THOMAS A. STEVENS, Employee/Cross-Appellant,
v.
AAA COOPER TRANSP. and CRAWFORD RISK MGMT. SERVS., Employer-Insurer/Appellants,
and
MN DEP'T OF LABOR & INDUS./VRU and MN DEP'TOF EMPLOYMENT & ECON. DEV., Intervenors.
No. WC04-247
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
May 3, 2005
HEADNOTES
EVIDENCE
- CREDIBILITY. Where the judge had implicitly concluded
that the employee's prior injuries played no significant
role in the employee's current condition, and where there
was evidence in the medical record to support the judge's
conclusion, the compensation judge's own
characterizations, in her memorandum, of the employee's
credibility as "suspect" and of his failures to
disclose his prior injuries as "misrepresentations"
were not held to constitute findings on credibility adverse
enough to the employee's claim to warrant reversal of the
judge's award of benefits stemming from a
Gillette-type injury.
CAUSATION
- GILLETTE INJURY. Where it was supported by
expert medical opinion, the compensation judge's
conclusion that the employee sustained a
Gillette-type injury as a result of her work was not
clearly erroneous and unsupported by substantial evidence,
notwithstanding the fact that the supporting medical opinion
may have been inconsistent with other medical opinion,
including the opinions of two of the opiner's colleagues.
CAUSATION
- PERMANENT AGGRAVATION. Where it was amply supported by
the employee's testimony, the medical records, and expert
medical testimony and opinion, the compensation judge's
determination that the employee's injury was a permanent
aggravation of the employee's pre-existing condition, for
which the employee was entitled to compensation for a 12%
permanent partial disability of the whole body, was not
clearly erroneous and unsupported by substantial evidence.
JOB
SEARCH; TEMPORARY TOTAL DISABILITY. Where, at the
beginning of trial, counsel for the employer did not identify
the absence of a job search as an issue for part of the
benefits period claimed, where he expressly admitted that
benefits were payable through that part of the period should
primary liability be found, where primary liability was
found, where the employer viewed the employee as being on a
medical leave and advised him that his job was open for him
until his leave expired, and where the employer was unable to
accommodate the employee's restrictions during the period
of that leave, the compensation judge's denial of
benefits for that part of the benefits period at issue on
grounds of a failed job search was clearly erroneous and
unsupported by substantial evidence, although the judge's
denial of benefits for the remainder of the period at issue
was affirmed.
REHABILITATION
- COOPERATION. Where the employee's QRC testified
that the employee cooperated with rehabilitation services
during the period at issue, the compensation judge's
award of temporary total disability compensation was not
clearly erroneous and unsupported by substantial evidence,
notwithstanding the fact that the employee may not have fully
met all of the QRC's expectations.
TEMPORARY
TOTAL DISABILITY. Temporary total disability benefits
cease ninety days after service of a medical report
indicating that the employee has reached maximum medical
improvement, and temporary partial disability benefit may be
paid only to an employee who is working; where the employee
reached ninety days post service of MMI on April 14, 2004,
and was not thereafter working, the compensation judge's
conclusion that the employee was not thereafter entitled
either to temporary total disability benefits or to temporary
partial disability benefits based on an imputed earning
capacity was not clearly erroneous and unsupported by
substantial evidence.
ATTORNEY
FEES - EDQUIST FEES. Where the judge determined
in a finding that the intervenor was entitled to
reimbursement from workers' compensation benefits payable
to the employee, the compensation judge's failure to
award an Edquist attorney fee to the employee's
attorney was apparently an oversight, and the judge's
decision was modified to grant to the employee's attorney
an Edquist fee of 20% of the benefits reimbursed to
the intervenor.
Affirmed
in part, reversed in part, and modified in part.
Richard J. Chadwick, Chadwick & Mertz, Chanhassen,
MN, for Cross-Appellant. David A. Schooler and Charles
A. Gross, St. Paul, MN, for Appellants.
Determined by: Pederson, J., Stofferahn, J., and Wilson, J.
Compensation Judge:Jane Gordon Ertl
OPINION
WILLIAM R. PEDERSON, Judge
The
self-insured employer appeals from the compensation
judge's finding of a Gillette-type
injury1 arising out of and in the course of
the employee's work for the employer on April 15, 2003,
and from the judge's consequent award of workers'
compensation benefits. The employee cross-appeals from
the judge's denial of his claim for temporary total
disability benefits between May 20, 2003, and December 1,
2003; from her denial of either temporary total disability
benefits or temporary partial disability benefits based on an
imputed wage subsequent to the employee's reaching ninety
days post maximum medical improvement [MMI] on April 14,
2004; and from the judge's failure to award an
Edquist attorney fee2 to the employee's
attorney for his work in obtaining reimbursement of
unemployment compensation benefits to the intervenor
Department of Employment and Economic Development. We
reverse the judge's denial of temporary total disability
benefits from May 20, 2003, to October 23, 2003, we modify
the decision to award an Edquist fee, and we affirm
the remainder of the judge's decision.
BACKGROUND
Thomas
Stevens has worked as an over-the-road truck driver for AAA
Cooper Transportation [the employer] since 1996. Mr.
Stevens [the employee] worked as a team driver, sharing
duties with a partner, primarily David Kruger. Job
duties included climbing in and out of the tractor cab,
hooking and unhooking the semi-trailer to the "fifth
wheel" of the tractor, performing pre-trip inspections,
and driving the semi-truck. When he was not driving, the
employee was sitting as a passenger or sleeping in the back
part of the cab. In the spring of 2003, the employee and
his partner were regularly driving a 1300-mile round trip
between Minneapolis and Pevely, Missouri. Most of this
route is freeway driving, with some surfaces rougher than
others and with some rhythmic vibration. During each
round trip, the employee spent nine to ten hours as a driver
and nine to ten hours as a passenger in the tractor
cab. Between April 13 and May 1, 2003, the employee made
ten trips to Pevely and back.
On
April 15, 2003, while on the fourth leg of a three-day trip
of almost continuous driving for the employer, the employee
noted the onset of pain in his right hip. Over the next
couple of weeks, the pain gradually worsened to include
radicular right leg pain down to his foot. On May 1,
2003, the employer had scheduled the employee for a trip to
Dallas, Texas, but the employee's condition had continued
to worsen and he had advised his employer that he would be
unable to make the trip. On April 15, 2003, the employee
was sixty-one years old and was earning a weekly wage of
$1,090.48.
On May
6, 2003, the employee saw Dr. Richard Freese at the Park
Nicollet Clinic with complaints of right hip and right leg
pain that he had been experiencing "for the past three
weeks." The employee advised Dr. Freese that he
worked as a long distance truck driver and that "he has
had radicular right leg pain radiating into his groin, down
below his knee and feels like it is in his
toes." Dr. Freese performed a physical examination
and diagnosed probable neurologic impingement of the L4
interspace. He scheduled an MRI scan, prescribed
physical therapy and medications, and restricted the employee
from long distance driving, "at least over the next
two-week period of time." Later that same day, the
employee called Dr. Freese indicating that he wished to have
his condition treated as a workers' compensation claim
with an April 15, 2003, date of injury. Dr. Freese noted
that "there [was] no single precipitating event,
although with him climbing in and out of his truck, loading
and unloading, it is certainly a reasonable assumption that
this was work-related." He concluded that "on
a more probable than not basis it probably is
work-related."
The
employee underwent a lumbar MRI scan on May 15,
2003. The scan was interpreted as showing a small to
moderate-sized central broad-based disk herniation at...
