WAYNE M. PETERSON, Employee, v. H.J. MARTIN & SON, INC., and ZURICH N. AM.,  Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 23, 2008

 

No. WC08-119

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION.  The appealing party cannot, on appeal, object to the opinions expressed by the medical expert accepted by the compensation judge where that party offered the records of the medical expert into evidence.  A party should not be permitted to offer medical records or testimony into evidence, await the outcome of the hearing, and, having lost, assert on appeal the medical expert lacked sufficient factual foundation for the opinion the party submitted.

 

JOB SEARCH - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s determination that the employee performed a reasonably diligent search for work.

 

Affirmed.

 

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

Compensation Judge: Janice M. Culnane

 

Attorneys: Russell G. Sundquist, Sundquist & Assocs., St. Paul, MN, for the Respondent.  Michael J. Koshmrl and Adam J. Brown, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s finding that the employee=s January 15, 2007, personal injury was a substantial contributing cause of the employee=s need for a total knee replacement and the compensation judge=s finding that the employee=s job search was reasonable and diligent.  We affirm the compensation judge=s findings.

 

BACKGROUND

 

Wayne M. Peterson, the employee, sustained a personal injury to his left knee on January 15, 2007, while working for H.J. Martin & Son, Inc., the employer, then insured by Zurich North America.  The employer and insurer admitted the employee=s injury arose out of and in the course of his employment and commenced payment of temporary total disability benefits effective January 16, 2007.

 

The employee did not return to work for the employer following his personal injury.  He testified he did not look for work from January 16 through August 19, 2007.  On August 20, 2007, the employee testified he went to the Carpenter=s Union in Minneapolis/St. Paul and Rochester and told them he was ready to go back to work.  The employee testified his name was then placed on a work list.  Petitioner=s Exhibit G, the employee testified, is a list of all the contractors that belong to the Carpenter=s Union in the Minneapolis/St. Paul and surrounding area, consisting of approximately 250 contractors.  The employee stated he contacted 75 or 80 percent of these contractors by telephone seeking employment, many of them more than once.  The employee testified he only looked for work through the union but stated he was required to go through the union if he wanted to work.  The employee received no job interviews or job offers as a result of his contacts.

 

The employee sustained numerous injuries to his left knee prior to the injury of January 15, 2007.^[1]  In August 1979, the employee was seen at the Austin Medical Clinic complaining of a left knee sprain following a slip and fall while working for Conger Construction.  On March 4, 1982, the employee injured his left knee while working for Minnesota Valley Action Council when he fell off a ladder.  The next day, Dr. E. L. Markey performed arthroscopic surgery on the employee=s left knee for an avulsion fracture of the lateral tibial condyle and to repair a tear of the anterior cruciate ligament.  By report dated June 18, 1982, Dr. Markey stated the employee=s condition was post-ligamentous tear of the left knee with resultant laxity.  The doctor stated, Athis condition may predispose future cartilage tears and continued loosening of the knee and premature arthritis.  Future surgery cannot be ruled out at this time, nor can the need for a stabilizing brace.@  The doctor released the employee to return to work and rated a 10% permanent partial disability.  (Resp. Ex. 2.)

 

On August 12, 1987, the employee re-injured his left knee while working for Hanson=s Silo.  Dr. Darko Florschutz performed arthroscopic surgery on the employee=s left knee on August 28, 1987, to repair a torn medial meniscus with a shaving of chondromalacia and a cartilaginous defect of the medial femoral condyle.  Dr. Florschutz ultimately rated an additional 2% permanent disability secondary to this injury.  On April 20, 1988, the employee twisted his left knee while working for Hanson=s Silo.  The employee underwent another left knee surgery in May 1988 for a partial tear of the lateral meniscus.  The surgeon, Dr. Paul Iverson, rated the employee with an additional 2% whole body disability following the surgery.

 

On December 12, 1989, the employee re-injured his left knee while working for Gardner Brothers Construction.  The employee saw Dr. William Schneider at St. Croix Orthopedics on December 15, 1989.  The employee told the doctor he had a long history of left knee problems, but stated that following his last surgery his knee was very good.  The employee told the doctor he had had no knee problems for the last two years and stated he was able to water ski and do other sports.  Dr. Schneider diagnosed an acute left knee injury with probable anterior cruciate ligament instability.  In January 1990, Dr. Schneider performed a subtotal medial meniscectomy, a partial lateral meniscectomy and reconstruction of the anterior cruciate ligament.  In December 1990, Dr. Schneider rated the employee with a 10% whole body disability as a result of the December 12, 1989, personal injury.

 

The employee returned to see Dr. Schneider in April 1998.  He stated he was having no problems with his knee until a month ago when the knee swelled and became painful.  The employee also described some crunching and catching in his knee, but no episodes of giving way.  Dr. Schneider diagnosed degenerative arthritis, aspirated the employee=s knee and injected it with cortisone.

 

On September 17, 2006, the employee saw Dr. Matthew Sedgley at the Stillwater Medical Group complaining of left knee pain for three weeks.  The employee stated he was walking down steps, rotated and felt his left knee pop and stated the knee had been locked for the last three days.  An x-ray showed advanced degenerative changes.  On September 18th the employee saw Dr. Richard Powell who ordered a MRI scan which was completed that same day.  The scan showed moderate joint effusion with a 12 mm loose body in the supra patellar pouch, grade III-IV chondromalacia with subchondral changes  in the mid-medial femoral condyle, medial tibial plateau and the medial compartment with a partial resection or displaced tear of the posterior horn of the medial meniscus.  The employee returned to see Dr. Powell on December 20, 2006, and stated he was unable to work due to knee pain and his knee locking.  On examination the doctor found a limited range of motion without swelling, redness or effusion.  The doctor diagnosed degenerative joint disease, chondromalacia of the left knee, a torn medial meniscus and a loose body in the left knee.  Dr. Powell told the employee his knee was not going to get any better and recommended he consult an orthopedic surgeon.

 

On December 26, 2006, the employee began working for the employer installing shelving in a Menard=s store.  On January 15, 2007, the employee was using a hammer drill to drill holes in a concrete floor to anchor the shelving.  The employee stated the drill bit hit a piece of rebar in the concrete causing the drill to spin and it struck him on the left knee.

 

The employee saw Dr. Powell on January 16, 2007, complaining of increased pain following the January 15th injury.  The doctor noted the employee was barely able to bear weight on his left knee.  His diagnosis was degenerative joint disease with an acute traumatic exacerbation.  Dr. Powell referred the employee back to Dr. Schneider who examined the employee on January 25, 2007.  An MRI scan on February 2, 2007, showed advanced degenerative changes in the medial and lateral joint compartments of the left knee with grade IV chondromalacia involving both the medial and lateral femoral condyles and tibial plateau regions, osteonecrosis of the posterior tibial plateau, a macerated appearance of the menisci both medially and laterally with posterior medial meniscus complex tearing and lateral meniscus peripheral horizontal tearing and grade I chondromalacia of the patella with linear fissure and joint effusion.  Dr. Schneider reviewed the MRI scan, noted the ACL graft was intact and diagnosed advanced medial and lateral compartment chondromalacia with significant tearing of the menisci, superimposed on pre-existing degenerative arthritis.  The doctor injected the knee with cortisone and recommended total knee replacement surgery.  In his office note of February 8, 2007, Dr. Schneider stated:

 

The injury he had at work with the drill certainly severely aggravated his underlying condition and I suspect resulted in some tearing of the meniscus.  In any event, his current problems with the knee are causally related to the injury he had at work.  (Pet. Ex. 4.)

 

The employee returned to see Dr. Schneider on March 29, 2007.  On examination, the doctor noted the employee walked with an antalgic limp.  The diagnosis was:

 

Post-traumatic degenerative arthritis left knee with severe disability.  This is due to an old injury.  The symptoms have been markedly increased since the injury he had at work with the drill accident.  For this reason his current problems are causally related to that injury at work.

 

Dr. Schneider reported the employee elected to proceed with a total left knee replacement (Pet. Ex.  4.)

 

Dr. Paul T. Wicklund examined the employee on August 8, 2007, at the request of the employer and insurer.  In his report of August 8, 2007, Dr. Wicklund enumerated the medical records he reviewed, recited the history he obtained from the employee, outlined the employee=s past medical history, and recorded his physical examination.  Dr. Wicklund diagnosed advanced degenerative arthritis of the left knee, status-post medial and lateral meniscectomies and ACL reconstruction.  The doctor opined the employee sustained a contusion to his left knee on January 15, 2007, which did not cause, aggravate, or accelerate the underlying condition of the employee=s left knee.  Dr. Wicklund stated he based this opinion on his review of the Amultiple operative reports@ as well as the September 17, 2007, MRI scan, which he stated showed the employee=s

 

left knee was severely affected by a combination of degenerative arthritis and instability from an anterior cruciate rupture.  The degenerative arthritis in his left knee came on at a much more rapid pace because of the instability of his knee and this premature degenerative arthritis of the left knee was predicted many years ago by his treating surgeon.

 

Dr. Wicklund further stated the employee was diagnosed as having severe degenerative arthritis of the medial and lateral compartments of the left knee and tearing of the medial meniscus in September 2006.  The doctor opined this condition did not change as a result of the contusion in January 2007.  Dr. Wicklund opined the employee=s need for total knee replacement was due to his prior knee problems not to the left knee contusion which occurred in January 2007.  Rather, the doctor stated:

 

The significant contributing factors to the need for total knee replacement include the anterior cruciate ligament tear and the medial meniscus tear which were documented in the medical records before January 15, 2007.

 

On August 17, 2007, the employer and insurer filed a Notice of Intention to Discontinue Benefits alleging the employee=s continuing disability and need for medical treatment was due to a pre-existing condition and asserting the January 15, 2007, personal injury was a temporary aggravation from which the employee had recovered without residual disability or need for medical treatment.  The employee=s benefits were discontinued pursuant to an Order on Discontinuance served and filed September 19, 2007.  The employee then filed an Objection to Discontinuance.  Following a hearing, the compensation judge found the employee=s January 15, 2007, personal injury was a substantial contributing cause of the employee=s continuing disability and ordered the employer and insurer to continue payment of temporary total disability benefits.  The employer and insurer then appealed this decision to the Workers= Compensation Court of Appeals.  In March 2008, while this appeal was pending, the employer and insurer sought a Temporary Order under Minn. Stat. ' 176.191 allowing them to pay benefits to the employee pending a determination of liability.  The Temporary Order was served and filed on April 11, 2008.

 

DECISION

 

1.  Adequate Factual Foundation

 

On appeal, the employer and insurer contend the compensation judge=s finding that the January 15, 2007, personal injury was a substantial contributing cause of the employee=s need for a total knee replacement is unsupported by substantial evidence.  In reaching this conclusion, the compensation judge adopted and relied upon Dr. Schneider=s opinion that the January 2007 work injury was a substantial contributing cause of the employee=s need for a total knee replacement.  On appeal, the appellants contend the judge erred in adopting Dr. Schneider=s opinion, asserting that opinion lacked foundation.  The appellants argue Dr. Schneider was unaware of the treatment the employee received from 1998 to 2006, was unaware of the employee=s serious knee problems in September 2006, and was unaware of essentially identical MRI scan findings before and after the January 2007 incident.  Accordingly, the appellants seek a reversal of the compensation judge=s decision.

 

The compensation judge relied upon the opinion of Dr. Schneider in concluding the January 2007 personal injury was a substantial contributing cause of the employee=s need for a total knee replacement.  In this case, the appellants offered into evidence the medical records and reports of Dr. Schneider, and the evidence was admitted without objection^[2].  A party cannot, on appeal, challenge that party=s own evidence.  See, Boyd v. Jamar Co., No. WC07-196 (W.C.C.A. Feb. 22, 2008).  A party should not be permitted to offer medical records or testimony into evidence, await the outcome of the hearing and, having lost, then assert on appeal the medical expert lacked foundation for the opinion.  Since the appellants offered Dr. Schneider=s records into evidence, they cannot now object to the opinions expressed therein.  Accordingly, the compensation judge=s decision on the causation issue is affirmed.

 

2.  Job Search

 

On August 20, 2007, the employee went to the Carpenter=s Union and placed his name on the out-of-work list in Minneapolis/St. Paul and Rochester areas and told them he was ready to go back to work.  Further, the employee personally contacted approximately 175 employers seeking work.  Following his personal injury, the employee apparently looked for work in essentially the same manner he would have had he been laid off and did not disclose that he had any restrictions or limitations due to his knee condition.  The appellants contend the employee=s job search was not diligent because it was limited to union carpentry positions.  Since there was no testimony the employee limited his job search or refused the employment because of his knee condition, the appellants contend the employee=s disability was due to the economy not his work injury.  Accordingly, the appellants contend the compensation judge erroneously awarded temporary total disability benefits.  We are not persuaded.

 

Total disability exists if a personal injury Atotally incapacitates the employee from working in an occupation which brings the employee an income.@  Minn. Stat. ' 176.101, subd. 5.  Thus, total disability is not based solely on a physical inability to work but may also be based on an inability to find work the injured employee is capable of performing.  Schulte v. C. H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).  An injured employee Aproves total disability by showing that work the employee is capable of doing is unavailable and unavailability is shown by a diligent job search to no avail.@  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  It is not a requirement of an award of temporary total disability benefits that the employee be refused employment because of his personal injury.  Rather, the issue is the diligence of the employee=s search for work.

 

The employee testified he personally contacted approximately 175 contractors who belong to the Carpenter=s Union in the Minneapolis/St. Paul area.  He testified he spoke either to a receptionist, a personnel manager, or left a voice mail and contacted on average a dozen contractors each week.  Although he felt his work restrictions might prevent him from doing some job duties, he testified he needed work to make his mortgage payments.  The employee did not receive rehabilitation assistance and his job search must be viewed in light of that fact.  Given the facts in this case, we cannot conclude the employee=s job search was not diligent.  The compensation judge=s award of total disability benefits is affirmed.