WILLIAM AHERN, Employee/Appellant, v. UNITED PARCEL SERV. and GALLAGHER BASSETT SERVS., INC., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 27, 2013
No. WC13-5597
HEADNOTES
TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Where the employee’s treating doctors and the IME released the employee to return to work without restrictions, substantial evidence supports the compensation judge’s decision allowing the discontinuance of temporary total disability benefits.
Affirmed.
Determined by: Stofferahn, J., Wilson, J., and Cervantes, J.
Compensation Judge: Kathleen Behounek
Attorneys: John P. Bailey, Bailey Law Offices, Bemidji, MN, for the Appellant. John T. Thul, Cousineau, McGuire & Anderson, Minneapolis, MN, for the Respondents.
OPINION
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that the employee was able to work without restrictions related to his work injury and from the resulting discontinuance of temporary total disability benefits. We affirm.
BACKGROUND
In June 2012, William Ahern began working for United Parcel Services (UPS) in Bemidji as a delivery driver in a seasonal/summer position.
The employee was injured in a motor vehicle accident on July 25, 2012, when the delivery van he was driving was rear-ended by another vehicle. Mr. Ahern was taken by ambulance to the local hospital and then transferred by air ambulance to Sanford Medical Center in Fargo, where he was hospitalized for four days. In the hospital, he was diagnosed as having sustained facial injuries, fractured ribs, a skull fracture with subdural hematoma, and a traumatic brain injury. He also had nerve damage that resulted in hearing loss in his right ear. When he was discharged, he was advised to seek follow-up care from a neuropsychologist and a physical medicine doctor.
On August 8, 2012, Mr. Ahern was seen by Dr. Susan Wood, a neuropsychologist at Sanford Medical Center Fargo. The employee told Dr. Wood that he had no cognitive problems but his wife reported that he had difficulty recalling details of conversations. Dr. Wood conducted numerous tests to assess the employee’s cognitive, emotional, and motor functioning. She concluded that the evaluation “evidenced impairment in visuospatial organizational/planning ability, problem solving, and fine motor skills in the left hand.” No specific treatment was prescribed, and Dr. Wood noted that she anticipated continued improvement in his condition. He was released to work part time, but compensatory strategies such as a using a calendar, planner, lists, and notes were recommended.
The employee was also referred for a physical medicine consultation, and saw Dr. Scott Fillmore on September 17, 2012. Mr. Ahern told the doctor that he had “some difficulty with ongoing memory and concentration, occasional headaches, some subtle balance issues continue. He has right ear dysfunction and hearing loss. He has noted some subtle mood changes, anxiety, fatigue. Does not feel that his coordination is the same.” The physical examination was generally within normal limits except for cranial nerve diminution associated with his right-sided hearing loss as well as difficulty with heel and toe walking. No treatment recommendations were made. Dr. Fillmore restricted the employee from lifting over 20 pounds, and advised him to sit or stand as tolerated, no work on ladders or above-ground, and four to six hours per day as tolerated. Dr. Fillmore also recommended a driving evaluation. When Dr. Fillmore saw the employee again on October 23, he restated the employee’s need for a driving evaluation, and also recommended that Mr. Ahern return to see Dr. Wood.
The driving evaluation was done on December 4, 2012, and the employee passed with no restrictions. Mr. Ahern also saw Dr. Wood on that date. He advised her that he was using a hearing aid and reported “mild memory problems such as misplacing items and persistent irritability.” A referral to “sleep medicine” was recommended to deal with his reported difficulty with “early awakening.” Dr. Wood concluded the employee’s cognitive functioning was within “normal limits. As compared to the previous evaluation, there was a significant improvement in the areas of visuospatial/organizational ability, divided attention and fine motor function using the left hand.” Dr. Wood stated that the employee had recovered “well from a cognitive standpoint from his traumatic brain injury.” Dr. Wood recommended a follow-up neuropsychological evaluation in nine months. Finally, Dr. Wood completed a “Sanford Health Certification of Health Care Provider” in which she indicated that the employee was capable of regular activity from a “cognitive standpoint.”
The employee also saw Dr. Fillmore on December 4. He reported,
Ongoing difficulty with memory, concentration, occasional headaches and subtle balance issues. Much of these improved, though he continues with some intermittent vertigo a few times a week, and then, he notes pretty much daily difficulty with regard to his sleeping, his right ear dysfunction hearing loss, normally has hearing aid for that. He had noted some subtle mood changes, anxiety, fatigue, does feel coordination is improving, but still not the same.
No abnormalities were noted in the examination other than the employee’s reported difficulty with concentration. Mr. Ahern was placed on medication for his insomnia but Dr. Fillmore opted to defer any medication for the reported vertigo. Dr. Fillmore concluded the appointment by noting, “He is cleared for full-duty, work regular activity beginning December 4, 2012.”
Based on Dr. Fillmore’s opinion, the employer and insurer filed a notice to discontinue the employee’s temporary total disability benefits. The employee requested an administrative conference, and after benefits were discontinued, he requested a formal hearing.
On April 4, 2013, the employee was evaluated on behalf of the employer and insurer by Dr. Thomas Beniak, a board-certified clinical neuropsychologist. Dr. Beniak reviewed Mr. Ahern’s records, administered tests to evaluate cognitive functioning, performed an examination, and wrote a 16-page report setting out his conclusions. He agreed with the treating doctors that Mr. Ahern had sustained a moderate traumatic brain injury in the July 25, 2012, motor vehicle accident. Dr. Beniak found no evidence of cerebral dysfunction to be reflected in the test results but noted there were some limitations in memory and perceptual organization. He stated that the employee had done “exceedingly well with regard to overall recovery of intellectual and cognitive abilities” but opined that he had not yet reached maximum medical improvement and would need to be evaluated sometime between 18 and 24 months after the injury to determine permanent partial disability. As to employment, Dr. Beniak concluded that “Based on Mr. Ahern’s many exceptional intellectual and cognitive tests outcomes, especially very superior verbal reasoning, it is my opinion that he is quite capable of full-time employment and managing regular work duties.”
At the request of his attorney, Mr. Ahern was evaluated by Dr. S. Ross Mangiamele, a physical medicine and rehabilitation specialist, on April 11, 2013. After his review of the medical records and his examination of the employee, Dr. Mangiamele diagnosed a moderate traumatic brain injury. Dr. Mangiamele was of the opinion that Mr. Ahern had chronic vertigo, headaches, and balance and gait deficits resulting from an injury to the frontal parietal lobe as well as cognitive deficits from the traumatic brain injury. Dr. Mangiamele stated the employee could not return to his pre-injury job at UPS and placed a number of restrictions on possible employment, generally related to the employee’s reported vertigo and memory problems. He also concluded “it is important that he avoid any tasks that present an appreciable risk of further head trauma such as traversing icy terrain or slippery surfaces.”
Mr. Ahern saw Dr. Fillmore again on April 16, 2013. Dr. Fillmore noted that he “had still some difficulty with concentration, irritability, and subtle balance issues, which he notes today mostly with ladder climbing. He has some intermittent vertigo. He also has some right hearing deficits. He has been followed in the past and has been given a hearing aid for that.” Dr. Fillmore stated the employee “was cleared for full duty.” He noted that the employee “has concerns about that” and stated “in order to get him more objective picture as to what he can and cannot do, a formal functional capacity evaluation would be recommended.” Dr. Fillmore referred the employee to the occupational health clinic for the evaluation but there is no indication in the record that this evaluation was ever done.
Mr. Ahern was 58 years old at the time of his injury. He grew up in New York, graduated from high school in 1971, and joined the Army in 1974 where he served as a military police officer, medical technician, and ambulance operator. While he was in the Army, Mr. Ahern was in a motor vehicle accident that resulted in a concussion. He left the Army in 1980 and completed college, receiving a bachelor’s degree in business administration in 1982. He worked for a time in retail sales and management and then relocated to Oregon in 1986. He was employed for 20 years as a corrections officer and counselor for Multnomah County. In 2006, he moved to Minnesota and was employed by Beltrami County as an assistant jail administrator until March 2012. He was then employed through a temporary agency until he began at UPS.
After the 2012 injury, the employer told the employee he would not be returning to his seasonal job at UPS and Mr. Ahern was assigned a QRC. The QRC began working with Mr. Ahern in September 2012 and had not yet begun placement before rehabilitation services were discontinued in January 2013. The rehabilitation reports indicate the employee returned to work through Search Resources of Bemidji in December 2012 at Potlatch Industries in quality control. There is no evidence in the record as to the nature or physical requirements of this job. The employee testified at the hearing that he stopped working in February because of a medical problem being experienced by his daughter and the need for him to take care of her. He testified, however, that he was ready to return to work as of the date of the hearing, but stated that in his opinion he was limited in employment by his positional vertigo and did not believe he was capable of performing his pre-injury job at UPS.
An evidentiary hearing was held on May 22, 2013, before compensation judge Kathleen Behounek. In her findings and order issued June 18, 2013, the compensation judge determined that “the preponderance of the evidence shows that the employee has been capable of working without restrictions due to the effects of the work injury since December 4, 2012 and that the employer and insurer have demonstrated reasonable grounds to discontinue temporary total disability benefits.” (Finding 9). The employee has appealed the discontinuance of his benefits to this court.
DECISION
Temporary total disability benefits cease when the employee “has been released to work without any physical restrictions caused by the work injury. Minn. Stat. §176.101, subd. 1(h). In her decision, the compensation judge determined that, based on the opinions of Drs. Wood, Fillmore, and Beniak, the preponderance of the evidence showed that the employee was capable of working without restrictions. As a result of that determination, the compensation judge concluded that reasonable grounds existed for the employer and insurer to discontinue temporary total disability benefits.
On appeal, the employee argues that substantial evidence, when considering the record as a whole, does not support the compensation judge’s decision. The employee raises a number of points in making this argument.
First, the employee states that the opinions of the doctors relied on by the compensation judge are contrary to the employee’s testimony at the hearing. The employee testified that he continues to have symptoms from his work injury which result in restrictions that would prevent him from returning to unrestricted employment, including his pre-injury job at UPS. The employee argues that he is more familiar with the work he did at UPS than are the doctors and he is in the best position to know if his injury continues to restrict his employability.
As the employee notes in his brief, we have recognized that the testimony of the employee alone, even without a supporting medical opinion, may serve as the basis for a compensation judge’s finding that the employee is disabled and entitled to disability benefits. Santiago-Clemente v. Alside Supply Ctr., No. WC12-5534 (W.C.C.A. April 16, 2013); Hiller v. Parker Hannifin, No. WC04-198 (W.C.C.A. Dec. 14, 2004). However, those decisions do not require the compensation judge to accept the employee’s opinion as to employment restrictions. An employee’s testimony is part of the evidence to be considered by the compensation judge and a compensation judge may adopt all, some, or none of the employee’s testimony as to restrictions and employability. The employee contends here that because the compensation judge did not challenge the employee’s credibility in any of her findings, the employee’s testimony must be accepted. However, the question here is not one of credibility but is whether the employee’s opinion as to his ability to work is or is not persuasive when considering the other evidence on this issue.
The employee’s argument equates his symptoms with physical restrictions, an equivalency not supported by the evidence. There is no dispute that the employee has not fully recovered from his work injury and continues to have symptoms related to that injury, particularly memory problems and intermittent positional vertigo. All of the doctors who provided opinions in this case were aware of the employee’s continuing symptoms and the doctors relied upon by the compensation judge were of the opinion that these symptoms would not prevent the employee from returning to full, unrestricted duty. While the employee might disagree with those medical opinions, it is the function of the compensation judge to consider the evidence and make factual determinations based on that evidence. The opinions of the employee’s treating doctors and Dr. Beniak were based on adequate foundation and the compensation judge did nor err in relying on those opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
Finally, the employee argues that his traumatic brain injury means that any future head injury is likely to be more severe and disabling. For that reason, the employee urges acceptance of Dr. Mangiamele’s opinion that the employee should avoid “traversing icy terrain or slippery surfaces.” According to this argument, avoidance of those hazards should be considered a restriction in employability which would allow continuing temporary total disability benefits. We do not question the underlying premise that a future head injury could have serious results for the employee, possibly worse than for someone without his medical history. However, traversing icy terrain and slippery surfaces is an ordinary activity of daily life in Minnesota for a substantial part of the year and is not a restriction in employment.
After careful review of the record, we conclude the compensation judge’s decision is supported by substantial evidence and must be affirmed. Minn. Stat. §176.421, subd. 1.