ALEXANDER B. SLOAN, Employee, v. UNIVERSITY OF MINN., SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT. SERVS., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 28, 2006

 

No. WC05-267

 

HEADNOTES

 

CAUSATION - PERMANENT AGGRAVATION.  Substantial evidence, including expert medical opinion, supports the compensation judge=s finding the employee=s October 8, 2001, work injury resulted in a permanent aggravation of his pre-existing low back condition.

 

TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY; WAGES - IMPUTED WAGE.  Substantial evidence supports the compensation judge=s determination that the employee had an earning capacity of $16.00 per hour for a 40-hour week in November 2002, and the judge=s award of temporary partial disability benefits based on an imputed wage of $ 640.00 a week.

 

Affirmed.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: Eric R. Lee, Milavetz, Gallop & Milavetz, Coon Rapids, MN, for the Respondent.  Peter J. Pustorino and Jeffrey L. Lindquist, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The University of Minnesota appeals the compensation judge=s finding that the employee=s personal injury resulted in physical restrictions and the judge=s findings regarding the employee=s earning capacity.  We affirm.

 

BACKGROUND

 

Alexander B. Sloan, the employee, began working for the University of Minnesota, the self-insured employer, as a campus police officer in May 1981.  On October 8, 2001, the employee testified he responded to a report of a suspicious piece of furniture, a large television set, sitting on the pavement in front of the main entrance to the computer science/electrical engineering building.  The employee decided to remove the television set which he stated weighed approximately 120 pounds.  When he picked up the television set, the employee testified he heard and felt a pop in his low back.  The employer admitted liability for a personal injury, but contended the injury was a temporary aggravation of a pre-existing condition.  The employee=s weekly wage on October 8, 2001, was $1,347.97.

 

The employee had an extensive history of low back problems prior to October 8, 2001.  In 1965, at the age of ten, the employee fell about ten feet from a tree landing on his buttocks and coccyx.  The employee saw a doctor on one occasion for this injury.  In 1973, the employee experienced low back pain after wrestling with a friend.  In October 1977, the employee saw a doctor  after moving an air conditioner and was diagnosed with mechanical low back pain.

 

In January 1987, Dr. James Westby diagnosed low back pain with some radiculopathy and prescribed physical therapy.  The doctor stated the employee could participate in EMT training provided he changed positions when possible.  The employee gave the physical therapist a history of low back problems off and on since age 18 after wrestling with a friend.  A CT scan in February 1987, showed a small herniated disc at L5-S1 displacing and compressing the left S1 nerve root and left subarticular recess stenosis at L4-5 secondary to a bulging disc compressing the left L5 nerve root.  Physical therapy was reinstituted in August 1987, when the employee reported a flare up of his symptoms for no apparent reason.

 

The employee was hospitalized in September 1988, for an acute flare up of his low back condition following repeated lifting of a photography bag and climbing in and out of a car at work.  A CT scan was unchanged from the 1987 scan.  Dr. William Call examined the employee in the hospital and noted lumbar spasm without positive motor, sensory or reflex findings.  The doctor diagnosed low back syndrome, rule out symptomatic L5-S1 disc.  In December 1988, Dr. Westby diagnosed a resolved lower back condition, stated the employee had reached maximum medical improvement and rated a nine percent whole body disability.^[1]

 

In October 1990, the employee saw Dr. James McGovern complaining of low back pain following some lifting.  The doctor diagnosed recurrent lumbar disc syndrome and prescribed physical therapy.  The employee saw Dr. Ward in September 1991, complaining of increasing back pain with left-sided sciatica over the prior several days.  The doctor concluded the employee=s back pain was consistent with his prior documented herniated disc.  The employee was examined by Dr. Lester Carlander, an orthopedic surgeon, in October, 1991.  He gave a history of low back pain since age 18, following a wrestling incident which had bothered him off and on every couple of years since then but more persistently the last few years.  The doctor diagnosed degenerative disc disease with a possible small herniation, lumbar radiculitis and a leg length discrepancy.  Dr. Carlander discussed the possibility of surgery with the employee and they agreed to treat conservatively.  In May 1994, the employee saw Dr. Stein complaining of low back pain radiating down his left leg.  Dr. Stein diagnosed mechanical low back pain.  In March 1995, the employee saw Dr. Robert Goblirsch with complaints of intermittent back spasms over the prior two weeks.  The employee again saw Dr. Goblirsch in October 1996 for chronic low back syndrome.

 

On October 8, 2001, the day of the injury, the employee sought treatment from Dr. Michael Broderdorf, complaining of low back pain without radiculopathy following an incident lifting a television set.  On examination, the doctor found no sensory or motor deficits and diagnosed a low back strain.  On October 18, 2001, the employee saw Dr. James Anderson complaining of low back and right leg pain.  The diagnosis was lumbar strain and right sciatica.  The doctor prescribed anti-inflammatory medication and physical therapy and restricted the employee=s work activities.  An MRI scan in December 2001 showed an L4-5 disc herniation and degeneration with severe right L5 and moderate left L5 nerve root impingement.  The scan also showed a small L5-S1 herniation.

 

The employee was then seen by Dr. Paul Hartleben on December 20, 2001, on referral from Dr. Anderson.  The employee complained of low back pain following a lifting incident on October 8, 2001, with bilateral leg pain, right worse than left, which had since resolved.  The doctor diagnosed a work-related L4-5 disc herniation with resolving radiculopathy.  On examination, the doctor found minimal or essentially no findings of any significant radiculopathy and recommended an aggressive reconditioning program.  On February 22, 2002, after completion of the rehabilitation program, the employee continued to complain of low back pain with occasional radiation down his left leg.  Dr. Hartelben=s neurologic examination showed normal knee and ankle reflexes with normal focal, motor, and sensory findings.  The doctor concluded the L4-5 disc herniation had initially caused some L5 radiculopathy, but was no longer generating any significant sciatica, and provided no indication for surgery.

 

The employee returned to Dr. Anderson on March 5, 2002.  His diagnosis was lumbar disc herniation at L4-5 with nerve root impingement and residual left-sided symptoms.  Dr. Anderson opined the employee had reached maximum medical improvement, rated a seven percent permanent partial disability based on the L4-5 herniated disc, and stated the employee could work, subject to restrictions.  In August 2002, the employee continued to complain of low back pain with left leg symptoms.  Dr. Anderson diagnosed a herniated disc at L4-5 with left-sided pain.  The doctor stated the employee could work subject to a 15 pound frequent lifting restriction and a 30 pound limit for occasional lifting together with other limitations documented in a functional capacity assessment performed at Minnesota Occupational Rehabilitation.

 

By report dated November 5, 2002, Dr. Anderson stated his diagnosis was L4-5 herniated disc with left-sided sciatic-type symptoms and degenerative changes at L5-S1.  The doctor noted that initially, the employee=s symptoms were more prominent on the right, but through the course of treatment, they again localized to the left Aa picture quite similar to what he experienced with his previous injury.@  The doctor stated the employee had back problems dating back as far as 1973 with subsequent flare-ups.  AThese were all documented as being, for the most part, left-sided symptoms.  I would identify each of these as a recurrence, and I think the lifting episode in his work situation at the University of Minnesota was also a recurrence of his left-sided low back pain precipitated by the fact that he had a disk problem and was kind of a setup for recurrence with heavy lifting and twisting situations.  However, since the scan in 2001 had not changed much from the earlier scan, I think that his recovery from this reoccurrence was about as good as you could expect from somebody who has a preexisting disk condition.@  (Ee Ex. B.)  Finally, Dr. Anderson opined the employee was not capable of returning to his preinjury job because of the occasional lifting requirements.

 

Dr. Paul Wicklund examined the employee on January 11, 2003, at the request of the employer.  Following a review of medical records and a physical examination, the doctor prepared a medical report.  In February 2003, the doctor reviewed some additional medical records and prepared a second report.  The doctor stated the employee had preexisting degenerative disc disease and disc bulging at L4-5 and a left-sided L5-S1 disc herniation.  Dr. Wicklund opined the personal injury of October 2001, was a temporary aggravation of that preexisting condition, and concluded the employee sustained no permanent disability as a result of that injury.

 

Dr. Mark Engasser examined the employee in January 2004 at the request of the employee.  The doctor diagnosed multiple-level degenerative disc disease with a right disc herniation at L4-5 and a left disc herniation at L5-S1.  The doctor opined the employee sustained a permanent injury to his low back on October 8, 2001, resulting in right-sided symptoms which were not present prior to that injury.  Dr. Engasser rated a nine percent whole body disability^[2], separate from the 1988 disability rating at L5-S1.  Dr. Engasser also placed lifting and carrying restrictions on the employee=s work activities.

 

Dr. Wicklund reexamined the employee in November 2004, and reviewed Dr. Engasser=s report.  The doctor diagnosed multiple-level degenerative disc disease and stated he found no objective evidence to conclude the employee had any additional permanent disability as a result of the October 2001 injury.  Dr. Wicklund concluded the employee needed no additional restrictions as the result of the October 2001 injury.

 

Following the October 8, 2001, personal injury, Dr. Anderson placed restrictions on the employee which prohibited him from returning to his regular job with the employer.  Patrick Wilder, a qualified rehabilitation consultant (QRC), evaluated the employee and prepared a rehabilitation plan with the goal of returning the employee to a different job with the employer.  Edward Miller was retained to provide job placement services.  Mr. Miller developed and provided to the employee a number of leads for jobs paying from $11.50 to $16.00 per hour, but the employee did not pursue any of the leads.  In April 2002, the employee accepted a computer sales job with Scimax which paid $8.00 an hour, plus commission.  Mr. Miller then placed further placement efforts on hold.  In July 2002, the employee began a job with the employer as a part-time police dispatcher that paid $18.04 per hour.  On August 14, 2002,  the employee=s job with the employer was terminated.  A new job placement plan and agreement was signed in October 2002, that provided the employee would continue working at Scimax and look for jobs in the area of video security, investigator, dispatcher and computer graphics.

 

The employee left his job with Scimax in December 2002 and began a job with Circle Pix.  Because his earnings on this job were low, the employee accepted a second job selling computers that paid $4.00 an hour plus commission.  The employee left Circle Pix in January 2003 and began a job as a real estate photographer, another job he obtained on his own.  By report dated January 22, 2003, Mr. Wilder stated that it was necessary to resume job placement to return the employee to a suitable job.  Apparently, Mr. Miller provided job leads to the employee which he again did not follow up.  The employee next obtained a job as a computer salesman for Micro Systems.  At the time of the hearing, the employee continued to work for Micro Systems, earning $400.00 to $500.00 per week.  Vocational rehabilitation was terminated in December 2003.

 

Ms. Jan Lowe, a qualified rehabilitation consultant, conducted an employability evaluation of the employee in July 2003.  Ms. Lowe reviewed certain medical records, obtained a educational and vocational history from the employee, performed vocational tests and conducted a labor market survey.  Ms. Lowe concluded the employee had transferrable skills for a number of positions including security dispatcher, investigator, security officer and account manager.  Ms. Lowe stated the higher paying jobs in these fields offered first year compensation from $28,000 to $35,000 a year which she stated reflected the employee=s earning capacity.  Ms. Lowe also opined the employee failed to conduct a reasonable or diligent search for employment.  In April 2005, Ms. Lowe conducted a second market survey of employment opportunities for the employee from September 2003 to the present.  Ms. Lowe identified specific jobs in the areas of public safety dispatcher, dispatcher, security and home security sales.  The jobs identified by Ms. Lowe paid  $10.50 an hour for an entry level security guard position, $13.00 to $16.00 an hour for a security supervisor, and up to $40,000 to $60,000 a year in commissions for home security sales.

 

The employee filed a claim seeking temporary partial and permanent partial disability benefits.  The self-insured employer denied liability contending the employee=s injury was temporary and contending any permanency pre-existed the employee=s personal injury.  Following a hearing, the compensation judge found the October 8, 2001, personal injury permanently aggravated the employee=s pre-existing condition resulting in a seven percent permanent partial disability.  The judge also ordered the employer to pay temporary partial disability benefits to the employee based upon an imputed wage of $640.00 per week.  Finally, the compensation judge concluded the employee did cooperate with rehabilitation efforts.  The self-insured employer appeals.

 

DECISION

 

1.  Permanent Injury

 

The self-insured employer argues the compensation judge=s finding that the October 8, 2001, personal injury resulted in a permanent condition is clearly erroneous and unsupported by substantial evidence.  Rather, the appellant asserts the overwhelming weight of the evidence establishes the employee=s ongoing low back problems are the result of a chronic pre-existing condition.  The appellant further argues the judge=s finding is rooted in the erroneous conclusion that the personal injury resulted in primarily right-sided symptoms which did not pre-exist the injury.  The finding of a personal injury, the appellant asserts, is also inconsistent with the judge=s finding that the employee did not have objective radicular or neurological findings on clinical examination of his legs.  Finally, the appellant asserts the compensation judge erroneously attached significance to the fact that the employee had no formal written restrictions on his physical activities prior to his personal injury.  For these reasons, the appellant asks this court to reverse the finding that the employee sustained a permanent injury and deny the claims for workers= compensation benefits.

 

There is no question the employee had a significant low back condition that pre-existed the personal injury.  The medical records document extensive treatment by numerous medical providers, including a hospitalization, for acute flare-ups of a low back condition, with both left and right-sided radicular complaints.  Following the 2001 injury, the employee initially complained of low back pain with a right-sided radicular component.  Within several months, however, the right-sided pain resolved and the employee complained of left leg symptoms as he had before this injury.  Although he had no formal restrictions prior to the 2001 injury, the medical records document the periodic imposition of restrictions by the employee=s treating physicians.

 

Dr. Wicklund opined the employee had pre-existing degenerative disc disease with a bulging disc at L4-5 and a left-sided L5-S1 disc herniation.  The doctor=s January 2003, neurologic examination was normal, and Dr. Wicklund opined the October 2001 injury did not permanently aggravate his pre-existing condition.  Dr. Anderson, the employee=s treating physician, also apparently was of the opinion the 2001 injury did not cause any permanent change in the employee=s condition.

 

Clearly, there is substantial evidence of record which would support a different result in this case.  It is not, however, this court=s function to assess whether substantial evidence might support a factual conclusion contrary to that reached by the compensation judge.  Rather, it is this court=s function to determine whether the compensation judge=s findings of fact and order are clearly erroneous and unsupported by substantial evidence in view of the entire record.  Minn. Stat. ' 176.421, subd. 1(2004).  The point is not whether this court might have viewed the evidence differently, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).

 

Dr. Mark Engasser reviewed the employee=s medical records, obtained a history from the employee and performed a physical examination in January 2004.  The doctor concluded the October 2001 personal injury permanently aggravated the employee=s L4-5 disc which prevents him from returning to his pre-injury job.  Dr. Engasser=s opinions are adequately founded and the compensation judge reasonably relied upon them.  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, 342, 37 W.C.D. 364, 371 (Minn. 1985).  Despite the evidence to the contrary, we cannot conclude the judge=s decision is clearly erroneous and unsupported by substantial evidence.  Accordingly, the decision of the compensation judge must be affirmed.

 

2.  Temporary Partial Disability Benefits

 

The employee sought temporary partial disability benefits based on his actual earnings from his post-injury employments.  The compensation judge found the employer had rebutted the presumption that the employee=s post-injury earnings were an accurate measure of his earning capacity, and found the employee had an earning capacity of $16.00 an hour for a 40-hour week.  The judge, accordingly, awarded temporary partial disability benefits based on an imputed wage of $640.00 per week.  The appellant agrees the compensation judge correctly concluded any award of temporary partial benefits must be based on an imputed wage.  The appellant, however, contends the wage imputed to the employee is too low and is unsupported by substantial evidence.  The fact the employee could have earned a wage of $16.00 per hour more than three years prior to the hearing establishes, the appellant argues, his earnings on the date of the hearing should have been substantially in excess of $16.00 per hour.

 

Mr. Wilder testified the employee was not interested in job seeking skills or information and did not follow up on any of the job leads provided by Mr. Miller.  Mr. Wilder testified the jobs the employee obtained on his own paid wages which were at the low end of his earning capacity.  Had the employee followed up on the job leads provided to him, Mr. Wilder opined, the employee would have had only a nominal wage loss.  Jan Lowe testified, based upon her 2003 labor market survey, the employee could have found jobs with first year earnings Ain the 28 to 35,000 dollars per year range as a starting earning.@  Based upon her 2005 labor market survey, Ms. Lowe testified the employee could have found jobs with first year earnings Ain the 35 to 40,000 dollar per year range, and in some instances 40 to 60,000 dollars per year if he were to be successfully employed as a sales associate.@  (T. at 128.)  Ms. Lowe specifically referred to a job opening with the City of St. Louis Park for a public safety dispatcher that paid $35,500 to $46,500 per year; a dispatcher position with the City of Lakeville that paid $19.60 per hour, and a home security commission sales position with estimated first year earnings of $40,000 to $60,000.  Ms. Lowe testified that wage increases were dependent upon the employer but with one or two years experience, an employee should be at median salary for the position.

 

An award of temporary partial disability benefits based on an imputed earning capacity is permissible.  See Herrly v. Walser Buick, 46 W.C.D. 530 (W.C.C.A. 1992).  The determination of an imputed wage is a determination of earning capacity and is essentially factual in nature.  Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989).  The compensation judge concluded the employee was capable of earning $16.00 an hour in November 2002.  Certainly, there is merit to the employer=s argument that by August 2005, the date of the hearing, the employee=s imputed earnings would have increased.  That issue, however, was never specifically litigated by the parties and the compensation judge made no findings on whether the imputed wage should be increased by raises.^[3]  There was no direct evidence as to the amount of any raise above $16.00 an hour the employee might have received.  Accordingly, we cannot conclude the compensation judge erred in awarding temporary partial disability benefits based on a $640.00 imputed wage.  The appellant may raise the issue of increases in the imputed wage in a future proceeding.

 

The appellant next argues the compensation judge failed to consider the employee=s ability to work overtime in determining the imputed earning capacity.  The employee worked substantial overtime prior to his injury, and no doctor has imposed any restrictions on the number of hours the employee can work.  Despite his ability to work overtime, the appellant contends the employee has not sought overtime work or pursued jobs in which overtime opportunities may be available.  Accordingly, the appellant contends the compensation judge=s finding regarding the imputed wage is unsupported by substantial evidence.

 

Ms. Lowe testified the dispatching jobs identified in her labor market surveys would have overtime available.  Specifically, Ms. Lowe testified, AWell, for example, Lakeville was advertising for four dispatchers.  They needed that many dispatchers and couldn=t find them, there could be a possibility for overtime right there.@  (T. at 130.)  Ms. Lowe also testified the employee could have continued his present job and worked as a dispatcher for Lakeville.  The compensation judge, however, found no evidence of record showed the employee would have been likely to be offered overtime had he worked as a dispatcher.  The testimony of Ms. Lowe notwithstanding, this is a reasonable conclusion to be drawn from the evidence.  Ms. Lowe offered no specific evidence that overtime was available at any of the positions she identified in her labor market surveys.  Given the lack of any specific evidence of a job with actual overtime earnings available, the compensation judge could reasonably base the employee=s imputed wage on a 40-hour week.  The compensation judge=s decision is affirmed.