AGUSTIN REYNOSO, Employee, v. BARCELO CRESTLINE CORP. and EMPLOYERS INS. OF WAUSAU, Employer-Insurer/Appellants, and PAR, INC., SPINE IMAGING MRI, THERAPY PARTNERS, INC., NORTHSTAR RADIOLOGY, NORTH MEM=L HEALTH CARE, and PREMIER HEALTH OF WEST ST. PAUL, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 5, 2008

 

No. WC07-281

 

HEADNOTES

 

CAUSATION - MEDICAL TREATMENT; EVIDENCE - EXPERT MEDICAL OPINION.  Substantial evidence, including expert medical opinion, supports the compensation judge=s opinion that the employee=s work injury of May 6, 2006, represents a substantial contributing factor in his current disability and need for medical treatment.

 

MEDICAL TREATMENT & EXPENSE - SURGERY.  Substantial evidence, including medical opinion, supports the compensation judge=s approval of the proposed low back surgery.

 

TEMPORARY TOTAL DISABILITY - WORK RESTRICTONS.  Based on the medical records and testimony, the compensation judge could reasonably conclude that the employee=s ability to work was restricted as a substantial result of his work injury.

 

JOB SEARCH - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s award of temporary total disability benefits where the employee cooperated with his rehabilitation plan.

 

WAGES - CALCULATION.  The compensation judge did not err by excluding unearned income from gambling winnings in determining the employee=s earnings where the employee was not a professional gambler.

 

Affirmed.

 

Determined by: Rykken, J., Pederson, J., and Stofferahn, J.

Compensation Judge: Janice M. Culnane

 

Attorneys: Bernard J. Robichaud, Minneapolis, MN, for the Respondent.  Thomas V. Maguire, Brown & Carlson, Minneapolis, MN, for the Appellants.  Kris Wittwer, Roseville, MN, for the Intervenor, North Mem=l Health Care.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits, medical expenses and rehabilitation services, and from the finding that the proposed surgery would be reasonable and necessary to cure and relieve the effects of the employee=s work injury.  We affirm.

 

BACKGROUND

 

Mr. Agustin Reynoso [the employee] began working as a banquet server for Barcelo Crestline Corporation [the employer] in 2001, and by May 2006 earned a weekly wage of $687.73.  On May 6, 2006, the employee injured his low back while lifting a tray or rack of water glasses filled with water and ice.  As he lifted and twisted, he felt pain in his low back, and reported this incident to the employer.

 

The employee initially sought medical treatment on May 9, 2006, reporting low back pain, with numbness and pain behind his left knee.  In late June, he consulted Dr. Paul Satterlee at the emergency room of North Memorial Health Care, reporting continued low back pain and  radiating pain and numbness in his left leg.  Dr. Satterlee assessed the employee=s condition as sciatica, prescribed a Medrol DosePak and Percocet, and assigned lifting restrictions of 5 pounds.  The employee also consulted Peter Ladd, D.C., reporting pain in his low back which extended into his left leg and ankle.  Dr. Ladd diagnosed intervertebral disc disorder without myelopathy and a sprain/strain of the lumbar and sacroiliac ligament area.  Dr. Ladd provided multiple chiropractic treatments to the employee between June 28, 2006, and January 19, 2007.  He restricted the employee to no lifting over 10 pounds.  These restrictions prevented the employee from returning to work as a server, as the employer advised that no work was available for the employee until he was released to return to work without lifting restrictions.  The employee=s symptoms persisted; he noted occasional flare-ups of his low back symptoms and continued to seek medical attention while he remained off work.

 

The employer and its insurer, Employers Insurance of Wausau [insurer], denied primary liability and notice of the employee=s injury.  The employee filed a claim petition on July 14, 2006, seeking payment of temporary total disability benefits, payment of medical expenses and provision of rehabilitation services.

 

By October 2006, the employee=s position with the employer was terminated.^[1]  At that time, the employee remained subject to work restrictions.  He commenced a search for replacement employment, initially seeking work as a banquet server or restaurant worker and later expanding his search to other areas, including food preparation, delivery service, office work, assembly, and warehouse coordinator.

 

On October 17, 2006, Dr. Loren Vorlicky, orthopedic surgeon, examined the employee at the request of the employer and insurer.  He diagnosed degenerative disc disease of the lumbar spine, specifically at the L5-S1 level.  He concluded that the employee had sustained a lumbar strain and temporary aggravation of his degenerative disc disease as a result of his injury of May 6, 2006, and that the injury had resolved within 10 to 12 weeks following the injury.  Dr. Vorlicky concluded that the employee=s treatment for that 12-week period had been reasonable and necessary, but that any treatment beyond that point had not been related to his work injury.  Dr. Vorlicky also concluded that the employee had no restrictions on either his daily living or work duties, and that he had reached maximum medical improvement [MMI] no later than 12 weeks post-injury. He recommended against any further medical care or chiropractic treatment, and instead recommended a daily aerobic home exercise program with truncal strengthening and aerobic conditioning.

 

In 2006, the employee generated extensive winnings while using slot machines at Mystic Lake Casino.  According to the record, the employee generated  winnings on one day in April 2006, before his injury on May 6, 2006, and on 22 days between July and December 2006.^[2]  According to the employee=s federal and state income tax returns, he reported non-earned income from gambling for the year 2006 which was partially offset by gambling losses.

 

The employee continued to receive chiropractic treatments throughout 2006.  By November 7, 2006, the employee reported to Dr. Ladd that he noted continued bilateral lower back pain and stiffness that was mild in intensity and that had improved after his last treatment.  Following his treatment on that date, Dr. Ladd released the employee to return to his work without restrictions and instructed the employee on recommended home exercises.  By December 8, 2006, Dr. Ladd advised the employee to return for additional treatment on an as-needed basis.  At the time of his last treatment on January 19, 2007, the employee reported continued left side lower back pain and pain radiating into his lower extremity, with worsened pain after work or activities.

 

In February 2007, the employee consulted an orthopedic surgeon, Dr. John Stark, reporting pain in his left hemipelvis area extending into his left thigh.  The employee=s straight leg raising test resulted in positive findings.  In contrast to Dr. Vorlicky=s assessment of degenerative disease of the lumbar spine, Dr. Stark diagnosed pain originating in the left sacroiliac [SI] joint.  He provided the employee with a diagnostic corticosteroid injection into the SI joint; that injection provided relief for approximately two weeks.  In mid-March, a sacroiliac stress test showed positive results of left posterior superior iliac spine area pain.

 

On March 12, 2007, John Richardson, qualified rehabilitation consultant (QRC), conducted a rehabilitation consultation, and concluded that the employee was qualified to receive rehabilitation services, including medical management, vocational counseling and job placement services.  On March 13, 2007, Dr. Stark examined the employee, and outlined work restrictions, including a restriction on sitting, standing and walking up to four hours per day, and lifting restrictions.  In April 2007, the employee completed training in job seeking skills through his QRC=s office, and began working with a placement specialist, with a goal of obtaining full-time employment with the work restrictions outlined by Dr. John Stark  The employee received rehabilitation assistance, including work with a placement specialist, until July 2007.^[3]

 

By mid-May 2007, the employee reported to Dr. Stark that he was experiencing  severe distress due to his continued pain.  Dr. Stark recommended surgical fusion to treat the employee=s sacroiliac pain.

 

In a report dated August 1, 2007, Dr. Stark advised that the employee had significant restrictions, including no sitting for prolonged periods and very limited lifting or carrying.  He advised that the employee=s prognosis was poor, as he anticipated gradual worsening with progressive limitation, increased sitting intolerance, and further functional loss.  Dr. Stark disputed Dr. Vorlicky=s assessment that the employee=s injury was temporary and that the employee had reached MMI and no longer was subject to work restrictions.  In view of the employee=s failure to respond to conservative treatment, Dr. Stark recommended a left sacroiliac fusion as a means to restore the employee to employable function.  The employee amended his claim petition to include a request for approval of the recommended low back surgery.

 

The employee=s claim was addressed at an evidentiary hearing on August 30, 31 and September 12, 2007; the employee sought temporary total disability benefits, rehabilitation services, and payment of medical and chiropractic expenses, and also sought approval for the surgery recommended by Dr. Stark.  One of the issues addressed at the hearing was whether the employee=s casino winnings represented income that would offset his claim for temporary disability benefits. Evidence included the employee=s medical records; a DVD and report concerning surveillance of the employee in May and June 2007; causation opinions from Drs. Stark and Vorlicky; rehabilitation records; testimony from the employee; and testimony from five management and employee representatives from the employer.

 

In a decision issued on November 13, 2007, the compensation judge concluded that the employee had sustained an injury to his low back in the course and scope of his employment on May 6, 2006; that the employee provided the employer with notice of his injury; that he continued to be subject to work restrictions; that he had conducted a reasonably diligent job search during the period of time when he claimed wage loss benefits; that his gambling winnings did not represent income that would offset his entitlement to temporary disability benefits; and that the medical treatment the employee had received as well as the surgery proposed by Dr. Stark, were reasonable and necessary to cure and relieve the effects of the employee=s work injury.  Accordingly, the compensation judge awarded temporary total disability benefits between June 22, 2006, and June 7, 2007.  She also approved the sacroiliac surgery proposed by Dr. Stark and awarded payment of medical expenses.  The compensation judge determined that the employee was qualified to receive rehabilitation services and therefore awarded provision of rehabilitation services.  The employer and insurer appeal.

 

DECISION

 

A.  Temporary Total Disability Claim

 

The employer and insurer appeal from the award of temporary total disability benefits, and present three bases for their appeal.  The employer and insurer argue that the employee=s gross gambling winnings should be characterized as earnings that exceeded his pre-injury wage and therefore negated his entitlement to temporary total or temporary partial disability benefits.  The employer and insurer also contend that the employee had no restrictions during this period of time that disabled him from working, and that he failed to conduct a diligent job search necessary for receipt of temporary total disability benefits.

 

1.  Gambling Winnings

 

According to the employee=s testimony and documentary evidence, the employee played slot machines at a casino both before and after his injury on May 6, 2006, and obtained significant winnings in 2006.  The employer and insurer argue that these winnings should be considered as wages, tantamount to those earned through self-employment, because they were derived from the employee=s efforts labor and skills, and reflected his ability to earn.  See Backaus v. Murphy Motor Freightlines, 422 N.W. 2d 326, 42 W.C.D. 24 (Minn. 1989).  Citing as legal support to this court=s decision in Boschee v. Berry Blower, slip op. (W.C.C.A. Aug. 25, 1989), the employer and insurer contend that the employee earned his gambling winnings based upon his labor, time and skills, those winnings were paid directly to him, he had the ability to use those winnings at his own discretion, and he paid taxes on the receipt of those winnings.  As a result, the employer and insurer contend, it is proper to include those winnings in a determination of whether the employee sustained a wage loss in the months following his injury, whether the claim is analyzed as one for temporary total or temporary partial disability benefits. 

 

The employee argues that his winnings were obtained through Asheer luck@ and not through his skill, and that these winnings were not analogous to self-employment income nor did they accurately represent his earning capacity.  He also asserts that the gambling winnings were taxed as unearned income and not as wages.

 

The compensation judge denied the employer and insurer=s request for an offset of the employee=s temporary total disability benefits.  She concluded that the employee was not a professional gambler, that the employee played slot machines which was an activity which required no particular skill, that his activities at the casino were not outside his physical restrictions, and that he had conducted a job search during those weeks that he also was spending time at the casino.  The compensation judge also concluded that the Minnesota workers= compensation law does not provide for slot machine earnings to be considered Awages@ for purposes of calculating the employee=s entitlement to temporary disability benefits and noted that, likewise, the employee=s gambling winnings obtained before his work-related injury would not be included in the calculation of the employee=s weekly wage at the time of his injury. The compensation judge also concluded that although the employee was required to pay taxes on his gambling winnings, such taxation did not convert those winnings into wages under the Minnesota workers= compensation statute, and therefore no legal basis existed to allow an offset of these winnings against the employee=s temporary total disability benefits.  We agree.

 

Here, the employer and insurer argue that the employee has not sustained any wage loss post-injury due to his substantial gambling winnings.  The employee=s gambling winnings were significant, and, if considered to be Aincome,@ and if averaged out over the claim period, would have entirely offset his wage loss.  But, as counsel for the parties acknowledged at oral argument, to include those post-injury winnings would also require inclusion of pre-injury gambling winnings in calculation of the employee=s date-of-injury weekly wage.  Such treatment could logically require the same inclusion for lottery winnings, inheritances, gifts, investment income and other such unearned income into calculation of an employee=s weekly wage; that calculation would then lead to an inflated compensation rate on which an employer and insurer would be required to base payment of temporary disability benefits and on which resolution of rehabilitation and retraining issues could be based.^[4]  We do not believe that the wording of the workers= compensation statute nor related case law supports such treatment of winnings in this case.

 

Cases involving determination of earning capacity where an employee is self-employed after a work injury often include consideration of tax returns as proof of income.  That income, however, must be earned through the employee=s work contributions.  The compensation judge specifically noted that the employee is not a professional gambler; we find no evidence in the record of what constitutes a professional gambler nor any basis for considering the employee to be a professional gambler.  In these circumstances, the compensation judge did not err by concluding that the employee=s gambling winnings were not relevant for determining his post-injury wage loss, and therefore affirm the compensation judge=s finding on this issue.

 

2.  Work Restrictions

 

An employee is not entitled to temporary total disability if he or she is able to return to work without restrictions Ahaving suffered no residual disability from his work injury.@  Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  The question of whether the employee has any residual disability and is able to return to work without restrictions is one of fact for the compensation judge to determine.  Hoy v. Employment Plus, slip op. (W.C.C.A. Sept. 3, 2003).  Written restrictions from a doctor are not necessary for a compensation judge to determine that an employee has continuing limitations in the ability to be employed.  Hiller v. Parker Hannifin, No. WC04-198 (W.C.C.A. Dec. 14, 2004), citing Flaten v. Kohl=s, slip op. (W.C.C.A. Mar. 19, 1998). 

 

The employer and insurer argue that the employee was not subject to work restrictions as a result of his injury, and refer to Dr. Ladd=s chiropractic records, Dr. Vorlicky=s medical reports and the surveillance evidence in support of their argument.  Dr. Ladd, who had assigned work restrictions between June and November 2006, released the employee to work without restrictions on November 15, 2006.  Dr. Vorlicky concluded that the employee could work without restrictions, at least as of his examination date of October 17, 2006.  In addition, the surveillance records in evidence, which were comprised of excerpts of surveillance conducted on May 31, June 1 and 6, 2007, showed activities which the employer and insurer contend demonstrated the employee=s physical capabilities and his ability to work.

 

The employee was initially assigned work restrictions by Dr. Satterlee, who examined the employee on June 21, 2006, and restricted the amount of lifting the employee could perform.  By June 28, 2006, the employee sought chiropractic treatment from Dr. Ladd, who restricted the employee=s work activities.  On November 15, 2006, Dr. Ladd advised that the employee could return to work without restriction, but he provided additional chiropractic treatment to the employee through January 19, 2007, and his chart notes reflect the employee=s reports of continued low back and radicular pain.  The employee consulted Dr. Stark on February 22, 2007, reporting continued low back pain and symptoms extending into his left lower extremity.  Dr. Stark referred the employee for a diagnostic corticosteroid injection; the employee reported limited improvement from his steroid injection. On March 13, 2007, after his follow-up examination of the employee, Dr. Stark advised that the employee could work within weight-bearing restrictions.  In his report of August 1, 2007, Dr. Stark advised that the employee=s condition could progressively worsen, and that he remained significantly restricted as a result of his work injury.  Dr. Stark determined that the employee could not sit for prolonged periods, and that his ability to lift and carry was limited, all which precluded active employment.

 

The employer and insurer argue that it was an error for the compensation judge to find that the employee had restrictions based on the absence of credible medical opinions.  We note that the record contains conflicting medical opinions on the issue of the employee=s ability to work following his injury.   The compensation judge reviewed the entire record, however, including the employee=s testimony and his medical records, in reaching her conclusion concerning work restrictions.  As noted by the compensation judge, the employee testified about the daily activities he was able to perform, and testified that he remained unable to perform the specific lifting activities associated with his former work as a server for the employer.  In her memorandum, the compensation judge determined that the employee Ais considered a credible witness and the medical records of Dr. Stark are an accurate representation of this employee=s problems and disability resulting from his work-related injury at the employer on May 6, 2006.@  A compensation judge may rely on the credible testimony of the employee to establish that the employee has a disability which limits the ability to work.  Brening v. Roto-Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975); Hanson v. Bagley Hardwood Prods., Inc., slip op. (W.C.C.A. Jan. 2, 2002).  Based on the medical records and testimony, the compensation judge could reasonably conclude that the employee=s ability to work was restricted as a substantial result of his work injury.

 

In response to the employer and insurer=s arguments that the surveillance evidence  negated the employee=s claims of residual disability, the compensation judge concluded that the activities shown on the DVD were not outside the restrictions and limitations the employee testified to, and that the surveillance did not demonstrate activities which are inconsistent with those noted in the medical records.  She also commented that the surveillance evidence did not establish that the employee was dishonest or disingenuous in his reported pain and complaints, and that the testimony from co-workers established that the employee was relied upon as an honest individual.  A determination of a witness=s credibility and the probative value of his testimony is in the purview and function of the compensation judge.  See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  In this case, the compensation judge considered the employee to be a credible witness, and concluded that he remained subject to work restrictions, a conclusion which we find to be supported by the record as a whole.  We therefore affirm the award of temporary total disability benefits from June 22, 2006, through June 7, 2007.

 

3.  Job Search

 

Finally, the employer and insurer argue that the employee failed to conduct a reasonable and diligent job search during the period for which he claims to be entitled to receive temporary total disability benefits.  The compensation judge rejected this argument as well.  She concluded that the employee=s testimony and his job search records, submitted into evidence, documented an adequate job search commencing in October 2006.  Although the employee continued to be employed by the employer between his injury in May and his termination in October, it was clear that he would not be scheduled for work until he had no restrictions.

 

Once he was terminated from his position with the employer, the employee began to seek other work, primarily in the restaurant and food service area.  By March 2007, the employee began working with a qualified rehabilitation consultant (QRC), underwent job seeking skills training, and, according to the QRC=s reports, met the job search goals outlined in the job placement plan and agreement.  The employer and insurer argue that the employee failed to make a good faith effort to participate in his rehabilitation plan, and that he withdrew from the labor market during those times when he spent a significant amount of time at the casino.

 

A diligent job search is one that is reasonable under all the facts and circumstances of a particular case.  See Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988).  In addition, once a rehabilitation plan has been developed for an employee, a compensation judge must consider whether an employee made a good faith effort in participating with the rehabilitation plan.  Mayer v. Erickson Decorators, 372 N.W.2d 729, 38 W.C.D. 107 (Minn. 1985).  Based on our review of the record, including the rehabilitation records and job logs in evidence and the employee=s testimony, we conclude that the record adequately supports the compensation judge=s conclusion that the employee=s job search was diligent.

 

B.  Surgery Claim

 

On appeal, the employer and insurer argue that substantial evidence does not support the compensation judge=s conclusion that the proposed sacroiliac fusion represents reasonable and necessary treatment for the cure and relief of the effects of the employee=s work injury.  They argue that the compensation judge erroneously relied on the expert medical opinion of Dr. Stark when approving the employee=s request for surgery.  The primary issue on appeal, therefore, is whether the evidence in the record substantially supports the compensation judge=s findings and whether the compensation judge=s approval of the proposed surgery was clearly erroneous.

 

An employer must furnish such medical and surgical treatment for a work-related injury Aas may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@  Minn. Stat. ' 176.135, subd. 1(a).  It is undisputed that the employee had experienced low back pain and had received treatment for that pain since his injury.  His medical records and testimony reflect his reports of ongoing symptoms.

 

The employee relies on the opinion of Dr. Stark, who concluded that the employee=s 2006 injury continues to be a substantial contributing factor to his ongoing back and leg pain.  The compensation judge accepted Dr. Stark=s opinion and found that the sacroiliac joint fusion, as proposed by him, was reasonable and necessary to cure and relieve the effects of the employee=s injury.

 

The employer and insurer argue that Dr. Stark=s opinion lacked foundation, and therefore the compensation judge=s reliance on his opinion rendered her finding as clearly erroneous and unsupported by substantial evidence of record.  The employer and insurer contend that Dr. Stark had an inadequate evidentiary basis for his opinion, in part because his notes and report include no reference to the employee=s second deposition in July 2007, to Dr. Vorlicky=s addendum reports, nor to any other medical records, and in part because Dr. Stark did not have the benefit of reviewing the surveillance videotapes nor a history of the amount of time the employee stood and sat while at the casino.  The employer and insurer also contend that no objective examination findings exist to support an award of surgery.

 

The competency of a medical expert to provide an expert opinion depends upon both the extent of the scientific knowledge of the expert and the expert=s practical experience with the matter that is the subject of the expert opinion.  Drews v. Kohl=s, 55 W.C.D. 33 (W.C.C.A.1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)).  There is no dispute as to Dr. Stark=s scientific expertise.  Rather, the employer and insurer=s arguments focus on his knowledge about the employee=s past medical treatment and his activities observed through surveillance.  Dr. Stark has examined the employee, has taken a history from him concerning his injury and symptoms, referred him for a diagnostic steroid injection, and, at the very least, has reviewed Dr. Vorlicky=s initial report and a transcript of the employee=s 2006 deposition testimony.  As a general rule, this level of knowledge is sufficient to afford foundation for the opinion of a medical expert.  See, e.g., Caizzo v. McDonald=s, 65 W.C.D. 378 (W.C.C.A. 2005).  The fact that Dr. Stark did not specifically refer to the employee=s previous medical treatment with various providers, nor to the other documents cited by the employer and insurer, does not render his opinions without foundation.  See, e.g., Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997).  These concerns go to the persuasiveness or weight to be afforded his medical opinion, but are insufficient to establish lack of foundation.  We therefore find no grounds for reversal on this basis.  Wacek v. Hy-Vee Food Stores, No. WC05-275 (W.C.C.A. June 5, 2006).

 

The compensation judge found Dr. Stark=s opinion to be more persuasive than that of Dr. Vorlicky.  We note that it is the compensation judge=s responsibility, as a trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).   In her memorandum, the compensation cited to the opinions of both Drs. Vorlicky and Stark.  She approved the surgery proposed by Dr. Stark, and explained the basis for her conclusion, as follows:

 

Dr. Stark has determined the lifting incident of May 6, 2006 has resulted in sciatic injury necessitating surgery.  The Compensation Judge has been presented with diverse medical opinions from two different physicians on the issue of medical causation and the extent of this employee=s personal injury and has given greater weight of the evidence to the opinions set forth by Dr. John G. Stark.  The court is persuaded by the opinion of Dr. Stark.  Dr. Stark=s opinion is persuasive in documenting and explaining the reasonableness and necessity of the fusion surgery proposed.  For this reason, this surgery has been approved.

 

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).  Based on our review of the record as a whole, we conclude that the record contains ample support for the compensation judge=s conclusion that the proposed surgery would be reasonable and necessary to cure and relieve the effects of the employee=s work injury.  Finding adequate evidentiary support for the judge=s conclusions, we therefore affirm the award of payment for medical expenses and approval of the surgery recommended by Dr. Stark.