Arneson v. Alexandria Extrusion, et al., No. WC15-5850 (WCCA March 18, 2016)
The employee in this matter appeals the compensation judge’s denial of her permanent total disability claim. On January 9, 2009 the employee, a machine operator, began experiencing pain in her mid-back, heaviness in her arms, and pain and numbness in her hands. The employer admitted liability for the thoracic spine injury. After additional symptoms in 2009, the employer denied liability for any cumulative injury. The employee field a claim petition for temporary total and temporary partial disability, which was litigated on March 3, 2010. The compensation judge determined that the employee sustained Gillette injuries to her cervical spine, thoracic spine, and bilateral wrists. There were no appeals from this decision.
On April 1, 2011 the employer filed a petition to discontinue benefits on the grounds that the employee reached MMI, the injury resolved, and that she could return to work with restrictions. The compensation judged denied this petition, stating the employee had not reaching MMI. No appeals were taken from this decision.
On July 16, 2012, the employee filed a claim petition for permanent partial disability benefits based on a June 26, 2012 report by Dr. Andrews. The employee also underwent a functional capacities evaluation on July 9-10, 2012, which demonstrated the employee was capable of obtaining a sedentary job of 4-5 hours per day, but not capable of sustaining competitive employment. The employee and employer settled the PPD claim.
On February 28, 2014, the employee’s QRC issued a report stating the employee was unable to maintain competitive employment, and was not employable for the foreseeable future. The employee filed a claim petition for permanent total disability benefits on March 28, 2014.
The employee underwent an IME with Dr. Zeller on November 6, 2014. Dr. Zeller stated that the strain-type injuries the employee was claiming should have already resolved and diagnosed the employee with fibromyalgia that was not related to her work injuries. Dr. Zeller also referenced the FCE, and interpreted its contents as stating deconditioning was the employee’s main reason the she was not capable of sustaining competitive employment. Dr. Zeller concluded that the employee was not permanently and totally disabled. The employee also underwent a vocational evaluation on April 14, 2015 with Ms. Lowe who stated the employee was employable within her local labor market, but would need reconditioning, training, and job search assistance.
The issues heard on May 20, 2015 were the nature and extent of the January 9, 2009 injury and whether the employee was permanently due to the work injury, with a PTD date of May 26, 2012. The compensation judge found that the employees January 9, 2009 injuries were resolved no later than July 10, 2012 due to the FCE emphasizing that the employee’s main limitation was deconditioning. The compensation judge stated the cervical and thoracic injuries were no longer a substantial contributing factor to the disability, the carpal tunnel syndrome resolved by July 2012, and the employee had not sustained a low back work injury. The compensation judge also found that the employee met the permanent partial disability threshold, and was totally disabled because of substantial limitations due to her pre-existing conditions that were exacerbated by smoking, inactivity, obesity, and migraines. The judge determined that the employee’s total disability was not permanent. The judge denied the claim for PTD benefits. The employee appealed this decision.
The employee argued that the compensation judge’s decision was not supported by Dr. Zeller’s IME report due to the judge stating the work injury was resolved on a different date than claimed in the IME report. The employee also argues that the IME report conflicts with previously unappealed findings, which stated the employee’s work injuries had not resolved. The WCCA clarified that the compensation judge relied on Dr. Zeller’s interpretation of the FCE, which viewed the employee as primarily limited by deconditioning, rather than on the dates in Dr. Zeller’s report. The WCCA determined that the judge was could reasonably rely on the IME and FCE in determining whether the work injuries had resolved, and whether restrictions were related to these work injuries. The WCCA determined that based on these findings, the judge’s determination that the employee’s work injuries were not substantial contributing factors to the employee’s disability was supported by substantial evidence in the record.
The employee also argues that the compensation judge erred in denying the PTD claim, since the QRC report and dr. Andrews’ opinion indicated she was not capable of sustained competitive employment. The WCCA notes that, the issue is not whether there is evidence in the record to support the employee’s position, but whether the compensation judge’s findings meet the Hengenmuhle standard of review since determinations of PTD are questions of fact. Here, the judge weighted the opinions of Dr. Zeller and Ms. Lowe as more persuasive than those of Dr. Andrews and the QRC, and is supported by substantial evidence in the record.