MARC L. TOURVILLE, Employee, v. SITE WORKS DESIGN, INC., and GENERAL CAS. CO., Employer-Insurer/Appellants, and MN DEP=T OF EMPLOYMENT & ECON. DEV., Intevenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 23, 2005

 

No. WC05-223

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s finding that due to his restrictions, the employee was incapable of substantial gainful employment from February 17, 2003 through January 28, 2004, and therefore was not disqualified from receiving temporary total disability benefits on the grounds that he failed to make a reasonable and diligent job search.

 

PENALTIES - SUBSTANTIAL EVIDENCE.  Where the employee=s surgery was performed on January 28, 2004, and temporary total disability benefits were not paid until April 9, 2004, substantial evidence supports the compensation judge=s finding that the employer and insurer neglected to timely pay compensation and the corresponding penalty award.

 

Affirmed.

 

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

Compensation Judge: Janice M. Culnane

 

Attorneys: Timothy J. McCoy, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent.  Richard W. Schmidt and Brad R. Kolling, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal the compensation judge=s award of temporary total disability benefits, arguing that the employee did not perform a diligent job search, and also the award of a penalty for neglecting to pay temporary total disability payments due after the employee=s surgery.  We affirm.

 

BACKGROUND

 

On October 17, 2002, Marc L. Tourville, the employee, was injured while working on a construction remodeling project for Site Works Design, Inc., the employer, which was insured for workers= compensation liability by General Casualty Company, the insurer.  The employee had worked for Site Works since 1995 or 1996, performing various tasks related to landscaping and construction, including carpentry, sidewalk and patio work, installation of swimming pools, construction of pool houses, planting flowers and laying sod.  He typically worked during the construction season each year and collected unemployment compensation before being called back to work the following mid-March to mid-April.  On October 17, 2002, as the employee stood on the ground below a second story deck being built by co-workers, he bent over to grab a spigot with his left hand, and a double 2 x 6 post began to fall towards him.  He jerked out of the way to avoid getting hit, but the post struck his left hand.  The employee=s left hand was cut, and he felt numbness in his right thumb, index and middle fingers.  Although his left hand injury later resolved, the tingling in his right hand worsened, and he eventually developed neck and right shoulder pain, with tingling and discomfort radiating down the back of his right arm.  The employee initially treated with his family physician for his left hand injury and right arm neuropathy, and was referred to Multicare Associates.  The employee worked for the rest of the season.  After a seasonal layoff, the employee began to collect unemployment compensation.

 

On November 27, 2002, at the referral of his physician=s assistant, the employee consulted Dr. Terry Domino, a specialist in occupational health, reporting numbness in his right hand and stiffness and lack of strength in his neck.  Dr. Domino diagnosed acute right cervical strain with radiculopathy down the right arm, consistent with a right radicular herniated disk syndrome.  Dr. Domino recommended an MRI scan on an emergent basis to evaluate the employee=s cervical spine.  Dr.  Domino recommended restrictions of no lifting more than 50 pounds overhead and no bending of his neck forward or upward.  The MRI scan performed on January 20, 2003, showed a central disc herniation at C6-7 with moderate central stenosis and severe bilateral stenosis, a small left central disc herniation at C5-6 with some impingement of the left C6 nerve root and a small right-sided disc herniation at C4-5 with mild impingement of the right C5 nerve root.  The MRI was interpreted as showing multilevel degenerative disc disease with multiple central disc protrusions and bony stenosis superimposed on a congenitally small spinal canal.  In February 2003, Dr. Domino referred the employee to Dr. Walter Galicich, a neurosurgeon, who recommended cervical spine surgery, an anterior cervical discectomy and fusion of C5-6 and C6-7.  The employee chose to seek additional conservative treatment, and underwent additional physical therapy; he also continued to consult Dr. Domino.

 

The employee was not called back to work by the employer in the spring of 2003, nor was he offered any light-duty work.  By June 2003, the employee=s work restrictions did not include any lifting restrictions but still restricted the employee from any forward or upward bending at the neck.  The employee collected unemployment benefits from February 22, 2003, through August 23, 2003.  He did not look for any other work nor was he provided with any rehabilitation assistance during this time.

 

On May 29, 2003, the employee filed a medical request for approval of an anterior cervical discectomy and fusion of C5-6 and C6-7 as recommended by Dr. Galicich.  Although the employer and insurer had admitted primary liability for the employee=s left hand injury, they denied liability for a cervical spine injury.  In their medical response, they alleged that the proposed surgery was not reasonable and necessary, and requested an independent medical evaluation.  A hearing was set for August 6, 2003.

 

Before that hearing, on July 31, 2003, the employee underwent an evaluation with Dr. Joel Gedan, neurologist, at the employer and insurer=s request.  At that time, the employee reported persistent neck and right shoulder pain, with symptoms made worse with extension of his neck, overhead work and rotation towards his right side.  Dr. Gedan opined that the employee had sustained an injury to his cervical spine as a result of his work injury on October 17, 2002, and outlined work restrictions related to the employee=s cervical spine.  He concluded that nonsurgical treatment could be considered to alleviate the employee=s pain, including nonsteroidal anti-inflammatory medications, light cervical traction, or a selective C6 nerve root epidural steroid injection.  Dr. Gedan advised that if the employee=s symptoms persisted, then the proposed two-level cervical fusion surgery would be reasonable, and also stated that he would consider the employee=s need for surgery to be causally related to his work injury.  Dr. Gedan also advised that if the employee underwent surgery, Ahe would probably be able to return to work in the construction trade after approximately 6 to 12 months if he has a good result,@ and could anticipate permanent restrictions including a 50-pound lifting limit, no repetitive neck flexion, extension, or prolonged overhead work.

 

On August 6, 2003, the employer and insurer withdrew their objection to the proposed surgery, pursuant to Dr. Gedan=s causation opinion outlined in his report, and advised that they would agree to pay for the requested surgery.

 

The employee attempted additional conservative treatment of his neck injury and returned to physical therapy, which did not relieve his symptoms.  On December 11, 2003, the employee consulted with Dr. P. Thienprasit, who recommended cervical fusion surgery at C5 and C6-7 levels.  The employee received prior approval from the insurer for the surgery, which was performed by Dr. Thienprasit on January 28, 2004.  He underwent physical therapy for his neck post-surgery.

 

On March 4, 2004, the employee filed a claim petition for temporary total disability benefits from and after February 17, 2003.  The employer and insurer denied liability for the claimed benefits.  On April 9, 2004, the employer and insurer issued a lump sum payment for temporary total disability benefits from January 28, 2004, through April 2, 2004, and started paying weekly benefits. 

 

On June 29, 2004, QRC Larry Mansfield conducted a rehabilitation consultation, and concluded that the employee was qualified for rehabilitation assistance.  He worked with the employee since that time, initially providing medical management and later assisting him with job search activities.  By February 2005, the employee completed a course of physical therapy and was released to return to work.  According to the therapist=s Report of Work Ability, the employee=s permanent work restrictions included no lifting over 45-50 pounds, avoidance of work requiring static or partially flexed neck posture, and avoidance of prolonged work with arms over shoulder level.  By May 2005, the employee  obtained a job with a different employer.

 

A hearing was held on May 26, 2005, to address the employee=s claims for temporary total disability benefits and penalties claimed due to a delay in payment of benefits.  Also at issue at the hearing was an intervention claim brought by the Minnesota Department of Employment & Economic Development, for reimbursement of unemployment compensation benefits.  In her findings and order served and filed June 14, 2005, the compensation judge found that the employee was entitled to temporary total disability benefits from February 17, 2003, through January 24, 2004, subject to the statutory limitations,^[1] and that the employer and insurer had neglected to timely pay temporary total disability benefits after the January 28, 2004, surgery.  The compensation judge awarded a 30% penalty pursuant to Minn. Stat. ' 176.225, subd. 1(c), in the amount of $1,268.94.  The compensation judge denied the employee=s claim for a penalty based on a delay in payment of benefits for the time period between February 17, 2003, through January 28, 2004, concluding that a genuine dispute existed during that time as to whether the employee was entitled to those benefits.

 

The employer and insurer appeal from the award of temporary total disability benefits and the award of a penalty for delayed payment of benefits after the employee=s surgery on January 28, 2004.

 

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.  Substantial evidence supports 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  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.@  Id.

 

DECISION

 

Temporary Total Disability

 

The compensation judge found that due to his restrictions, the employee was incapable of substantial gainful employment from February 17, 2003 through January 28, 2004, and awarded temporary total disability benefits for that period of time.  The employer and insurer argue that the compensation judge erred by awarding temporary total disability benefits, claiming that the employee did not conduct a reasonable and diligent job search during that time.  A[A] person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an unsubstantial income.@  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  There is no statutory requirement that an employee affirmatively seek and be denied employment as a prerequisite to a finding of total disability.  Where there is evidence that, because of the employee=s age, poor health and lack of training, the employee is completely unemployable and would never be able to locate a job, the employee need not present evidence of a job search.  See, e.g., Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978) (and cases cited therein).

 

Employees who are capable of working must generally make a reasonably diligent search for work in order to establish entitlement to benefits for total disability.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  The reasonableness of a job search, however, is dependent on all of the facts and circumstances in the case, id. at 734, 40 W.C.D. at 956, and the determination of whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).  In addition, the reasonableness and diligence of the employee's work search is viewed within the context of the scope of rehabilitation assistance which has been provided by the employer and insurer.  Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (citation omitted), summarily aff'd (Minn. Nov. 27, 1985); see also Taylor v. George A. Hormel & Co., 42 W.C.D. 633, 639 (W.C.C.A. 1989).

 

As outlined in the compensation judge=s memorandum, Dr. Domino originally assigned lifting restrictions and also prohibited the employee from bending his neck forward or upward.  Although Dr. Domino removed the lifting restrictions as of December 1, 2003, he continued other bending restrictions.  Following his examination of the employee on July 31, 2003, Dr. Gedan assigned lifting restrictions of 50 pounds and also recommended against prolonged flexion and extension, overhead work, or work with his neck in an extended, flexed, or bent position.  Based on those medical opinions, the compensation judge concluded that,

 

[t]he restrictions of Drs. Gedan and Domino are viewed as restrictions which essentially create an inability to work and a temporary total disability status.  This is especially true considering this employee has spent nearly his entire life doing construction work and the restrictions, when coupled with the complaints of pain and symptomatology the employee has with movement, result in the employee being unable to perform employment activities since he is unable to bend his neck forward or look upward.

(Memo, pp. 5-6.)

 

The employer could not provide light-duty work within the employee=s restrictions, but the employee was not provided rehabilitation assistance during the time period at issue.  The employee acknowledges that although he was not told that he could not perform any work, he was aware that he could not perform his usual work.  At the time of the hearing, the employee was 52 years old and had performed construction work for most of his career.  The employee=s QRC testified that the employee was not capable of performing sustained gainful employment from February 17, 2003, through January 28, 2004, because of the restrictions on his neck.  During that period of time, the employee consulted three specialists for surgical opinions, and all three recommended surgery.  The employee continued to receive physical therapy to try to avoid surgery.  The employee also testified that before surgery, he often needed to rest because of his neck symptoms.

 

Considering the nature of the employee=s job and the extent of his work restrictions before surgery, and in view of the medical records in evidence as well as the QRC=s testimony, the compensation judge could reasonably conclude that the employee was not capable of substantial gainful employment from February 17, 2003 through January 28, 2004, Aas a result of his work-related injury and the resulting pain, symptomatology, and necessary restrictions.@  (Memo., p. 4.)  Substantial evidence supports the compensation judge=s conclusion that, under these circumstances, the employee was not disqualified from receiving temporary total disability benefits on the grounds that he failed to make a reasonable and diligent job search.  Accordingly, we affirm the award of temporary total disability benefits.

 

Penalty

 

The employer and insurer also appeal from the award of penalties awarded for a delay in the payment of benefits following the employee=s surgery on January 28, 2004.  On April 9, 2004, the employer and insurer paid the employee $3,810.64, which represented temporary total disability benefits owed since his surgery, and thereafter paid ongoing temporary total disability benefits.  The compensation judge awarded the employee a 30% penalty under Minn. Stat. ' 176.225, subd. 1(c), for the employer and insurer=s neglect to pay the employee=s temporary total disability benefits until April 9, 2004.  Minn. Stat. ' 176.225, subd. 1, provides for a penalty for delayed payment, in addition to the total amount of compensation awarded, of up to 30 percent of that total amount, where an employer or insurer has Aneglected or refused to pay compensation.@^[2]  The issue before us is whether the compensation judge erred by concluding that the employer and insurer=s delay in payment of temporary total disability benefits until April 9, 2004, gave rise to a penalty claim.

 

The employee=s fusion surgery was performed on January 28, 2004; that surgery had been recommended by Drs. Galicich, Dr. Thienprasit, and the independent medical examiner, Dr. Joel Gedan.  The employee remained off work post-surgery, but the employer and insurer did not pay temporary total disability benefits until April 9, 2004, which was beyond the time limit for payment of compensation benefits as required by Minn. Stat. ' 176.221, subd. 1.  The employer and insurer=s attorney presented arguments of extenuating circumstances surrounding the delay in payment of benefits, including that the employer and insurer were not aware of the date of the surgery until February 9, 2004, when the employee=s attorney submitted medical bills for the surgery, and that payment was further delayed due to a dispute over the employee=s weekly wage.  However, the compensation judge concluded that any internal reasons for the delay due to payment processing did not excuse neglect in payment.  Whether a penalty is appropriate under Minn. Stat. ' 176.225, Anormally rests within the sound discretion of the compensation judge.@  Maxfield v. Stremel Mfg. Co., slip op. at 5, 7 (W.C.C.A. Jan. 6, 1999).  Substantial evidence supports the compensation judge=s finding that the employer and insurer neglected to timely pay compensation, and we therefore affirm the award of penalties calculated on the amount of delayed benefits owed between January 28 and April 9, 2004.  See Zweig v. Pope Douglas Solid Waste, 65 W.C.D. 553 (W.C.C.A. 2005), aff=d (Minn. Oct. 13, 2005).