PATRICIA ERICKSON, Employee,
v.
MISSION FARMS and AMERICAN COMP. INS./RTW, Employer-Insurer/Appellants,
and
FAIRVIEW and the INSTITUTE FOR ATHLETIC MEDICINE, Intervenors.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
April 6, 1999
HEADNOTES
TEMPORARY
BENEFITS - SUBSTANTIAL EVIDENCE. Substantial evidence,
including medical opinion, medical records and the
employee's testimony about her symptoms and work duties,
supported the compensation judge's determination that the
employee continued to be partially disabled and under medical
restrictions related to her work injury during the period for
which benefits were sought.
JOB
SEARCH - SUBSTANTIAL EVIDENCE. While the employee's
job search did not begin for about two weeks after she lost
her job with the employer, and involved only about ten to
fifteen hours of active job search activities per week, we
cannot say that the search was so perfunctory that the
compensation judge committed clear error in determining that
the job search was minimally adequate to support the award of
benefits.
EARNING
CAPACITY - SUBSTANTIAL EVIDENCE. The presumption of
earning capacity from actual post-injury earnings was not
rebutted by a greater income offered by the employee's
pre-injury job where the compensation judge found that the
employee was unable to perform this job without restrictions
and the employer would permit the employee to work in the job
only without restrictions.
Affirmed.
Determined by Pederson, J., Johnson, J., and Hefte, J.
Compensation Judge: Cheryl LeClair-Sommer
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from an award of temporary
benefits and from the compensation judge's findings that
the employee sustained a loss of earning capacity related to
her work injury with the employer, that the employee did not
refuse an offer of gainful employment within her
restrictions, that the employee conducted a reasonably
diligent job search for certain periods, and that the
employer and insurer failed to rebut the presumption of
earning capacity arising from the employee's actual
post-injury wages. We affirm.
BACKGROUND
The
employee, Patricia Erickson, then age 49, began working for
Mission Farms, the employer, as a nursing home housekeeper in
October 1995. Her duties included vacuuming, dusting,
mopping, and cleaning bathrooms. The job required
considerable bending and stooping and occasional lifting of
mop buckets and moving of beds and nightstands. In
October 1996 the employee began to experience shooting pains
in the low back at work, particularly when performing
repetitive bending and stooping. (T. 21-24.)
She was
seen medically for her low back pain on December 18, 1996 by
Dr. G. S. Watkins, M.D. at the Camden Physicians
clinic. On examination, the employee was noted to have
tenderness over the lumbar region from L3 to L5 along the
paraspinous muscles. Her back range of motion was full,
straight leg raising was negative, and there were no sensory
deficits. She was diagnosed with an acute work-related
lumbar strain and taken off work until December 23, after
which she was released to return to work with limitations
which included a 20-pound limitation on lifting, pushing and
pulling. The employee was restricted from any squatting,
kneeling or reaching below the knees, and twisting, turning
and reaching above the shoulders was limited to three times
per hour. (Joint Exh. 1: 12/18/96.)
In
unappealed findings, the date of injury has been determined
to be December 18, 1996, when the employee was taken off work
by Dr. Watkins. The employee's weekly wage on the
date of injury was $318.23 and the employee reached and was
served with notice of maximum medical improvement on February
2, 1998, with the report of Dr. Elmer
Salovich. (Findings 1, 2 and 4 [unappealed].)
The
employee continued under the care of Dr. Glenn Schiffler at
Camden Physicians through February 13, 1997, when he
recommended that the employee be referred to a specialist
because of the chronicity of her symptoms. She remained
medically restricted in her work duties throughout the period
of treatment with Dr. Schiffler. (Joint Exh. 1: 12/30/96
- 2/13/97.)
The
employee began treating with Dr. Brian T. O'Neill, M.D.,
at Northwest Orthopedic Surgeons, P.A., on March 3, 1997, and
Dr. O'Neill remained the employee's treating
physician through the date of hearing, July 28,
1998. Dr. O'Neill continued the employee on similar
work restrictions to those which had been in effect under Dr.
Schiffler, although the employee was now permitted occasional
squatting, kneeling and bending. The employee underwent
12 sessions of physical therapy at the Institute for Athletic
Medicine in March and April 1997. She made some progress
in her symptoms and Dr. O'Neill loosened the restrictions
slightly on April 21, 1997, allowing frequent, rather than
occasional kneeling and balancing. (Exh. C: 3/3/97 -
4/21/97; Joint Exh. 4.)
On May
16, 1997, the employee reported to Dr. O'Neill that she
was not doing well and that her back pain was now radiating
into the buttock area. On examination, straight leg
raising caused some buttock pain, and the employee's
lumbar range of motion was mildly diminished. Dr.
O'Neill thought that the employee's back pain was
probably mechanical in origin, but considered it advisable
that a lumbar MRI scan be performed. The MRI was
performed on June 6, 1997 and revealed mild bilateral facet
arthropathy at the L4-5 and L5-S1 levels with mild
ligamentous hypertrophy. On June 11, 1997, when seen by
Dr. O'Neill to review the MRI results, the employee
reported that her symptoms had remained similar, with low
back pain radiating into the buttocks. Low back range of
motion was still mildly restricted on examination. Dr.
O'Neill recommended that the employee be evaluated for
facet injections. (Exh. C: 5/16/97 - 6/11/97 chart
notes, 6/6/97 MRI report.)
The
employee was seen at Minnesota Anesthesiology Pain
Specialists by Dr. David Schultz, M.D., on June 17,
1997. The employee reported that the strenuous duties in
her housekeeping job were difficult and were aggravating her
pain. Dr. Schultz noted that the employee exhibited
significant tenderness to palpation over the bilateral
paraspinous musculature and lumbosacral region. Straight
leg raising was negative...
