PEGGY BURRICHTER, Employee/Appellant, v. UNIPATCH MEDICAL SUPPLIES and AIG admin=d by SEDGWICK CLAIMS MANAGEMENT SERVS., Employer-Insurer/Cross-Appellants, and MAYO FOUNDATION, Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 10, 2002
CAUSATION - SUBSTANTIAL EVIDENCE; PRACTICE & PROCEDURE - FINDINGS OF FACT. While a compensation judge must assure that findings of fact are detailed, specific and sufficient to enable meaningful review, as a general rule a compensation judge is not required to refer to or discuss in the findings and order every piece of evidence introduced at the hearing. In this case, the judge had the benefit of testimony describing and discussing the reports at issue, thus we cannot conclude the judge failed to consider the evidence or failed to appropriately apply the burden of proof in finding a causal relationship between the employee=s asthma and her employment.
TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that any loss of earnings by the employee from March 19 through May 22, 2000 was not the result of her work injury, but was related to a reduction in the hourly wage rate that was established prior to the employee=s personal injury.
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Where the employee was subject to restrictions which precluded a return to her pre-injury job, and the employer and insurer offered no evidence to rebut the presumption that the employee=s earnings with a new employer were representative of her post-injury earning capacity, the compensation judge=s denial of temporary partial disability benefits must be reversed.
Affirmed in part and reversed in part.
Determined by: Johnson, C.J., Wilson, J., and Rykken, J.
Compensation Judge: Ronald E. Erickson
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s denial of temporary partial disability benefits from March 19 through May 22, 2000 and from August 7, 2000 through February 25, 2001. We affirm in part and reverse in part. The employer and insurer cross-appeal from the compensation judge=s finding that the employee=s asthma was causally related to her employment. We affirm.
Peggy Burrichter, the employee, began working for UniPatch Medical Supplies, the employer, in May 1997. Initially, the employee worked as an assembler and then moved to the packaging department in August 1997. She was promoted to the position of lead operator in 1998. Initially, the employer made medical electrodes used in performing electrocardiograms. At some point, the employer also began making freezable gel packs. In June 1999, the employer completed a new building and the gel pack function was transferred to the new building. The employee=s job as a lead operator in the packaging department was also moved to the new building. The packaging department was adjacent to the gel pack area and the employee generally worked within about 50 feet of the gel pack area. The building in which the employee worked was a large open room with no barriers between the employee and the gel pack area.
Ammonium nitrate and urea were two of the chemicals that were placed in the gel packs. Two machine operators operated the gel pack machines which drew the ammonium nitrate and urea into the hopper of the machine by a vacuum hose. Dust was generated by the filling process which the employee could see from her work station in the packaging department and powder would fly into the air from the machine. The employee testified the chemicals would react with the moisture in the air and cause a sticky residue to form on the floor. The residue then spread in the building from people walking through the gel pack area. A Material Safety Data Sheet (MSDS) stated ammonium nitrate A[m]ay cause irritation to the respiratory tract; symptoms include coughing, sore throat, and shortness of breath.@ (Pet. Ex. C.) The MSDS recommended a system of local and/or general exhaust to keep employee exposures as low as possible and prevent dispersion of the ammonium nitrate into the general work area. The MSDS stated urea also may cause irritation to the respiratory tract resulting in symptoms including coughing and shortness of breath. A study of 67 workers in an environment with high airborne concentrations of urea found a high incidence of moderate emphysema and chronic weight loss. As with ammonium nitrate, the MSDS recommended local exhaust ventilation to prevent dispersion of urea into the general work area. (Pet. Ex. C.) In an unappealed finding, the compensation judge found both ammonium nitrate and urea Aare known to have a potential to cause irritation to the respiratory tract and coughing, sore throat and shortness of breath.@ (Finding 6.)
The employee was seen at St. Elizabeth=s Hospital in Wabasha, Minnesota, on July 18, 1998, complaining of upper chest pain and burning throat with increased reflux. She reported significantly increased stress at work. The doctor diagnosed reflux and diagnosed Prilosec. The employee was hospitalized at St. Elizabeth=s Hospital in Wabasha, Minnesota, on March 11, 1999. Her chief complaint of left-sided numbness and sharp substernal chest pain which took her breath away. Dr. Joseph V. McGrath diagnosed chest pain, acute bronchitis and hospitalized the employee to rule out a myocardial infarction. She was discharged on March 12, 1999, with a diagnosis of bronchitis and chest pain with no evidence of heart attack.
At the end of August or the first part of September 1999, the employee first noticed shortness of breath, especially when she was climbing stairs or hills and pains and heaviness in her chest. On February 14, 2000, the employee again noted heaviness and pains in her chest and shortness of breath while at work. She reported the symptoms to her supervisor, Barbara Passe, but continued working. On March 7, 2000, the employee saw Dr. Joseph McGrath at the Wabasha Clinic complaining of shortness of breath and heaviness in her chest. The doctor apparently prescribed Albuterol, a bronchodilator. Dr. McGrath referred the employee to Dr. Loren Hunt of the Division of Allergic Diseases, Department of Internal Medicine at the Mayo Clinic. The employee saw Dr. Hunt on March 17, 2000. She denied prior allergic symptoms or any history of asthma and complained of chest tightness, intermittent chest pain and shortness of breath with an increase of coughing three weeks before. The employee told the doctor she felt these symptoms were work-related. She provided the doctor with a history of exposure to ammonium nitrate and urea at work with treatment with Albuterol, which relieved her symptoms. Dr. Hunt diagnosed probable work-related asthma and bronchitis symptoms with mild rhinitis. The doctor prescribed Flovent and instructed the employee to continue use of the Albuterol. The doctor ordered a chest x-ray and pulmonary function tests.
The employee returned to see Dr. Hunt on March 31, 2000. She told the doctor she had been moved from her former work area into a Aclean-air area, but according to the diagram she has shown me, she needs to go into the open former work environment to get to this office and needs to come in and out of the office several times a day. At times if the door to this area is left open, she will occasionally have some residual chest tightening and coughing, although not nearly as severe as before.@ (Pet. Ex. D.) The doctor reported the employee=s chest x-ray was negative but the pulmonary function tests showed some mild obstruction. Dr. Hunt noted, however, there were no previous pulmonary function tests with which to compare and stated the mild obstruction might be an old finding. The doctor also noted the employee had approximately a 25-pack-year smoking history but had not smoked since 1987. The employee further reported her chest had gradually felt better over the past two weeks and her peak flow rates showed a gradual upward trend to what the doctor felt was, on March 31, 2000, probably normal. A repeat pulmonary function test was unchanged and a methacholine challenge test was positive. The diagnosis remained an occupationally related mild asthma. Dr. Hunt recommended the employee be removed from the building unless she could avoid exposure to her former work area and prescribed continued use of Albuterol and Flovent.
At some point, the employee took Dr. Hunt=s restrictions to Diane Schjolberg in the employer=s human resources department. The employee was then assigned to the quality assurance area for a week. She then returned to the building where she had previously worked where she worked on electrodes in a sterile glassed-in room. She testified, however, the doors to the room had spaces which allowed air to enter. She also had to walk through the factory area to get to the clean room. The employee worked in the clean room for about three weeks and testified she continued to have symptoms during that time. Thereafter, the employee was moved to an office area off the break room. She had no problems in this area until the air conditioning system started up and she again experienced symptoms. Effective April 4, 2000, the employee=s wage rate was reduced from $9.07 an hour to $8.27 an hour. On May 22, 2000, the employee left her job and the employer placed the employee on short-term disability.
By report dated May 26, 2000, Dr. Hunt stated the employee could return to work with restrictions of avoidance of fumes or gasses from manufacturing in her work area. Within these restrictions, the doctor opined the employee could work full-time. On July 31, 2000, the employee returned to see Dr. Hunt who noted the employee had gradually made an excellent recovery and exhibited normal pulmonary function. A methacholine challenge test showed gradual improvement. The doctor noted the employee felt fairly well as long as she stayed away from provoking factors although she had some difficulty going in and out of hot, humid weather and had difficulty with exposure to certain irritants. The doctor opined the employee could work subject to restrictions of exposure to any irritant fumes or dust and prolonged exposure to hot weather and humidity. The doctor recommended the employee continue the Albuterol as-needed, continue regular exercise and avoid triggering exposures. The doctor diagnosed resolving industrial induced asthma.
On June 8, 2000, representatives of the Occupational Safety and Health (OSHA) Division of the Minnesota Department of Labor and Industry came, unannounced, to the employer=s plant in Wabasha, Minnesota, apparently in response to a complaint filed by the employee. Jim Siewert, then the safety inspector for the employer, met with the OSHA inspectors and provided them with copies of the MSDS reports. The OSHA representatives then inspected the plant. On June 30, 2000, Mr. Siewert met with Todd Lousine, an industrial hygiene engineer from OSHA. In a written report, Mr. Siewert recorded that Mr. Lousine did not find any evidence of potential hazards to employees in the chemical or spraying process and concluded there was adequate ventilation in the gel pack area. (Resp. Ex. 2.) By letter dated July 7, 2000, Alden Hoffman, the director of the OSHA management team wrote to the employee stating the alleged hazardous conditions were investigated and discussed with representatives of the management of UniPatch. Mr. Hoffman stated there were Ano violations of standards or regulations observed at the time of this investigation.@ (Resp. Ex. 2.)
Prior to June 8, 2000, Mr. Siewert contracted with Liesch Companies to perform air tests in the employer=s plant in Wabasha, Minnesota. On June 14, 2000, Liesch Companies conducted tests to determine employee inhalation exposures to ammonium nitrate and urea. On that date, the gel pack operation used urea from 6:00 a.m. to 11:00 a.m. and used ammonium nitrate from 11:00 a.m. until the end of the shift. In general, the tester noted no airborne dust or odors during observation of the operation. Liesch concluded the June 14th sampling showed no measurable total dust or nitrate was present in the gel pack or assembly areas. The report concluded the AGel Pack operation does not present any exposure hazard to personnel anywhere in the building. It is only logical to then believe that adjacent building areas have less potential exposure.@ (Er. Ex. 3.)
On July 26, 2000, the employee was examined by Dr. William F. Schoenwetter at the request of the employer and insurer. The doctor took a history from the employee, reviewed her medical records and conducted an examination. Allergy skin tests showed a strongly positive reaction to house dust mites. Spirometry testing was similar those tests recorded at the Mayo Clinic on March 31 and May 26, 2000. These tests, the doctor concluded, showed no evidence of any significant improvement with absence from work or asthma treatment. A methacholine challenge test was, the doctor stated, within normal limits. Dr. Schoenwetter concluded although the employee=s symptoms were consistent with possible asthma, together with work associated symptoms that improved with absence from the workplace, the doctor found no objective findings or measurement to permit a diagnosis of occupational asthma. The doctor also found it difficult to understand that any exposure to the alleged chemical agents in the workplace would account for the employee=s symptoms. Dr. Schoenwetter further reviewed the air quality monitoring sample report prepared by Liesch Associates, which reported no measurable total dust or nitrate during eight hours of sampling. The doctor further considered a report by OSHA. The doctor testified the Agold standard@ for the diagnosis of asthma was a positive methacholine challenge, which the employee did not meet. He concluded he had no explanation for the employee=s reported asthma-like symptoms and stated the failure of the employee to show any definite improvement between the spirometry test on March 17, May 26 and July 26, 2000 supported his conclusion. Rather, the doctor felt a potential contributing factor to the employee=s condition was house dust mites which would reach their maximal exposure during the December through March heating season.
The employee returned to see Dr. Hunt on July 31, 2000. She told the doctor she felt she was pretty much back to normal but had some difficulty with hot, humid weather. The doctor diagnosed resolving industrial induced asthma and restricted the employee from exposure to any irritant fumes or dust and avoiding going in and out of high temperatures and humidity. The employee last saw Dr. Hunt on December 21, 2000 and stated her asthma has subsided except if there=s a weather change or she is exposed to cold air. A repeat pulmonary function test showed little change in the employee=s spirometric values. The doctor diagnosed industrial-related asthma with no symptoms at the present time.
The employee resigned her job with the employer effective August 7, 2000. She obtained a job as a manager at a bakery delicatessen which she started on August 7, 2000. The employee continued to work at this job as of the date of hearing and testified she had no symptoms except when the weather was humid, wet, cold or snowy.
The employee filed a claim petition in May 2000, alleging a Gillette-type personal injury on March 7, 2000, and claiming intermittent temporary total and temporary partial disability benefits. The employer and insurer denied the employee sustained an injury and denied any liability for benefits. In a Findings and Order filed November 1, 2000, the compensation judge found the employee sustained a personal injury in the nature of asthma on or about March 7, 2000. The parties stipulated to a weekly wage of $377.72. The compensation judge awarded temporary total disability benefits from May 22 through August 6, 2000. The judge denied the employee=s claim for temporary partial disability benefits from March 19 through May 21, 2000, and from August 7, 2000 through February 25, 2001. The employee appeals the denial of temporary partial disability benefits and the employer and insurer cross-appeal from the compensation judge=s finding that the employee=s asthma was causally related to her employment.
1. Personal Injury
The employer and insurer contend the compensation judge=s finding that the employee=s asthma was caused by her employment is unsupported by substantial evidence. They contend the judge erroneously applied the preponderance of the evidence standard set forth at Minn. Stat. ' 176.021, subd. 1a, because the judge failed to address any of the evidence presented by the employer and insurer. Specifically, they contend the judge failed to consider the July 18, 1998 medical record of St. Elizabeth=s Hospital, the report of Dr. Schoenwetter, the OSHA report and the Liesch report. Accordingly, the employer and insurer assert the causation finding of the compensation judge must be reversed. We are not persuaded.
As a general rule, a compensation judge is not required to refer to or discuss in the findings and order every piece of evidence introduced at the hearing. Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000). However, the compensation judge must scrupulously assure that the findings of fact are detailed, specific and sufficient to enable meaningful review. Northwest Publications, Inc. v. Anderson, 259 N.W.2d 254 (Minn. 1997). Further, findings of fact should include as many of the subsidiary facts as are necessary to disclose to the appellate court the basis upon which the compensation judge reached the ultimate conclusions. Woodrich Constr. Co. v. State, 177 N.W.2d 563 (1970). In making factual findings, the compensation judge must weigh the evidence, determine the credibility of witnesses, decide contested matters, rely on stipulated or undisputed facts and draw appropriate inferences.
The medical report of Dr. Schoenwetter and the tests performed by OSHA and Liesch were facts of such significance and controversy that they should have been the subject of a factual finding. In this case, however, the judge=s failure to make specific findings does not mandate a reversal or a remand. Jim Siewert, the employer=s safety inspector, testified about his meetings with the OSHA representatives and the air tests conducted by the Liesch Companies. Diane Schjolberg, the employer=s director of human resources, also testified about the tests performed at the plant by OSHA and Liesch. Ms. Schjolberg testified she received and reviewed Dr. Schoenwetter=s report. Thus, in addition to submission of the exhibits, there was testimony before the compensation judge concerning the reports of Dr. Schoenwetter, OSHA and Liesch Companies. Thus, while the compensation judge failed to make findings specifically addressing this evidence, we cannot conclude he failed to consider it. Accordingly, we conclude the compensation judge did not fail to appropriately apply the burden of proof under the facts of this case, and affirm the finding of a causal relationship between the employee=s asthma and her employment.
2. Temporary Partial Disability Benefits
A. March 19 through May 22, 2000.
The compensation judge found the employee failed to prove entitlement to temporary partial disability benefits from March 19 through May 22, 2000, because the employer was then providing the employee with work she was physically able to perform. The employee appeals this finding contending it is legally erroneous. She contends she proved she earned less than her pre-injury wage during the period in question and is, therefore, legally entitled to temporary partial disability benefits. We do not agree.
In January 2000, the employee=s supervisor, Barb Passe, met with the employee and told her her job would be changed from a lead person to a team leader. Ms. Passe told the employee she would remain at her current wage of $9.07 an hour until April 10, 2000, at which point she would be paid $8.27 an hour as a team leader. On April 10, 2000, the employee=s hourly wage was reduced to $8.27 an hour. Petitioner=s Exhibit A, the employee=s wage records, reflect the employee was paid for 40 hours of work for each week from March 19 through May 22, 2000. Although the employee did earn less than her pre-injury wage during these weeks, we find no evidence her wage loss resulted from her personal injury. Rather, the wage loss resulted from the decreased hourly rate which had been established in January 2000 prior to the employee=s personal injury of March 7, 2000. Accordingly, we affirm the compensation judge=s denial of temporary partial disability benefits for this period.
B. August 7, 2000 through February 25, 2001.
On August 7, 2000, the employee obtained a job with The Anderson House as a bakery manager earning $8.50 an hour. During some weeks between August 7 and February 25, 2001, the employee earned less than her weekly wage with the employer. The compensation judge, however, denied temporary partial disability benefits for this period. The judge found the employee was not under any significant restrictions or limitations as of August 7, 2000, other than avoiding exposure to irritating chemicals, dusty conditions and humidity. In his memorandum, the compensation judge stated:
There has been no showing that these rather benign restrictions impacted on the employee=s ability to secure employment. The ease with which she secured employment would infer that the limitations did not significantly impact on her ability to find and secure employment. There is no indication that she had to turn down any jobs or avoid employment because of the limitations.
(Mem. at 6.) The judge concluded the employee had failed to prove a reduction in earning capacity or entitlement to temporary partial disability benefits. We reverse.
On March 31, 2000, Dr. Hunt recommended the employee not work in the gel pack building unless she could avoid exposure to chemicals. On May 22, 1999, the employer placed the employee on a leave of absence because of her respiratory problems. The compensation judge found the employee was temporarily totally disabled from May 22 through August 6, 2000, due to her asthmatic condition. On July 31, 2000, Dr. Hunt again diagnosed industrial induced asthma and restricted the employee from exposure to any irritant fumes or dust and instructed her to avoid going in and out of high temperatures and humidity. The employee has restrictions which preclude her from returning to her pre-injury job. The compensation judge found the restrictions sufficiently disabling to entitle the employee to temporary total disability benefits. We find no logical nor legal basis to conclude the employee was temporarily and totally disabled due to her personal injury but not temporarily and partially disabled. Temporary partial disability benefits are generally based on post-injury wages because such wages are presumptively representative of an employee=s reduced earning capacity. Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). The employer and insurer offered no evidence to rebut the presumption that the employee=s earnings at the Anderson House were representative of her post-injury earning capacity. Accordingly, the judge=s denial of temporary partial disability from August 7, 2000 through February 25, 2001, is reversed.