Sanden v. Northern Contours and RTW, Inc. and the Work Connection

Sanden v. Northern Contours and RTW, Inc. and the Work Connection, No. WC13-5631 (May 13, 2014)

The employee had a neck injury in 1996 with Northern Contours.  Subsequently, she had a low back injury in 2007 with The Work Connection, which eventually required a fusion surgery performed by Dr. Sunny Kim.

Following the surgery, she was able to work in a light duty position, but by 2011 her condition worsened and Dr. Kim took her off of work.  Dr. Kim recommended additional medical treatment, including a spinal cord stimulator impact to treat the employee’s chronic pain. The employee did not pursue Dr. Kim’s treatment recommendations.   The employee was also referred to a pain clinic program, which was approved by the employer and insurer, but she did not pursue that treatment either.

She underwent a functional capacity evaluation (FCE) in October 2011.  She was able to tolerate sedentary part-time work for four hours per day and could use her upper extremities with good bilateral hand strength and coordination.  She could also tolerate sitting with lumbar support, could stand or walk up to one hour a day, and could do minimal lifting. Dr. Rick Davis performed an IME in October 2012. He believed the employee was capable of working within the restrictions identified in the FCE and was at maximum medical improvement.

In March 2012, the employer offered the employee a part-time administrative assistant position for four hours per day at an hourly rate of $13.75 per hour and indicated it would accommodate restrictions.  The employee did not accept the job offer.  

The employee filed an amended claim petition against both employers, seeking permanent total disability benefits and an additional 10 percent permanent partial disability.

After a hearing, a compensation judge determined employee did meet the statutory threshold for permanent total disability under Min. § 176.101, subd. 5, but was not permanently and totally disabled.  The WCCA affirmed, noting that the judge’s decision would not be disturbed under the standard of review in workers’ compensation cases established under Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

Under the Hengemuhle standard, the compensation judge was free to accept a medical opinion reasonably supported in the evidence.  In this case, the judge accepted the IME doctor’s opinions and determined the employee was capable of working within the restrictions of the FCE. The judge pointed out that since the FCE, no job search had taken place. Moreover, the employee turned down a job offer from the employer after the FCE restrictions and release to return to work were in place. Additionally, the compensation judge adopted the opinion that future medical care and treatment, which the employee chose not to pursue, would have improved her condition and functional abilities. This was consistent with recommendations from several of the employee’s treating doctors.