2004, hearing.  This court may not consider evidence not submitted to the compensation judge, nor may we consider facts and events that were not in existence or were not at issue before the compensation judge.  See Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986); Glasgow v. Franciscan Health Cmty, No. WC04-334 (W.C.C.A. May 2, 2005).  We, therefore, have not considered any Anew evidence@ submitted by the employee in determining this appeal.

 

The employee also included a number of Amotions@ in his brief, (1) requesting this court to order a neutral investigation of certain doctors and the employer=s practices under Minn. Stat. ' 176.391; (2) requesting an investigation of alleged retaliatory discharge by the employer  under Minn. Stat. ' 176.82; (3) alleging abusive treatment in violation of the Minnesota Human Rights Act, the Americans with Disabilities Act and the Civil Rights Act; (4) seeking an order appointing a representative from the Department of Labor and Industry to advise him; and (5) requesting an additional award as a penalty for frivolously denied, delayed or discontinued benefits under Minn. Stat. ' 176.225.  This court has appellate jurisdiction only, and has no authority to act on the employee=s motions, other than the request for penalties.  As we have affirmed the compensation judge=s findings and order, we decline to award penalties in this case.