REX G. MUGGLI, Employee,
v.
MARVIN WINDOWS, SELF-INSURED/HELMSMAN MANAGEMENT SERVS., Employer/Appellant,
and
BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
March 10, 1999
HEADNOTES
TEMPORARY
PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Where there
was expert medical opinion that the employee was subject to
permanent physical restrictions related to his work injury,
and where the compensation judge reasonably concluded that
the employee's request for transfer to a lesser paying
and lighter duty job at the employer was not unrelated to the
employee's work injury and that the employee was unaware
of the potential consequences of his transfer request on his
entitlement to benefits, the compensation judge's award
of temporary partial disability benefits was not clearly
erroneous and unsupported by substantial evidence.
Affirmed.
Determined by Pederson, J., Hefte, J., and Wheeler, C.J.
Compensation Judge: William R. Johnson.
OPINION
WILLIAM R. PEDERSON, Judge
The
self-insured employer appeals from the compensation
judge's award of temporary partial disability
benefits. We affirm.
BACKGROUND
The
employee, Rex G. Muggli, sustained an admitted work injury to
his back on February 9, 1995, while working as an
over-the-road truck driver for Marvin Windows, which is
self-insured against workers' compensation
liability. At the time of injury, Mr. Muggli [the
employee] was thirty years old and earning an average weekly
wage of $808.52. Mr. Muggli had worked for Marvin
Windows since 1984 and as a truck driver since 1987. The
injury occurred while the employee was unloading a shipment
of windows in Connecticut. While pushing a large window
out of the truck's trailer, he slipped and bent his back
backward. The employee reported the injury, completed
his trip, and sought medical treatment when he returned to
Minnesota.
The
employee was seen by Dr. Randy Rice at the Baudette Clinic on
February 13, 1995. At that time the employee complained
of upper lumbar and lower thoracic pain, with a "little
bit" of pain in the neck as well. Dr. Rice removed
the employee from his truck driving duties, recommended
restrictions that included changing positions every
forty-five to sixty minutes, and prescribed Ibuprophen and
Norflex, with the caution not to use Norflex when
driving. The employer accommodated the employee's
restrictions with light duty work in the plant, eventually in
the "grids department," where he worked at
constructing the wooden dividers that are used in French
doors and windows, which generally weighed less than a pound
apiece. After a brief regimen of physical therapy
without improvement, the employee was referred to osteopath
Dr. Michael Clark on March 13, 1995. Dr. Clark ordered
x-rays that revealed compression fractures at T10 and
T11. On March 30, 1995, a bone scan was performed and
interpreted as being consistent with healing compression
fractures in these two vertebrae. During April and May
1995, the employee received additional physical therapy, a
back brace, and manipulation by Dr. Clark, without
significant relief.
On May
23, 1995, the employee was seen in neurosurgical consultation
by Dr. Stuart Rice1 at the Grand Forks Clinic. At
that time, the employee complained of persistent mid and
lower back pain, as well as left leg pain and some
paresthesias in his upper extremities. His principal
complaint, however, was severe mid back pain that was sharp
and stabbing, generally worse when changing
positions. Dr. Stuart Rice's impression was severe
mid back pain secondary to traumatic T10 and T11 fractures,
severe left leg pain with possible S1 radiculopathy,
bilateral upper extremity paresthesias, and mild left upper
extremity weakness. Additional thoracic spine films
taken on that date were interpreted by the radiologist as
showing wedging deformities in the T10 and T11 vertebrae,
with each having lost about 33% of its anterior vertical
height. Dr. Stuart Rice also recommended an MRI of the
lumbar spine and a neurologic evaluation that would include
an EMG and nerve conduction studies.
On June
13, 1995, the employee underwent an MRI scan of the lumbar
spine, including the T11 level. The scan was essentially
normal, except for evidence of the compression fracture at
T11. On June 23, 1995, the employee was seen in
consultation by neurologist Dr. Nader Antonios, also at the
Grand Forks Clinic. Complaints to the neurologist
included continuous neck pain, mid back pain, and low back
pain. The employee informed the doctor that, during the
preceding six weeks, his neck pain had radiated to his left
upper arm and his left upper arm had felt
"tired." He also reported experiencing
intermittent tingling and numbness of the second and third
digits of the left hand. His mid back pain was not
radicular, but his low back pain went to his left hip and
down to his left knee, with intermittent tingling and
numbness of his left thigh. Dr. Antonios administered
nerve conduction studies and an EMG of the left upper
extremity, which were interpreted as "totally
unremarkable." The doctor recommended neurosurgical
re-evaluation to address the need for an MRI scan of the
cervical spine and the need for a CT scan of the T10 and T11
areas, to rule out the possibility of bony fragments in the
spinal canal.
An
additional MRI examination of the employee's lower
thoracic spine on July 22, 1995, revealed anterior
compression of the T10 and T11 vertebrae, with slight
posterior disc bulging at the T10-T11 level. There was
no evidence of central spinal stenosis, disc herniation,
neural impingement, or displaced fracture fragment. The
employee continued to be followed by Dr. Randy Rice
throughout the summer, who encouraged the employee to push
himself and his activity level in spite of the pain. The
employee reported ups and downs in his symptoms. On
August 1, 1995, Dr. Rice added "adjustment disorder with
depressed mood" to his diagnosis and prescribed Elavil
for the pain and depression. On August 24 the doctor
concluded that "somewhat of a chronic pain
syndrome" was also part of the picture. During this
period of time, the employee was also being treated by Dr.
David Verworn at the Warroad Chiropractic Clinic...
