DANNY A. WINKLER, Employee, v. GREENVIEW LANDSCAPING, INC., and HAWKEYE SEC. INS., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 1, 2006

 

No. WC05-294

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records and witness testimony, supports the compensation judge=s finding that the employee remained entitled to temporary total disability benefits through August 13, 2005, the date of the expiration of the statutory 90-day period following service of maximum medical improvement.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical records, supports the compensation judge=s finding that the employee sustained a 10% permanent partial disability of the whole body as a substantial result of his October 4, 2004, work-related injury.

 

Affirmed.

 

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

Compensation Judge: Kathleen Behounek

 

Attorneys: James A. Reichert, Minneapolis, MN, for the Respondent.  Craig B. Nichols and Patrick W. Ostergren, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Appellants.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s denial of the employer and insurer=s request to discontinue the employee=s temporary total disability benefits as of May 16, 2005, from the judge=s award of temporary total disability benefits through August 13, 2005, and from the judge=s award of permanent partial disability benefits.  We affirm.

 

BACKGROUND

 

On October 4, 2004, while employed by Greenview Landscaping, Inc., Danny Winkler sustained an injury to his low back when he and another individual attempted to lift a sod cutter out of a trailer.  The sod cutter weighed approximately 400 pounds.  The individual assisting the employee dropped the sod cutter as he and the employee lifted it out of the trailer; the sod cutter fell to the ground while the employee bore the entire weight of the sod cutter.  The employee experienced significant pain in his low back as a result of this injury, and received emergency room treatment later that day for his injury.  He reported low back pain and numbness in his right lower extremity, and later underwent conservative care including prescription medication, physical therapy and epidural steroid injections.  An MRI of the employee=s lumbar spine taken on October 12, 2004, showed mild degenerative disc disease at three levels, with facet arthropathy, with no significant central canal or neural foraminal stenosis and no nerve impingement.

 

The employer and insurer admitted primary liability for the injury, and paid the employee temporary total disability benefits and medical expenses on his behalf.  The employee remained off work following his injury through at least August 13, 2005.  He underwent limited physical therapy treatments following his injury, and was referred by his treating physician to Dr. Ross Pettit, for a neurological consultation.  Dr. Pettit conducted an EMG of the employee=s lower extremities, which had normal results.  He found no evidence of a neurologic injury, and concluded that there was no evidence of a lumbar radiculopathy.  Dr. Pettit diagnosed severe mechanical low back pain, and recommended that the employee be referred to a physiatrist or a rehabilitation specialist.  In November 2004, the employee began treating with Dr. Paul Fleissner, at Altru Occupational Medicine.  He was also referred to Dr. Jayant Damle, for a pain management consultation; Dr. Damle provided two epidural steroid injections in December 2004 and January 2005.  Following a neurological consultation on February 14, 2005, Dr. Joseph Williams referred the employee for an MRI of the cervical spine to determine if the employee had a paramedian herniation in his cervical region that could explain his weakness in his right leg and arm.  Dr. Williams reported that the MRI, conducted on March 6, 2005, was essentially normal but that it showed mild stenosis at the C6-C7 level but no significant disc disease.

 

On March 28 and 29, 2005, the employee underwent a functional capacities evaluation for determination of his work restrictions.  Based on those examination results, Dr. Fleissner assigned the following work restrictions for the employee: overhead lifting up to 10 pounds, lifting up to 15 pounds, frequent standing, sitting, walking and reaching; occasional bending, stooping, twisting or squatting; occasional reaching above his shoulder and kneeling; no crouching, and occasional pulling up to 28 pounds and pushing up to 14 pounds.  He also recommended that the employee return to sedentary work for four hours per day for two weeks, and that he work an additional hour per day every day until he resumed work at 8 hours per day.

 

At the request of the employer and insurer, the employee underwent an independent medical examination with Dr. Colin W. Fennell on April 22, 2005.  Dr. Fennell=s report dated May 18, 2005, reflects the employee=s history that he continued to experience the same type of symptoms he had felt since his October 2004 injury, including persistent low back discomfort with pain radiating to his right foot.  Dr. Fennell diagnosed an acute onset of lower back pain with radicular radiation to the right leg which he characterized as a mechanical low back problem.  He determined that the employee=s October 4, 2004, injury substantially contributed to his condition and the medical treatment that the employee underwent following that injury.  Dr. Fennell, however, concluded that the employee had reached maximum medical improvement from his low back injury and that he sustained no permanent partial disability as a consequence of that injury.  He also concluded that no further treatment was necessary relative to that injury.

 

During the pendency of this claim, the employer and insurer retained a private investigator to conduct surveillance of the employee=s activities on November 13-15, 2004, and again on April 21-24, 2005.  A portion of the surveillance was videotaped (later recorded on DVDs and submitted as Er/Insr Exhibit 1).  Examples of activities recorded on video showed the employee walking, driving his automobile, getting into and out of his automobile, walking in parking lots and in and out of buildings, and carrying sheets of styrofoam insulation.  The video also showed the employee performing outdoor yard work, including walking and standing, carrying, lifting, using a hand-held chain saw to cut dead tree limbs and branches, and dragging those branches onto a pile.  The video showed the employee bending over at the waist to perform these activities, and also showed him crouching while pull-starting a chain saw and while sawing branches, carrying a chain saw, lifting branches, and lifting a suitcase into the back of his automobile.

 

A portion of the surveillance video was recorded on the same day that the employee was examined by Dr. Fennell; following that examination, the employer and insurer evidently provided the surveillance video to Dr. Fennell for his review.  Dr. Fennell=s report included his  observations that the employee moved slowly during the medical examination and had difficulty moving between sitting, standing and reclining positions.  In his report, Dr. Fennell commented on the surveillance video, and stated that,

 

[T]he movements seen on April 23 and April 24 [shown on the DVDs in evidence] are incongruent with the physical examination noted in the office.  One would have to surmise that his stability as noted in the office was substantially fabricated, as he was able to demonstrate over an extended period of time heavy physical labor with no evidence of the back discomfort shown by himself in my office on April 22, 2005.

 

Based on his review of the surveillance videos, Dr. Fennell concluded that the employee=s current condition no longer limits his work ability, and that he was able, at the time of the examination, to perform heavy physical work for an extended period of time without apparent discomfort.

 

Dr. Fleissner continued treating the employee through at least April 2005.  Following an examination of the employee on April 29, 2005, Dr. Fleissner again diagnosed chronic low back pain, and recommended that the employee return to sedentary work within the limits set forth in the FCE report.  He concluded that the employee had a Afair@ prognosis, and determined that the employee had sustained permanent partial disability to the extent of 10% whole body impairment, based on his symptoms, findings on MRI and objective examination findings.^[1]

 

On May 16, 2005, the employer and insurer served the employee with a Notice of Intention to Discontinue Benefits (NOID), contending that he had reached maximum medical improvement (MMI), that no further treatment was needed and that he had sustained no permanent partial disability.  In support of their contentions, the employer and insurer submitted Dr. Fennell=s report and the surveillance video.  Following an administrative conference held before a compensation judge on June 30, 2005, the judge issued an administrative order, determining that the employer and insurer had reasonable grounds to discontinue the employee=s temporary total disability benefits as of the date of the NOID, in part because the surveillance video revealed the employee was able to perform certain physical activities with no noticeable discomfort or limitation, and that the recorded activities were inconsistent with the restrictions outlined in the report issued after the employee=s functional capacities evaluation.   The  employee objected to the discontinuance and filed a request for formal hearing.

 

This matter was addressed at a hearing on September 8, 2005, before another workers= compensation judge.  At the hearing, the parties agreed to expand the issues to include the employee=s claim for permanency benefits.  In her Findings and Order, served and filed on November 7, 2005, the compensation judge concluded that the employee experiences ongoing low back pain as a result of his work injury, that he requires work restrictions as a result of that injury, and that he has sustained a 10% permanent partial disability of the whole body as a result of that work injury.  The compensation judge concluded that the activities performed by the employee on the surveillance DVDs appeared not to exceed the restrictions identified by the employee=s treating physician and that the documented activities were not necessarily outside of the restrictions identified from the functional capacities evaluation.

 

The compensation judge also found that the employee reached maximum medical improvement from his work injury as of May 16, 2005, the date on which the employer and insurer served and filed the notice of MMI along with the NOID.  The compensation judge accordingly determined that the employee is entitled to temporary total disability benefits through August 13, 2005, which was the expiration date of the statutory 90-day period following service of notice of maximum medical improvement.^[2]

 

The employer and insurer appeal from the denial of their request to discontinue benefits, from the award of temporary total disability benefits through August 13, 2005, and from the award of permanent partial disability benefits.

 

DECISION

 

The two issues presented to the compensation judge were (1) whether the employer and insurer were entitled to discontinue payment of temporary total disability benefits (TTD), and (2) whether the employee had sustained a 10% permanent partial disability of the whole body, as a result of his work injury of October 4, 2004.  The employer and insurer denied that the employee was entitled to TTD benefits after May 16, 2005, and also denied that the employee had sustained any permanent disability as a result of his work injury.

 

The employer and insurer paid TTD between the date of his October 4, 2004, injury, and the date of the NOID, May 16, 2005.  The employer and insurer contended that the employee reached maximum medical improvement by at least May 16, 2005, the date of service of Dr. Fennell=s report, and also contended that the employee no longer required work restrictions or additional treatment for his injury.  The employer and insurer further argued that the employee=s injury was not permanent in nature and resulted in no permanent partial disability, relying on the opinion of Dr. Fennell and the surveillance video in support of their position.

 

No dispute existed as to whether the employee had reached maximum medical improvement by May 2005, and neither party appealed from the compensation judge=s finding that the effective date of service of MMI was May 16, 2005, the date of service of Dr. Fennell=s report.  The employer and insurer contended, however, that because he was no longer physically restricted as a result of his work injury, the employee=s entitlement to TTD ceased as of May 16, 2005.

 

The compensation judge disagreed with the employer and insurer=s position, finding that the employee remained entitled to payment of temporary total disability benefits through August 13, 2005.  The judge concluded that the employee experiences ongoing low back pain as a result of his October 4, 2004, work injury, that clinical examination findings showed decreased range of motion in the lumbar spine and evidence of involuntary muscle tightness, and that the employee requires work restrictions as a result of his work injury.  In accordance with those findings, the compensation judge concluded that the employee=s entitlement to TTD benefits continued through August 13, 2005, the date of the expiration of the statutory 90-day period following service of notice of maximum medical improvement.

 

Our review of the record shows that the compensation judge had ample evidentiary support for her findings in the employee=s medical records and his testimony.  The employee=s medical records document his reports of ongoing symptoms, including low back pain and radicular symptoms in his right leg.  The employee testified about his ongoing symptoms, the physical limitations he has experienced as a result of his work injury.  In addition, the results of the employee=s functional capacities evaluation in March 2005 identified specific restrictions relative to his low back injury.  On the basis of that FCE and his examination findings, Dr. Fleissner, one of the employee=s treating physicians, assigned work restrictions for the employee.

 

The employer and insurer argue that the surveillance videos, submitted into evidence, clearly documented that the employee was physically able to perform activities well in excess of the limitations set forth in the FCE report.  The compensation judge directly addressed the surveillance videos, and concluded that the activities shown in those videos were not Aheavy physical labor.@  The compensation judge acknowledged that the videos showed the employee engaged in activities including sawing tree branches, clearing brush, bending to pick up branches and dragging branches.  She concluded, however, that the lifting and the occasional bending performed by the employee while clearing brush did not necessarily exceed the employee=s restrictions outlined by the FCE.  The compensation judge also took note of how the surveillance video reflected the employee=s back discomfort and his pattern of walking while slightly bent, with an unnatural gait and slight limp.

 

The compensation judge concluded that not only did the employee=s clinical examination findings support his claim for temporary total disability benefits and his contention that he continues to be symptomatic due to his injury, but that those examination findings also supported his claim for permanent partial disability benefits.  The compensation judge found that the employee had sustained 10% permanent partial disability of the whole body as a result of his work injury, relying on the rating assigned by Dr. Fleissner and  rejecting Dr. Fennell=s opinion that the employee had sustained no permanent injury.  The compensation judge addressed the permanency claim in her memorandum, as follows:

 

Dr. Fennell noted muscle spasm in the employee=s lumbar spine at the time of his examination of the employee in May 2005.  This finding is objective evidence to substantiate the employee=s complaints of low back pain.  Dr. Fennell fails to explain his conclusion that the employee=s subjective complaints were fabricated in light of objective clinical findings at the time of his examination of the employee.

 

The evidence supports the employee=s contentions that he continues to experience ongoing symptoms due to the work injury.  The evidence showed objective clinical findings of loss of range of motion and involuntary muscle tightness to substantiate the employee=s symptoms and the necessity of restrictions on his work activities.  The evidence further supports the employee=s treating doctor=s rating of 10% whole body impairment relative to the employee=s lumbar spine.

 

On appeal, the employer and insurer argue that the records in evidence support a contrary result than the conclusions reached by the compensation judge.  The question for this court is not whether the evidence would support a contrary result but whether substantial evidence supports the decision reached by the compensation judge.  It is the role of this court to 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).  In this case, substantial evidence, including medical records and witness testimony, supports the compensation judge=s findings that the employee=s October 2004 injury was a substantial contributing factor in his temporary disability in 2005 and that his injury resulted in a 10% permanent partial disability of the whole body.  We therefore affirm the compensation judge=s findings and order in their entirety.