JAMES H. MELIN, Employee,
v.
LAKEHEAD CONSTRUCTORS and ST. PAUL INS. COS., Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
August 26, 2003
HEADNOTES
TEMPORARY
TOTAL DISABILITY - MEDICALLY UNABLE TO CONTINUE; TEMPORARY
BENEFITS - FULLY RECOVERED; STATUTES CONSTRUED - MINN. Stat.
§ 176.101, SUBDS. 1(e)(1) and 1(e)(2). Where, on the
date of the commencement of the 2000-2001 benefits period at
issue, the employee had apparently been repeatedly back to
work since his 1997 work injury, was currently on layoff from
work, was not medically unable to perform any work, and was
clearly over ninety days post his 1998 MMI, the compensation
judge's award of temporary total disability benefits was
clearly erroneous under Minn. Stat. § 176.101, subds. 1(e)(1)
and 1(e)(2), notwithstanding the fact that the employee may
have been anticipating surgery related to his work injury.
TEMPORARY
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; EARNING CAPACITY -
SUBSTANTIAL EVIDENCE. Where the employee found light
duty work for a month while he awaited surgery and for a
month following his convalescence from that surgery, and
where the employer did not during that time offer the
employee alternative higher paying work, substantial evidence
supported the compensation judge's conclusion that the
employee's imminent surgery and his continuing recovery
from that surgery sufficiently restricted the employee to
overcome the employer and insurer's argument that the
employee could have been working at higher-paying backhoe
tasks such as he was able to perform prior to his work
injury.
TEMPORARY
TOTAL DISABILITY; REHABILITATION - COOPERATION; STATUTES
CONSTRUED - MINN. Stat. § 176.101, SUBDS. 1(e)(1) and
1(e)(2). Where the compensation judge found expressly
that the employee did not conduct a reasonably diligent job
search and where the judge nevertheless awarded the benefits
at issue based solely on an express but erroneous conclusion
that the employee was under and cooperated with a statutory
rehabilitation plan during the period at issue, substantial
evidence did not support the compensation judge's award
for that portion of the period during which the employee was
not subject to a rehabilitation plan, but substantial
evidence did support the award for the remainder of the
period, and Minn. Stat. § 176.101, subds. 1(e)(1) and
1(e)(2), did not apply to preclude that award, given that the
employee remained restricted by his work injury and had not
yet reached a second MMI consequent to injury-related
surgery.
Affirmed
in part and reversed in part.
Determined by: Pederson, J., Johnson, C. J., and Rykken, J.
Compensation Judge: Donald C. Erickson
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from the compensation judge's
awards of temporary total and temporary partial disability
benefits and from various subordinate findings supportive of
those awards. We affirm in part and reverse in part.
BACKGROUND
On
March 26, 1997, James Melin sustained a work-related injury
to his neck while pulling on a cable in the course of his
employment as a heavy equipment operator with Lakehead
Constructors, for whom he had worked exclusively since
January 8, 1995. Mr. Melin's job with Lakehead
Constructors [the employer] normally entailed the operation
of various heavy, earth-moving machines such as backhoes,
bulldozers, forklifts, jib cranes, and pay loaders, and he
was frequently subject to lay-offs during seasons of frozen
ground. On the date of his injury, Mr. Melin [the
employee] was fifty-one years old and was earning a weekly
wage of $731.60. He was subject to no work restrictions
on that date, and, although he had been briefly treated for
neck stiffness in the past, he was not currently being
treated for any neck-related condition.
The
employee notified the employer of the injury, and about a
month later, on April 25, 1997, he sought treatment at the
Ashland Clinic, where he was diagnosed with a likely disc
herniation at C7-T1, prescribed anti-inflammatories, and
restricted for a week from working. He subsequently
sought treatment also from chiropractor Craig Gilbaugh, who
several times restricted him temporarily from working and
eventually ordered an MRI scan. The scan, conducted June
19, 1997, was read to reveal a small disc herniation at C6-7,
a mild disc bulge and peridiscal spurring at C5-6, mild to
moderate foraminal stenosis also at C5-6, and an annular
bulge at T1-2. Dr. Gilbaugh referred the employee to
neurologist Dr. David McKee, who conducted an EMG and in turn
referred the employee to neurosurgeon Dr. Richard
Freeman. Dr. Freeman examined the employee on July 30,
1997, and ordered a myelogram with CT scan, which evidently
revealed bilateral neural canal narrowing at C5-6 and C6-7,
and on August 20, 1997, Dr. Freeman restricted the employee
from working and prescribed medication and physical therapy.
The
employee ultimately remained off work for about two months,
and on October 24, 1997, Dr. Freeman, prescribing continued
heat, massage, ultrasound, and cervical traction
treatments, released him to return to work on a trial
basis, indicating that he was "not to do any overhead
work like on a crane and he is not to do any dozer
work."1 On November 4, 1997, the employee
returned to work for the employer on a brief light-duty
project doing clean-up work with a payloader and an excavator
and thereafter on two projects in North Dakota, mostly
operating a backhoe. On January 29, 1998, Dr. Freeman
issued a Health Care Provider Report, on which he indicated
that the employee had reached maximum medical improvement
[MMI] on October 25, 1997, stating that the employee was
"not to do any overhead work like on a crane. No
dozer work." The employee was laid off from
employment with the employer about the end of February 1998,
when the North Dakota project ended. On March 10, 1998,
he was served with Dr. Freeman's January 29, 1998, report
of MMI, and on May 6, 1998, Dr. Freeman issued a Health Care
Provider Report in which he rated the employee's
work-injury-related permanent partial disability at 12% of
the whole body, pursuant to Minn. R. 5223.0370, subp. 4D(1).
Over
the course of the following three years, from early 1998
until late 2000, the employee continued to complain to Dr.
Freeman of neck symptoms, including symptoms apparently
stemming from an assault on the job back in December of 1997,
and he continued to be periodically off work, for reasons
including a heart attack suffered in April 1998 and various
lay-offs from his work for the employer and other
employers, during which the employee availed himself of
unemployment compensation. Along the way, on October 15,
1998, the employee underwent another cervical MRI scan, which
was read to reveal disc space narrowing with some desiccation
at C5-6 and C6-7, together with broad-based disc
herniation/annular bulging at both levels, and on October 28,
1998, Dr. Freeman recommended "midline corpectomy at C6
with discectomies at C5-6 and C6-7 and a strut graft
autogenous fusion from C5 to C7." Any cervical
surgery was apparently postponed indefinitely, however, to
accommodate surgery instead for carpal tunnel release
bilaterally, in February and March 1999. Further EMG and
MRI studies late in 1999 were found by Dr. Freeman to reveal
no significant change in the employee's condition since
October 1998, but another EMG in November of 2000 suggested
to Dr. Freeman that the employee's condition had worsened
since 1998. On December 13, 2000, Dr. Freeman concluded
that, "[b]ased on his EMG findings and his known MRI
assessment, [the employee] would appear to be a candidate at
this time for an anterior cervical discectomy, decompression
and fusion at C6-7." Dr. Freeman's surgical
recommendation was supported in a second opinion by...
