DOUGLAS M. KATZ, Employee/Respondent, v. TELCOM CONSTR. and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and LANDMARK SURGERY CTR., SUMMIT ORTHOPEDICS, and LON LUTZ, M.D., Intervenors.

OCTOBER 2, 2017

No. WC17-6059

MAXIMUM MEDICAL IMPROVEMENT – SUBSTANTIAL EVIDENCE. Substantial evidence, including the employee’s medical record, supports the compensation judge’s finding that the employee had not reached maximum medical improvement from his compensable work injury.

JOB SEARCH – SUBSTANTIAL EVIDENCE. Lack of job logs did not demonstrate a failure to diligently search for employment where testimony of employee and employee’s spouse identified job search efforts and the employee obtained part-time employment within restrictions.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: William J. Marshall

Attorneys: David W. Blaeser, Blaeser Law Office, Woodbury, Minnesota, for the Respondent. Joseph G. Twomey, Hansen, Dordell, Bradt, Odlaug & Bradt, P.L.L.P., St. Paul, Minnesota, for the Appellants.




The employer and insurer contend that substantial evidence does not support the compensation judge’s credibility determinations, his findings on maximum medical improvement, and the findings on the employee’s job search. The employee maintains that the compensation judge’s decision was supported by substantial evidence, and therefore must be affirmed on appeal. As the determinations made by the compensation judge largely rely on credibility determinations and those determinations are consistent with the hearing record, we affirm.


The employee, Douglas Katz, worked a variety of laboring jobs before starting work with the employer, Telcom Construction, in November 2015, as a driver and machine operator. Typically, the employee would run machinery, dig trenches, and pull cable on job sites. He had a prior low back injury which was resolved with surgery in 1998. The employee maintained that he did not have any neck or shoulder symptoms prior to May 5, 2016.

The employee had helped a friend open a resort over the first few days of May 2016. This activity involved light cleaning and housekeeping. The employee returned to his work at Telecom Construction on Wednesday, May 4, 2016. On Thursday, May 5, 2016, the employee was pulling cable over his right shoulder when he felt a burning, tearing sensation in his neck and right shoulder. The employee complained of pain in that area when riding with a coworker later that day. The employee did not immediately report the injury as a work injury. The following day, the employee experienced soreness, but was able to work. The employee did not indicate to his coworkers that he had an injury at work on May 5, 2016. The employee experienced numbness, tingling, and pain in his neck and shoulder while away from work on the weekend.

On Monday, May 9, 2016, the employee was examined at Summit Orthopedics. The employee described the symptoms as beginning at work, but also as a non-workers’ compensation injury. Imaging showed decreased joint space in the cervical spine at C3-C4. The employee was taken off of work. Conservative care and an MRI were ordered. The employee called the employer and told the administrative assistant that the employee would not be at work due to an injury. The administrative assistant described the employee as identifying the injury as occurring at home and that it was not a work injury.

On May 10, 2016, the employee underwent an MRI which showed large central and foraminal disc extrusion on the right side at the C6-C7 level. On May 12, 2016, the employee informed the administrative assistant that the injury was a work injury. When she informed the employee that there were forms to be completed regarding the injury, he indicated that he would get that done later. On Friday, May 13, 2016, the employee was contacted by a supervisor and told that the employee needed to report for urinalysis testing that afternoon. The employee was being driven by a friend to Hudson, Wisconsin, to pick up the employee’s vehicle that had been in for service. The employee assessed the traffic as too bad to allow him to get to the testing location before it closed as that was the weekend of the fishing opener. The employee was told that failing to report for the testing could be grounds for dismissal.

On Monday, May 16, 2016, the employer completed an absence report for the employee indicating that the employee was excused from work from May 9 through May 12. The employer directed that the employee add a personal note as to the reason for absence. The employee wrote that he assumed all responsibility for his neck-herniated disk injury “for a non work event related.”[1] The employee believed that by stating the injury was not a work injury that he would not be terminated from employment. The employee had also been told that workers’ compensation coverage for the claimed injury “would probably be refused.”[2]

On May 24, 2016, Lon Lutz, M.D. conducted a successful injection to temporarily relieve the employee’s neck pain. Dr. Lutz described the employee’s symptoms as secondary to a work injury suffered on May 5, 2016. The employee underwent continued conservative treatment, involving steroid injections and physical therapy, which the employee suggested had plateaued by September 27, 2016. The notes of the physical therapist consistently indicated that the employee “would continue to benefit from skilled physical therapy intervention, as maximum medical improvement is yet to be obtained.” The October 25, 2016 treatment notes of PA-C Anthony Sterk with Summit Orthopedics indicate that an injection is to be followed up to determine if the employee is “trending towards improvement.”[3] The employee was subsequently diagnosed with a right shoulder partial rotator cuff tear also attributed to the May 5, 2016 work injury.

The employee had restrictions arising from the May 5, 2016, work injury that the employer could not accommodate. The employee followed up on the possibility of light duty work with the employer in late May. The employer did not expressly indicate that the employee was terminated from employment or could not return to his job at some later time. The employee assessed himself as incapable of even light duty work through July 2016. The employee was prospectively released to medium duty work effective July 6, 2016. On July 18, 2016, the restrictions were revised to light duty. With no contact from the employer, the employee began looking for work.[4] The employee did not keep job logs to document his search activities. In August 2016, the employee’s restrictions were continued for light duty work. In October 2016, the employee found part-time work installing furnaces. At the time he found this job, the employee was restricted to part-time work, no more than five hours per day, and no lifting over 10 pounds, and later, 40 pounds.

On October 27, 2016, the employee underwent an independent medical examination (IME) conducted by Randall J. Norgard, M.D., at the request of the employer and insurer. Dr. Norgard diagnosed the employee as having suffered a cervical sprain/strain arising out of the May 5, 2016, work injury and a right upper trapezius strain from the same incident, both of which had resolved. Dr. Norgard relied on the employee’s description of the injury occurring at work for this opinion. The only continuing care assessed as reasonable by Dr. Norgard was a home stretching program to strengthen the employee’s neck combined with over-the-counter anti-inflammatory medication. Dr. Norgard attributed any continuing restrictions to the employee’s preexisting cervical degenerative disc disease and degenerative joint disease. Dr. Norgard opined that the employee was at maximum medical improvement (MMI) and no permanent partial disability (PPD) rating was appropriate.

The employee filed a claim petition seeking temporary total disability (TTD) benefit payments from May 9, 2016, onward, payment of out of pocket medical expenses, and a consultation for rehabilitation services. The matter came on for hearing before Compensation Judge William Marshall. The employee, his spouse, and a number of coworkers testified. The focus of the testimony was the employer and insurer’s contention that the employee did not suffer an injury while on the job. The employee explained his note asserting that the injury was not work related as an effort to keep his job.

The compensation judge found that the employee had suffered a work injury on May 5, 2016. The judge expressly found the employee’s testimony to be credible regarding the work injury and regarding the employee’s subjective belief that he would be fired if he described the injury as happening at work. The judge found that the employee believed he was still employed until mid-July 2016, and conducted a reasonable job search from mid-July through October 2016. The employee’s part-time job was found to be consistent with the employee’s medical limitations, and therefore no further job search was required. The judge awarded wage loss benefits, found that the employee was not at MMI, and resolved several intervenor interests. The judge issued an amended order to clarify the holding on MMI. The employer and insurer appealed.


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.”[5] 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.”[6] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[7] 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.”[8]

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.[9]



Work Injury Determination

The employer and insurer maintain that the compensation judge erred by finding the employee to be credible in claiming that his injury occurred at work. This contention appears to be based on the number of times the employee had denied that his injury happened at work or failed to avail himself of the opportunity to claim that the injury happened at work. The employee points out that the record contains evidence from the employee, his spouse, and a coworker that supports the employee’s contention that the injury occurred at work while engaged in work activity.

Credibility determinations are the province of the trial judge and are not disturbed by this court, unless manifestly contrary to the evidence.[10] In this matter, the employee gave contradictory statements regarding the origin of his injury. The employee testified that he initially denied the work injury because he feared losing his job if he indicated that his injury occurred at work. As the compensation judge accepted the employee’s testimony regarding the circumstances of the work injury as credible and there is no objective evidence that contradicts the employee’s testimony describing the events surrounding the work injury, the determination of a work injury is supported by substantial evidence.

Maximum Medical Improvement

The employer and insurer contend that the compensation judge’s conclusion that the employee has not yet reached MMI is unsupported by substantial evidence. The employer and insurer rely on the IME opinion of Dr. Norgard, and the absence of a recommendation for surgery in support of this argument. The employee’s medical record contains one reference, made by the employee, that his progress in physical therapy had plateaued. The same medical records contain consistent statements by the physical therapist, subsequent to that reference, that the employee was not at MMI and would benefit from additional treatment.

Where conflicting medical evidence exists, the compensation judge must choose between competing medical opinions and generally a decision based on that choice will be affirmed if the opinions relied upon have adequate foundation.[11] The compensation judge noted that interruption of treatment was for economic reasons. The compensation judge’s conclusion regarding MMI is a reasonable inference from the employee’s medical records. Substantial evidence supports the compensation judge’s determination on the issue of MMI.

Adequate Job Search

The employer and insurer argue an adequate job search is a condition for receiving TTD benefits and that the employee did not sustain his burden to show that such a search was made. The employee was kept off of work until July 6, 2016, due to an injury determined by the compensation judge to be a compensable work injury. As the employee was not medically released to work, TTD benefits are payable from May 9 to July 6, 2016, without reference to any job search.

The compensation judge found, and the record supports, the employee’s belief that he remained employed with the date-of-injury employer until mid-July 2016. It was not unreasonable for the compensation judge to conclude that no job search was required since the employee reasonably expected to return to a position with the employer.[12] The award of TTD benefits from July 6, to mid-July 2016, is supported by substantial evidence. From mid-July 2016, onward, the employee was required to make a diligent job search as a requirement for an award of TTD benefits.[13]

Whether an injured employee has made a reasonably diligent job search is a question of fact for the compensation judge “which must be upheld unless manifestly contrary to the evidence.”[14] There is testimony from the employee and his spouse concerning the specifics of the job search conducted from mid-July onward. The employee found part-time work that was within his work restrictions. This is evidence that is consistent with the compensation judge’s determination.

The employer and insurer assert that employee’s failure to maintain job logs shows that a diligent job search was not made. The absence of job logs can support a conclusion that a job search was inadequate, but does not require that conclusion.[15] The lack of job search logs goes to the weight of the evidence, which the judge found to favor the employee. Substantial evidence supports the compensation judge’s determination regarding the award of TTD benefits and this court affirms that determination.

[1] Ex. 6.

[2] Tr. Vol. 1 at 56-58.

[3] Ex. A.

[4] There is reference to a QRC in the employee’s testimony and several medical records, but no exhibits or testimony indicate that a Rehabilitation Plan had been prepared.

[5] Minn. Stat. § 176.421, subd. 1(3).

[6] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[7] Id. at 60, 37 W.C.D. at 240.

[8] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[9] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

[10] See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

[11] Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Smith v. Quebecor Printing, 63 W.C.D. 566 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003).

[12] See Sherman v. Clem’s Constr., slip op. (W.C.C.A. Oct. 16, 2003) (citing Goss v. Ford Motor Co., 55 W.C.D. 316 (W.C.C.A. 1996), summarily aff’d (Minn. Oct. 18, 1996)); Lundberg v. Bemidji Ambulance Serv., slip op. (W.C.C.A. May 22, 1998).

[13] Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).

[14] Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987).

[15] See Sampson v. Forest Lake Dist. Mem’l Hosp., No. WC09-184 (W.C.C.A. Nov. 10, 2009) (job logs not a requirement for receipt of economic benefits); Groth v. Ryan Contracting Co., No. WC05-291 (W.C.C.A. Jun. 5, 2006) (no logs and no job contacts identified, job search inadequate); Gustafson v. Dynamic Structural Steel, LLC, No. WC08-220 (W.C.C.A. Mar. 26, 2009) (no logs but specific testimony regarding search, job search adequate); Tschudi v. Lakewood Entm’t., No. WC11-5248 (W.C.C.A. Oct. 19, 2011) (no logs but ample testimony regarding search, job search adequate).