DANIEL DRIGGINS, Employee/Appellant, v. MIDWEST SPECIALTY MAINT. and SECURA INS. COS., Employer-Insurer/Respondents.

The employee, Daniel Driggins, worked as a general laborer for Midwest Specialty Maintenance for ten years. On January 16, 2014, while lifting a 150 - 200 pound scrub machine with a co-worker, the employee injured his low back and neck. The employer and the workers’ compensation carrier, Secura Insurance, admitted liability and paid workers’ compensation benefits.

The employee had previously claimed a work related low back injury in the early 1990s. The employee testified that the 1990s injury was short-lived and resulted in only three weeks of wage loss. Before the employee’s January 16, 2014, injury, he was not restricted from any activity, he was able to perform his job, and he felt no low back or neck pain.

The day after the injury, the employee treated with Dr. Orrin Mann complaining of low back pain and minimal neck pain. Dr. Mann restricted the employee from work, and in March 2014 ordered MRI scans of the low back and neck. The MRI scan of the low back revealed multilevel mild to moderate degenerative spondylosis at the L5-S1 level without definite evidence of nerve root compression or significant spinal canal stenosis. The MRI scan of the neck revealed effacement across the ventral thecal sac at multiple levels with bulging discs and spurring. The employee received intermittent temporary total disability (TTD) beginning on January 17, 2014, as well as intermittent temporary partial disability (TPD) beginning on February 2, 2014.

Dr. Thomas J. Raih, an orthopedic surgeon, examined the employee as part of an independent medical examination for the employer and insurer on two separate occasions and issued two separate reports. In the first report, dated September 17, 2014, Dr. Raih opined that the MRI scans of the low back and neck reflected primarily degenerative changes. He diagnosed the employee’s condition as pre-existing multilevel degenerative cervical disc disease without radiculopathy. He also diagnosed multilevel degenerative lumbar disc disease. Dr. Raih noted that the employee had a somewhat exaggerated non-physiologic response to examination, but Dr. Raih also noted that the employee had restricted motion of his low back. He concluded that the low back symptoms are a combination of pre-existing degenerative disc disease and a temporary aggravation caused by the January 16, 2014, incident. He also concluded that the employee had pre-existing multi-level degenerative cervical disc disease that is not related to the January 16, 2014, incident.

Dr. Mann reviewed Dr. Raih’s September 2014 report and wrote on October 3, 2014, that, “I do not have a strong argument with Dr. Raih’s discussion regarding the neck or the low back.” Both doctors agreed that the rehabilitation program at Physician’s Neck and Back Clinic (PNBC) would help improve the employee’s symptoms. Both doctors also agreed that the employee’s pain complaints were disproportionate to objective findings.

The employee showed significant improvement in his symptoms after undergoing the recommended course of treatment at PNBC. There, the employee attended 24 sessions until his release on January 29, 2015. At that time, Dr. Margaret Spartz provided restrictions of no lifting over 30 pounds. Dr. Mann examined the employee on February 3, 2015, and assigned permanent restrictions of no lifting over 25 pounds, opined that the employee had reached maximum medical improvement (MMI), and assigned a zero percent permanent partial disability rating. Dr. Mann noted that the employee “obviously has preexisting degenerative disease in his spine” and that the employee’s pain was “out of proportion.”

After reviewing additional medical records and conducting another examination of the employee, Dr. Raih submitted his second report dated March 17, 2015. He again opined that the employee’s injuries to the neck and low back were degenerative in nature and not related to the employee’s January 16, 2014, work injury. He agreed with Dr. Mann that that the employee had reached MMI as of February 3, 2015, with a zero percent permanent partial disability rating. And like Dr. Mann, Dr. Raih also restricted the employee to 25 pounds lifting.

Based on Dr. Raih’s report, the employer and insurer filed a Notice of Intention to Discontinue Benefits (NOID) on March 24, 2015, seeking to discontinue the employee’s TPD benefits. The employer and insurer maintained that the employee was no longer entitled to TPD because his need for restrictions was not related to his work injury.

The employee filed a claim petition on April 30, 2015, seeking TPD from March 16, 2015, to the present and continuing, and penalties. The parties appeared for a hearing on December 15, 2015. The employee argued that the January 16, 2014, injury represented a permanent aggravation of a pre-existing degenerative condition. He argued that before his work injury, he had no restrictions and no low back and neck pain, but after his injury, he was permanently restricted for his low back pain and suffered wage loss.

In a Findings and Order filed January 29, 2016, the compensation judge awarded wage loss benefits through March 24, 2015, but denied the remainder of the employee’s claim. The judge found the employee’s testimony regarding his symptoms and inability to work unreliable. She concluded that the evidence failed to demonstrate that the employee’s disability and wage loss were a result of his January 16, 2014, work injury. The employee appeals the denial of TPD benefits.

On appeal, the Workers’ Compensation Court of Appeals must determine whether “the 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 (2014). Substantial evidence supports the findings if, in the context of the entire record, “they 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). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

“[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers’ Compensation Court of Appeals] may consider de novo.” Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

On appeal, the employee argues that the compensation judge erred in finding that the employee was not entitled to TPD benefits beyond March 24, 2015. The employee experienced no low back or neck pain, had no restrictions, and suffered no lost wages prior to his January 16, 2014, work injury, but was given permanent restrictions and suffered lost wages following the work injury. According to the employee, this clearly establishes that his need for restrictions and wage loss are due to the work injury, and not to the pre-existing degenerative disc disease. The employer and insurer respond that the compensation judge’s findings that the employee failed to carry his burden to prove his entitlement to TPD are well-founded and supported by overwhelming evidence. We agree.

It has long been established that an employee seeking TPD must prove four factors outlined in Dorn v. A.J. Chromy Constr. Co., 245 N.W.2d 451, 29 W.C.D. 86 (Minn. 1976).

1.   The employee sustained a work related injury resulting in disability.
2.   The employee suffered a loss of earning capacity that is causally related to the work related disability.
3.   The employee is able to work subject to the disability; and
4.   There is an actual loss of earning capacity.

The judge denied ongoing TPD because she found the employee’s testimony regarding his disability unreliable and because she found Dr. Raih’s opinion that the employee had no work related disability as persuasive. In support of her findings, she also relied upon Dr Mann’s medical records which showed that the employee displayed pain behaviors out of proportion to examination findings. Dr. Mann noted marked pain behavior with whistling, grimacing, and groaning that was hard to coincide with the imaging and physiology. The employee is correct in stating that he had no formal restrictions before the January 16, 2014, work injury, and was restricted to 25 pounds after it. What is important in establishing TPD is not the coincidental nature of restrictions to the injury, but rather the evidence taken as a whole. Dr. Raih agreed that the employee’s pain behavior was out of proportion with objective findings. Both Dr. Mann and Dr. Raih noted that the employee had significant degenerative changes. Both doctors opined that the employee required lifting restrictions. Dr. Raih attributed these restrictions to the underlying degenerative condition. Dr. Mann’s opinion did not contradict the opinion of Dr. Raih. On the evidence presented, it is unclear whether Dr. Mann attributed these restrictions to the January 16, 2014, injury or to the employee’s degenerative condition.

In this matter, we will not disturb the compensation judge’s conclusion that the employee’s testimony regarding his disability was unreliable. As a general rule, questions of credibility of the witnesses are matters reserved to the finder of fact and reviewed by this court on the basis of the substantial evidence standard. Even v. Kraft, 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Likewise, we will not disturb the judge’s choice of medical expert opinion where there is adequate foundation to support it and it is supported by the record. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Dr. Raih’s opinion that the work injury was temporary, had resolved, and that the need for ongoing restrictions was due to the underlying degenerative condition is supported by the record as a whole. In the absence of medical evidence to the contrary, the employee did not meet his burden of proof in establishing a disability related to his work injury. By failing to establish a work related disability, the employee did not meet the requirements for ongoing TPD under Dorn.