RICHARD D. HOPKINS, Employee,
v.
ROAD EQUIPMENT PARTS CTR. and EMC INS. COS., Employer-Insurer/Appellants.
No. WC08-262
Minnesota Workers Compensation
Workers’ Compensation Court of Appeals
July 30, 2009
HEADNOTES
REHABILITATION
- WORK RESTRICTIONS; TEMPORARY TOTAL DISABILITY - WORK
RESTRICTIONS. Substantial evidence, including the
employee’s testimony and the reports and records of the
employee’s treating physician, support the compensation
judge’s finding that the employee continues to have
physical restrictions related to his work injury.
JOB
OFFER - PHYSICAL SUITABILITY. Substantial evidence supports
the compensation judge’s determination that the job
offered by the employer to the employee in June 2008 was not
clearly within the employee’s physical restrictions as
established by his treating physician and was not consistent
with the rehabilitation plan.
JOB
SEARCH; REHABILITATION - COOPERATION. Where the
employee’s rehabilitation plan called for a return to
work with the employer, full duty, pending medical clearance,
the employee cooperated with rehabilitation assistance, and
there was no evidence that an outside job search was required
as part of the plan, the compensation judge did not err in
finding that the employee’s lack of a job search prior
to August 18, 2008, did not bar receipt of temporary total
benefits from June 17 through September 16, 2008.
MEDICAL
TREATMENT & EXPENSE - REASONABLE & NECESSARY.
Substantial evidence supports the compensation judge’s
finding, accepting the recommendation of the employee’s
treating physician, that a functional capacities evaluation
(FCE) was reasonable and necessary.
Affirmed.
Raymond R. Peterson, McCoy, Peterson & Jorstad,
Minneapolis, MN, for the Respondent.
Laura
L. Myslis, Gislason & Hunter, Minneapolis, MN, for the
Appellants.
Determined by: Johnson, C.J., Pederson, J., and Stofferahn,
J.
Compensation Judge: Nancy Olson
OPINION
THOMAS
L. JOHNSON, Judge
The
employer and insurer appeal from the compensation
judge’s findings that the employee has physical
restrictions as a result of his October 2, 2007, personal
injury; that the employee did not unreasonably refuse the
employer’s June 13, 2008, job offer; and that the
employee’s lack of an outside job search does not bar
the receipt of temporary total disability benefits. The
employer and insurer also appeal the judge’s award of
payment for a functional capacities evaluation. We affirm.
BACKGROUND
Richard
D. Hopkins, the employee, worked as a diesel mechanic for
Road Equipment Parts Center, the employer, repairing semi
tractors and trailers. On October 2, 2007, the employee was
removing a clutch pedal assembly from a semi truck, wedged
underneath the steering wheel of the cab, between the seat
and the pedals. While pulling on the clutch pedal he felt a
pop or pull in the low back with an immediate onset of low
back pain. The employer and insurer admitted liability for a
personal injury in the nature of a lumbar strain/sprain.
The
employee was seen at Now Care Medical Center the following
day. A lumbar strain was assessed. He was given ibuprofen and
was released to return to work with light-duty restrictions.
The employee returned for follow-up on October 8. On
examination, Dr. Michael Cowen noted tenderness to palpation
along the right paraspinal musculature and midline spine with
limited range of motion. The doctor assessed an acute
lumbosacral strain, prescribed a different anti-inflammatory
medication and a muscle relaxant, and provided work
restrictions. Dr. Cowen observed the employee was going to
work each day but was sent home by the employer because of
his restrictions. In follow-up on October 15, the employee
reported no improvement and was having spasms with pain and
tightness in the back. He was referred for physical therapy
and was again released with work restrictions. On October 29,
the employee was taken off work and referred to Dr. William
Lohman, an occupational medicine specialist.
When
seen by Dr. Lohman on November 7, the employee reported
constant low back pain, rating the pain as 8 out of 10, and
stated he was having considerable difficulty sleeping due to
spasms in his back during the night. On examination, Dr.
Lohman noted spasm and tenderness in the paralumbar muscles
and tenderness over the lumbar spine with moderate limitation
of motion due to pain. Dr. Lohman assessed mechanical low
back pain due to soft tissue injury, continued physical
therapy, and prescribed a muscle relaxant and Vicodin as
needed for severe pain. The doctor provided restrictions of
no lifting over 20 pounds and no repetitive or sustained
bending. Dr. Lohman noted the employer would not accommodate
restrictions and the employee had been off work since the
injury.
The
employee completed 22 physical therapy sessions and was seen
in follow-up by Dr. Lohman on November 28 and December 19,
2007. The employee continued to experience significant back
pain, particularly with lifting activities. The
employee’s restrictions were continued with maximum
lifting increased to 35 pounds. Physical therapy was
discontinued and the employee was referred for an MRI scan.
The scan, completed on December 24, 2007 showed
Scheuermann-like changes with multi-level disc dehydration
and degeneration.
In
December 2007, the employer’s insurance carrier, EMC
Insurance Companies, referred the case to CorVel Corporation
for a rehabilitation consultation. Aaron Schenck, a qualified...
