LINDA DUHAIME, Employee/Appellant, v. INDEPENDENT SCH. DIST. #709/DULUTH and LIBERTY MUT. INS. COS., Employer-Insurer/Cross-Appellants, and BLUE CROSS/BLUE SHIELD OF MINN., Intervenor.
WORKERS= COMPENSATION COURT OF APPEALS
AUGUST 30, 2002
CAUSATION - SUBSTANTIAL EVIDENCE; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where there was expert medical support for the employee=s claim that her respiratory and other symptoms were caused by allergens in her work environment, the compensation judge=s conclusion that the employee sustained a temporary work injury and was entitled to payment of related medical expenses was not clearly erroneous and unsupported by substantial evidence, even absent identification of the specific allergen that was causing the employee=s reaction.
TEMPORARY BENEFITS; PRACTICE & PROCEDURE - REMAND. Where there was substantial evidence to support the compensation judge=s conclusion that the employee had sustained a temporary injury in the form of an allergic reaction to her work environment, but where the judge had neither ordered nor denied either temporary partial or temporary total disability benefits for the period of claimed disability related to that temporary injury, the matter was remanded to the compensation judge for a determination as to whether the employee was entitled to temporary benefits and, if so, whether that entitlement was to temporary total or to temporary partial disability benefits.
Affirmed in part and remanded.
Determined by Pederson, J., Wilson, J., and Johnson, C.J.
Compensation Judge: Carol A. Eckersen.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s determination that her work-related allergic reaction ended on June 3, 1999, and from the judge=s failure to award temporary total or temporary partial disability benefits during the period of that temporary injury. The employer and insurer cross appeal from the judge=s finding of a temporary injury lasting from November 5, 1998, through June 3, 1999, and from the award of related medical expenses. We affirm the judge=s finding of a temporary work injury and the award of related medical expenses through June 3, 1999, and we remand to the judge for determination the issue of the claimed temporary total and temporary partial disability benefits.
Linda Duhaime [the employee] is a school social worker, employed by the Duluth school system, Independent School District #709 [the employer]. She began working for the employer in 1993 and was assigned to the East High School. On November 5, 1998, the employee submitted an injury report to her employer, in which she related a number of symptoms to her work environment, including headaches, sore throat, a tight feeling in her chest, and flushed and red cheeks. On that date, the employee was fifty years old and was earning a weekly wage of $915.37.
On November 9, 1998, the employee sought medical treatment with Dr. Alan Peterson, M.D., at the St. Mary=s Medical Center, to whom she presented a history of work-related allergy symptoms. She reported to Dr. Peterson that her room at the high school had poor ventilation and that, whenever there was painting being done in the building, she would develop symptoms of a red face, with a burning sensation and some swelling, a stuffy nose, headache, sore throat, and chest tightness. She stated that her symptoms had begun the preceding Friday, had improved over the weekend, and then had significantly worsened again upon her returning to work that Monday. Dr. Peterson diagnosed an A[a]llergic reaction which is most likely work related@ and prescribed Claritin, an antihistamine.
Two days later, the employee was seen at the Duluth Clinic by nurse practitioner Terry Granlund, who advised the employee to work away from strong organic vapors. Dr. Jed Downs, also of the Duluth Clinic, reviewed the employee=s chart and noted that he had previously seen the employee in May 1997, at which time she was reacting to odors associated with tarring the roof. His impression in 1997 had been possible chemical irritation of her mucus membranes. As to her current complaints, Dr. Downs stated that he could Asupport her being moved to a different office setting with improved indoor air quality but [could not] give her a specific diagnosis . . . beyond hypersensitivity to organic vapors.@ He referred the employee to allergist Dr. Jay Parker.
The employee saw Dr. Parker for an allergy evaluation on November 17, 1998. Selective skin testing was performed, and findings were reported to be negative. Dr. Parker explained to the employee, however, that she might be reacting to things that he could not test for, such as other irritants in the air. He recommended that she ask her employer for a different place to work.
On December 3, 1998, the employee was seen by Dr. Charles Vergona, M.D., at the Fond du Lac Human Services Division in Cloquet, Minnesota. Dr. Vergona prescribed an antihistamine and an inhaler and took the employee off work for two weeks. This two-week period was followed by Christmas break at the school for the remainder of December. In a follow-up visit to Dr. Vergona on December 18, 1998, the employee reported improvement in her symptoms, but she also described a setback the previous day when it had been necessary for her to return to school. The employee reported that after just a few minutes she had begun to experience flushing, a rash on her face, and tightness in her chest.
The employee returned to work on January 4, 1999, and within an hour she began to experience flushing and burning of the face, headache, nasal stuffiness, throat burning, chest tightness, and nausea. She left work and returned to see Dr. Vergona the next day. On January 8, 1999, Dr. Vergona wrote to Terri Kronzer, the employer=s Director of Human Resources, recommending that the employee be removed from her work environment and placed elsewhere. Dr. Vergona stated that, Aalthough tested for a variety of allergens which were not the in[ci]ting factors, it would be impossible to know and to test for every potential allergen or combination of these in any environment.@
On March 5, 1999, Ms. Kronzer wrote to the employee and requested that she return to work on March 10, 1999. Ms. Kronzer stated that A[a] direct source of supply ventilation has been installed into your office space and we have located another office location for you. You personally requested a window and the new office space provides one. You may choose the option of which location would best suit your needs.@ The employee returned to work as requested, but a recurrence of symptoms necessitated her leaving work after about six hours. Later that afternoon, she returned to the office of Dr. Vergona, who examined her and concluded that she Aappears to have recurrent upper respiratory symptoms which seem attributable to sick building syndrome or multiple chemical sensitivity syndrome.@ Dr. Vergona again took the employee off work.
The employee was examined by pulmonary disease specialist Dr. Paul Johnson at the request of the employer and insurer on March 18, 1999. Dr. Johnson obtained a history from the employee, performed an examination, obtained pulmonary function studies, and reviewed the employee=s medical records. In his report dated April 4, 1999, Dr. Johnson stated that he was unable to make any specific diagnosis of the employee=s condition. He concluded that the acute symptoms that the employee experienced on November 6, 1998, were self-limiting and that there was no evidence of any ongoing problem. Dr. Johnson did not recommend any restrictions on the employee=s work activities or any future medical treatment. In a supplementary report dated April 22, 1999, Dr. Johnson opined that the employee had sustained a temporary work injury on November 6, 1998, from which she had reached maximum medical improvement [MMI] having sustained no ratable permanent partial disability. He also opined that that injury had resolved by November 17, 1998, having never totally disabled the employee. Dr. Johnson concluded also that medical care through November 17, 1998, had been reasonable and necessary but that any care after that date had not been necessary.
The employee returned to work on April 26, 1999, and, despite being Avery sick all the time,@ continued to work until seen by Dr. George Kroker of Allergy Associates of LaCrosse, Ltd., on May 28, 1999. In a letter to the employer on June 2, 1999, Dr. Kroker stated that the employee,
was found to have definite sensitivities on our testing to dust and mold antigens, and I feel that it would be necessary that she be given a medical leave of absence beginning May 28, 1999 from her current working environment at East High School. I feel that Ms. Duhaime needs to return to work at a job site other than East High School because of her medical condition and probable building related illness there. I sincerely appreciate your help and understanding in relocating [the employee] in the fall of 1999 to another school environment rather than East High School.
On June 3, 1999, the employee received a memo from Ms. Kronzer informing her that she would be temporarily moved to Chester Park Elementary School effective June 4, 1999. The employee evidently did not return to work at that time, apparently of the understanding that Dr. Kroker had placed her on medical leave until the end of the school year, June 18, 1999.
When the 1999-2000 school year began, the employee was evidently feeling better, and she returned to work on a full time basis, though not at East High School. She was assigned to the Barnes Headstart Program for one year and then transferred to Central High School for the 2000-2001 school year. The employee later testified to having reactions from time to time at Barnes, but nothing requiring her to leave work.
On November 22, 1999, the employee filed a claim petition, alleging an allergic reaction or chemical sensitivity injury in the course of her employment on November 5, 1998, January 4, 1999, and March 10, 1999. The employee claimed entitlement to temporary total disability benefits continuing intermittently from November 9, 1998, as well as payment of medical treatment expenses. The employer and insurer admitted a temporary work-related injury on November 5, 1998, as defined and limited by Dr. Johnson, but denied the claimed injuries of January 4, 1999, and March 10, 1999.
The employee=s claims came on for hearing before a compensation judge on September 18, 2001. At trial, the employee asserted that she was entitled to payment of certain medical expenses incurred after November 17, 1998, and to intermittent temporary total and temporary partial disability benefits from November 9, 1998, through June 18, 1999, and again from January 5, 2000, through March 31, 2000. In addition to testifying herself, the employee called as witnesses two co-workers at East High School, Virginia Kay Goodman and Bruce Hemmerling. Both testified regarding their observation of the employee when she experienced her alleged allergic reactions in 1998 and 1999. The employer and insurer called Terri Kronzer and Kerry Leider, facilities manager for the school district, to testify regarding their inability to locate and identify the contaminants allegedly affecting the employee and regarding their efforts to accommodate the employee=s symptom complaints.
In a Findings of Fact, Conclusions of Law, and Order issued November 26, 2001, the compensation judge determined that the employee had a temporary allergic reaction as a result of her exposure to an allergen at work on November 5, 1998, through June 3, 1999. The judge concluded that the employee=s medical treatment from November 17, 1998, through June 3, 1999, was reasonable and necessary, and awarded that treatment. The judge specifically denied the employee=s claim for temporary disability benefits after January 5, 2000, but failed to address the employee=s claim for temporary disability benefits between November 9, 1998, and June 3, 1999. Both the employee and the employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
1. The Employer and Insurer=s Appeal
On appeal, the employer and insurer contend that there is inadequate factual foundation for the judge=s conclusion that the employee sustained a temporary allergic reaction as a result of substances in her work environment. Specifically, they argue that the judge failed to define or identify the harmful substance in her work environment that substantially contributed to cause her alleged allergic reactions and chemical sensitivities. The only link, they contend, is the employee=s subjective complaints, which are inadequate in this case. Because the employee failed to prove that her allergic reaction was due to her work environment, the employer and insurer contend, the judge=s finding of a temporary allergic reaction and consequent award of medical expenses should be reversed. We do not agree.
Dr. Kroker reported that the employee was found to have definite sensitivities on testing to dust and mold antigens, referring to certain sampling studies that showed molds and candida present at East High School. Dr. Vergona as well, on January 8, 1999, reported to the employer that the employee=s symptoms are predictable and occur when she is in her work environment. He noted also that, upon removing herself from that environment, the employee begins to feel progressively better over the course of the next one to three days. Dr. Vergona examined the employee following two of her attempts to return to work, and he noted the return of her symptoms, concluding that they were triggered by that environment. Conceding that he was unable to name the specific allergen, Dr. Vergona explained that A[i]t would be impossible to know and to test for every potential allergen or combination of these in any environment.@ We accept this conclusion, noting the supreme court=s statement that A[i]t is well established that the truth of the opinion need not be capable of demonstration, that an expert is not required to express absolute certainty in the matter which is its subject, and it is sufficient if it is probably true.@ Boldt v. Josten=s, Inc., 261 N.W.2d 92, 94, 30 W.C.D. 178, 182 (Minn. 1977), citing Sullivan v. Hagstrom Constr. Co., 244 Minn. 271, 69 N.W.2d 805, 18 W.C.D. 279 (1955). The employee=s position and her testimony regarding her reaction to the work environment were also corroborated by Ms. Goodman and Mr. Hemmerling. Finding no requirement that either the judge or the medical witnesses in a case such as this must be able to define and identify the exact substance in the work environment that triggered the employee=s reaction, and noting that the conclusion of the judge is supported also by lay testimony, we conclude that the judge=s finding of a work-related allergic reaction was not unreasonable.
The employer suggests that, even if the employee did sustain an allergic reaction at work on November 5, 1998, the employee=s reaction was, pursuant to the opinion of Dr. Johnson, extremely temporary, probably ending not long after it occurred and certainly not continuing until June 3, 1999, as found by the judge. The judge suggested, however, that, while crediting the opinion of Dr. Johnson that a temporary injury did occur, she also relied on the opinions of Drs. Vergona and Kroker to the effect that the employee was repeatedly symptomatic whenever she entered the East High School building. In light of all of the evidence of record, the judge=s conclusion that the employee=s temporary allergic reaction extended to June 3, 1999, was not unreasonable. See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence). Because they were not unreasonable, we affirm the compensation judge=s conclusions that the employee sustained a work-related allergic reaction on November 5, 1998, and that that reaction continued through June 3, 1999. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
2. The Employee=s Appeal
The record is clear that the employee specifically claimed entitlement to wage loss benefits between November 9, 1998, the first day of wage loss after the November 5 exposure, and June 18, 1999, the end of the school year. While concluding the employee had a temporary allergic reaction on November 5, 1998, through June 3, 1999, and while also concluding that medical care and treatment provided during that period of time was reasonable and necessary, the judge did not make a determination on the employee=s claim for temporary disability benefits during that period. The employee asserts that the judge erred in this regard and that the issue requires a remand for determination. We agree. On remand, if benefits are indeed deemed payable, the compensation judge should, with the help of the parties, determine whether compensation should be made for temporary total disability or temporary partial disability between November 9, 1998, and June 3, 1999, and she should calculate her award accordingly.
The employee contends also that the judge erred when she picked June 3, 1999, rather than June 18, 1999, as the end of the employee=s temporary allergic reaction. The employee argues that the basis for the judge=s finding was her comment in her memorandum that A[t]he temporary aggravation continued until June 3, 1999 when the employee returned to work in a new location@ (emphasis added). Because the employee did not return to work on June 3, 1999, the judge should have concluded that the ending date for the aggravation was June 18, 1999, the end of the school year. We are not persuaded.
Although there does appear to be some inconsistency in the compensation judge=s memorandum, we note that, throughout her findings, the judge repeatedly refers to the date of June 3, 1999, as the end of the temporary aggravation. She awarded medical care through June 3, 1999, and she specifically concluded that, after that date, medical care was not causally related to the work injury. It was also at that point in time that the employer offered alternative work to the employee that was consistent with the recommendations of Dr. Kroker. We conclude that the record as a whole adequately supports the judge=s determination that the employee=s temporary allergic reaction ended by June 3, 1999. Accordingly, the determination of the compensation judge is affirmed in that regard. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 See Finding 1.