ROBERT ORTIZ, Employee/Appellant, v. EATON CORP., SELF-INSURED, Employer/Cross-Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 15, 2002
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded medical opinion, supports the compensation judge=s finding that the employee was temporarily totally disabled after work-related shoulder surgery.
TEMPORARY PARTIAL DISABILITY - EARNING CAPACITY. Substantial evidence supports the compensation judge=s finding that the employer had not rebutted the presumption that the employee=s actual earnings accurately reflected his earning capacity.
Affirmed in part and modified in part.
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: William R. Johnson
MIRIAM P. RYKKEN, Judge
The self-insured employer cross-appeals from the compensation judge=s award of temporary total and temporary partial disability benefits. We affirm in part and modify in part.
Roberto D. Ortiz, the employee, began working for Eaton Corporation, self-insured employer, in March 1988. On August 2, 1994, the employee was working as a machine operator. The employee claims to have sustained an injury to his right shoulder on that date, while assisting a co-worker with picking up some long metal bars, which he estimated weighed 75-80 pounds each. (T. 27-28.) The employee was 41 years old at the time of his injury, and earned a weekly wage of $499.70. The self-insured employer denied primary liability for this injury.
Following this date, the employee initially received limited medical treatment for his right shoulder. The employee testified that he Awent to the doctor and . . . explained to the doctor what had happened,@ (T. 27) at Park Nicollet Medical Center. On August 24, 1994, the employee reported to Dr. Bruce Samson that he had experienced upper back problems and shoulder discomfort for one month, and that his symptoms began at work when he was doing multiple lifting. The doctor diagnosed a snapping scapula syndrome, also known as scapular thoracic bursitis, and referred the employee to physical therapy for exercises, scapular stabilization and strengthening. The doctor asked the employee to follow-up in three weeks, and recommended no work restrictions. On August 31, 1994, the employee underwent an initial physical therapy evaluation, reporting pain at the midscapular region on the right side, radiating to the lower cervical region. The therapist prescribed four therapy sessions to treat his right shoulder symptoms and to teach him home exercises. Dr. Samson re-examined the employee on September 14, 1994; he recommended that the employee continue physical therapy, requested the employee to follow-up in one month, and released the employee to return to work with no restrictions. On October 3, 1994, the employee consulted a physician reporting irritation of his left eye. The chart note states that the employee Aalso mentions a right shoulder problem presently being evaluated and helped by PT.@ (Er. Ex. 3.)
On January 27, 1995, the employee left his job with the employer. There is contradicting information in the record as to why the employee left his position. The employee testified that he did so because his knee and shoulder hurt and he Acouldn=t find a . . . nurse, someone to tell [him] what [he] was able to do in order to keep [his] job.@ (T. 31-32.) According to a ASeparation Notice@ completed by a representative from the employer=s human resource department, the employee voluntarily quit his position, with the following reason listed on the notice: ALeaving to heal past injuries and go back to school to pursue tool & die.@ (Er. Ex. 11.) The compensation judge found that the employee left this position of his own volition, and that at the time he left his job, the employer had work available for him. (Finding No. 9.)
The employee remained off work until June 26, 1995, when he began working for Screen Printed Products. He worked there until August 1995 when he underwent knee surgery. Between August 1995 and 1998, the employee worked at various jobs; he also attended school at Hennepin Technical College, obtaining a certificate as a General Machinist in November 1996 and a diploma in Mold Making in November 1997. (T. 36-37; Ee. Ex. D; Er. Ex. 5.)
The record contains no medical records for treatment to the employee=s right shoulder injury in 1995 and 1996. On February 21, 1997, the employee reported to Park Nicollet Medical Center with recurrent shoulder pain. He was prescribed Naprosyn, was advised to apply ice, and was recommended to follow-up with the clinic. On May 29, 1997, the employee underwent an independent orthopedic examination with Dr. David Boxall at the request of the self-insured employer. Dr. Boxall examined the employee relative to a claimed right knee injury and claimed right shoulder injury. Dr. Boxall concluded that the employee had developed right shoulder bursitis as a result of his work activities, but that the condition resolved as of September 14, 1994. Dr. Boxall concluded that the employee reached maximum medical improvement (MMI) from his shoulder injury on September 14, 1994, that no medical treatment thereafter was reasonable or necessary, and that the employee had no physical work restrictions or permanency relative to his right shoulder.
On May 13, 1998, the employee reported to Dr. David Klock, Park Nicollet Medical Center, complaining of recurrent right shoulder pain. He reported a snapping and popping sensation in the posterior portion of his right arm. On examination, Dr. Klock determined that the employee had full active range of motion and good strength in the right shoulder, and was neurovascularly intact in his right upper extremity; he diagnosed chronic right shoulder pain with possible scapular syndrome, and referred the employee for an orthopedic evaluation. Dr. Thomas Youngren, orthopedist, examined the employee on June 9, 1998. He recommended work restrictions on reaching and grasping, and advised the employee to avoid pushing and pulling with his right shoulder. The employee underwent a physical therapy consultation on June 10, 1998, reporting an injury on August 2, 1994 and constant pain for the last four months that earlier was more intermittent. He reported that his shoulder symptoms were worsened with repetitive lifting, lifting anything heavy, and moving his arm in horizontal adduction and abduction Awith crackling sound.@ Dr. Youngren provided a trigger point injection on July 2, 1998, after which he referred the employee for a surgical consultation with Dr. Scott McPherson.
Dr. McPherson recommended shoulder surgery, and on August 12, 1998, he performed an endoscopic decompression with scapulothoracic bursitis. The employee underwent physical therapy. On August 31, 1998, Dr. McPherson released the employee to return to work, assigning restrictions of no stressful torquing or twisting with right arm, and occasional lifting up to ten pounds. On September 23, 1998, the employee began working for Unimatic, Inc., as a computer machine operator. As of October 23 and December 18, 1998, Dr. McPherson re-examined the employee, and provided revised physical work restrictions relative to his shoulder.
In a narrative report dated December 10, 1998, Dr. McPherson diagnosed the employee=s condition as chronic right scapulothoracic bursitis, which he concluded was causally related to the employee=s work activities as of the injury date August 2, 1994. Dr. McPherson advised that the employee should avoid stressful use of the right shoulder and that he would not be a candidate for overhead activity. Dr. McPherson stated that he had no plans for future medical treatment, other than ongoing physical therapy scheduled Ato maximize [the employee=s] recovery and to improve the strength of the muscles around the right scapular region.@ Dr. McPherson concluded that no specific permanency rule applied to the employee=s scapular condition, but that a comparable Weber rating would be 3 percent permanent partial disability of the body as a whole, based upon Minn. R. 5223.0450.
The employee left his position with Unimatic in January 1999, and testified that he did so due to family problems. (T. 50.) Dr. McPherson re-evaluated the employee on March 16, 1999, at which time he assigned the following permanent work restrictions: occasional lifting up to 50 pounds, frequent lifting up to 20 pounds, reaching above the shoulder on an occasional basis, avoidance of repetitive rotary movements of the right shoulder, no repetitive pulling, twisting or rotating of the right arm and shoulder. In April 1999, the employee obtained employment with a restaurant, Du Jours, and worked there for approximately one and a half months. (T. 39.)
The employee requested rehabilitation services from the Minnesota Department of Labor and Industry Vocational Rehabilitation Unit (VRU). Although initial informational and intake materials were mailed to the employee in August 1998, those were returned as undeliverable; by June 1999, communications were re-established with the employee and the VRU, and a qualified rehabilitation consultant (QRC) conducted an initial rehabilitation consultation on June 30, 1999. The QRC determined that the employee was qualified for rehabilitation services, and filed a report and rehabilitation plan with the Department of Labor and Industry on July 7, 1999. In July 1999, shortly after a placement vendor commenced working with the employee, he returned to work for an employer for whom he had worked in 1998, Di-Hed Yokes, Inc. He worked there until January 21, 2000, when apparently he was laid off.
The employee was again examined by Dr. Boxall on January 6, 2000. Following that examination, Dr. Boxall concluded that the right shoulder surgery performed by Dr. McPherson on August 12, 1998 was unnecessary, unwarranted and unrelated to the work injury. Dr. Boxall noted that the employee initially had Asnapping@ in both shoulders, but that at his second examination on January 6, 2000, there was no snapping in either shoulder and therefore the left shoulder snapping had resolved without surgery. (Er. Ex. 2.) Dr. Boxall outlined his recommendations concerning work restrictions post-surgery, as follows:
Following his surgery, it is my opinion that he would have been totally disabled from work for a period of 10 days to two weeks at which point in time he could return to work at a light duty sedentary job for a couple of weeks and by one month following surgery, he would have been able to work up to waist height without restrictions and from waist to shoulder height lifting up to 20 pounds and above shoulder height up to 10 pounds. By three months postop, he would have no restrictions regarding the right shoulder.
It is my opinion he would have accomplished maximum medical improvement following his right shoulder surgery by three months postop.
I do not believe that he needs any restrictions regarding his right shoulder as a consequence of his surgery by Dr. McPherson and outcome from that surgery.
(Er. Ex. 1.)
After the employee was laid off from his position in January 2000, the VRU maintained an open file, and requested the employee to call after the employee=s anticipated meeting with an attorney, in order to discuss his case and to determine whether it was appropriate to proceed with further rehabilitation services. At the time of the hearing held on this matter on April 27, 2000, the employee was unemployed. As the VRU received no follow-up information and inquiries from the employee, it closed the file, and filed a Notice of Rehabilitation Plan Closure on December 5, 2000.
On March 3, 1997, the employee filed a claim petition, claiming entitlement to temporary total disability benefits and reimbursement of medical expenses related to a claimed right knee injury in 1993 and a right shoulder injury on August 2, 1994. The matter was later stricken from the active trial calendar and ultimately set for a hearing before a compensation judge on April 27, 2000. In a Findings and Order served and filed June 26, 2000, the compensation judge found that the employee failed to prove that his claimed injury to his right knee arose out of and in the course of his employment with the employer in either 1993 or on August 2, 1994. The compensation judge also found that the employee sustained an injury to his right shoulder, in the nature of scapular thoracic bursitis, which arose out of and in the course of his employment with the employer on August 2, 1994. The compensation judge awarded temporary total disability benefits in August 1998 and temporary partial disability benefits during three periods of time between September 1998 and December 1999, but denied the employee=s claims for temporary total and temporary partial disability benefits for various periods of time between 1995 and 1998, and denied his claims for permanent partial disability relative to the shoulder injury.
The employee originally appealed from the denial of benefits, but later withdrew his appeal. The self-insured employer cross-appealed from the compensation judge=s determination that the employee sustained a work-related injury to his right shoulder, and from the award of temporary partial and temporary total disability benefits.
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.
Temporary Total Disability Benefits
The compensation judge found that the employee was temporarily totally disabled from the date of his shoulder surgery, August 18, 1998, through August 31, 1998. The self-insured employer appeals, arguing that the employee=s 1998 shoulder surgery was not causally related to the employee=s work injury of August 2, 1994, and was unnecessary and unwarranted, and therefore that the employee=s temporary total disability post-surgery was not compensable. These issues were not clearly before the compensation judge. The issue of payment of the surgical bill had been resolved pre-hearing by a stipulation for settlement entered into by the employer and intervenor, Health Partners. The compensation judge found that Dr. McPherson ultimately performed surgery to help resolve the employee=s right shoulder condition, which the compensation judge found was work-related, and substantial evidence supports that finding. (Finding No. 9.2(a).) The employee was diagnosed with scapular thoracic bursitis in 1994, and he testified to ongoing problems with his shoulder; Dr. McPherson made that same diagnosis in 1998 and operated for that condition. There is no evidence of a superseding, intervening cause of the employee=s shoulder condition, and Dr. McPherson, in his December 10, 1998 report, stated that the employee=s chronic right scapulothoracic bursitis was causally related to his personal injury in 1994.
In addition, although there are conflicting medical opinions in the record concerning the causal relationship between the employee=s shoulder injury and his surgery and post-surgery restrictions, it is not the role of this court to determine whether the evidence supports a conclusion contrary to that reached by the compensation judge. Whether this court Amight have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate.@ Redgate v. Sroga=s Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).
The compensation judge based his finding that the employee was temporary totally disabled post-surgery on the opinion of Dr. McPherson, who had restricted the employee from all employment from the date of surgery until August 31, 1998, when he released the employee to return to work with restrictions. The compensation judge found those restrictions to be Asort of common sense type restrictions, which are not indicative of any permanent impairment.@ (Finding No. 9.2(a).)
The employer argues that Dr. McPherson=s records provide no basis for his opinions. The employer specifically argues that the employee sought no medical treatment after September 1994, that he continued to work as a machine operator post-injury, and that there is no evidence that Dr. McPherson reviewed the employee=s prior medical records or was aware of the employee=s work history and the physical nature of the employee=s jobs since leaving Eaton Corporation in early 1995.
To be of evidentiary value, a medical opinion must rest on a factual basis. A compensation judge=s choice of experts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985.) Dr. McPherson took a history from the employee and conducted a physical examination of the employee. This history he obtained from the employee concerning the onset of his symptoms, as outlined in his chart notes and narrative report, is consistent with the employee=s testimony and the compensation judge=s finding that the employee sustained an injury on August 2, 1994. The employee was diagnosed with scapular thoracic bursitis in August 1994 which is the same diagnosis made in 1998 by Dr. McPherson. That medical opinion is based on adequate foundation and therefore it was reasonable for the compensation judge to rely on Dr. McPherson=s opinion concerning the employee=s restriction from employment post-surgery. Accordingly, we affirm the finding that the employee was temporarily totally disabled from employment following his surgery on August 12, 1998. We modify the compensation judge=s finding 9.2(a) to award temporary total disability benefits from August 12 through August 31, 1998.
Temporary Partial Disability Benefits
The self-insured employer also appeals from the compensation judge=s finding that the employee was entitled to temporary partial disability benefits during three periods of employment between September 1998 and December 1999. In order for an employee to be entitled to temporary partial disability benefits, the following factors are necessary: (1) there must be a physical disability; (2) the employee must be able to work subject to the disability; and (3) there must be an actual loss of earning capacity that is causally related to the disability. Morehouse v. Geo. A. Hormel & Co., 313 N.W.2d 8, 34 W.C.D. 314 (Minn. 1981); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 46-47, 245 N.W.2d 451, 454, 29 W.C.D. 86, 91 (1976). The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability. Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988).
The employer argues that the employee was released to return to work with no restrictions on September 14, 1994, by his treating doctor and thereafter worked as a machine operator with no restrictions. The employer argues that the employee=s restrictions were not imposed until after his shoulder surgery, and that since the surgery was not causally related to the employee=s injury, the employee=s loss of earning capacity is not causally related to the employee=s injury. We have already affirmed the compensation judge=s determination that the employee=s restrictions post-surgery were causally related to his 1994 work-related shoulder injury, and so conclude that this portion of the employer=s argument is moot.
The employer argues, alternatively, that if the employee was indeed restricted as a result of his 1994 work injury, he established his earning capacity post-surgery while employed at Unimatic between September 1998 and January 1999, and therefore his entitlement to temporary partial disability should be based on that established earnings level. The employer argues that whereas the employee earned a weekly wage of $499.70 on the date of his injury, he earned an approximate weekly wage of $452.84 while working at Unimatic. The employer argues that since the employee left the employment of Unimatic due to family problems, unrelated to his work injury or restrictions, this wage reflects his post-surgery earning capacity and any temporary partial disability benefits should be based on this imputed wage.
When a disabled employee who is released to return to full-time work finds a full-time job, the earnings from such employment create a presumption of earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). In appropriate circumstances, this presumption can be rebutted with evidence indicating that the employee=s ability to earn is different than the post-injury wage. Patterson v. Denny=s Restaurant, 42 W.C.D. 868, 874 (W.C.C.A. 1989); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). In order to establish an earning capacity different from actual earnings, there must, however, be more presented than evidence of a hypothetical job paying a theoretical wage, Saad v. A.J. Spanjers Co., 42 W.C.D. 1184, 1194 (W.C.C.A. 1990); Patterson, 42 W.C.D. at 875. An employee=s wage in a post-injury job has little evidentiary value for purposes of determining earning capacity if the job is no longer available. See, e.g., Larson v. Gorman Foundry, 60 W.C.D. 257 (W.C.C.A. 2000); Millerbernd v. Spectrol, Inc., 47 W.C.D. 479 (W.C.C.A.)
In this case, the employee left the employ of Unimatic in February 1999. He remained unemployed for approximately three weeks, after which he worked at Du Jours for one month. Thereafter, he was unemployed for approximately three months, after which he began working for Di-Hed Yokes as a machine operator. The record contains no evidence that the employee=s position at Unimatic, where he initially worked post-injury, was still available to the employee later in 1999, during the periods when the compensation judge awarded temporary partial disability benefits. There were no vocational records or opinion in the record concerning the employee=s earning capacity. The sole evidence in the record concerning the employee=s status after leaving his position at Unimatic rests in the medical records that document the employee=s work restrictions, the employee=s list of potential employers he contacted in 1999, and reports generated by the QRC who provided limited rehabilitation assistance to the employee in June 1999, prior to the employee=s job with Di-Hed Yokes. As a result, the record contains no evidence that rebuts the presumption that the employee=s earnings in 1999 accurately reflected his earning capacity.
In this case, the compensation judge explained that he relied on Dr. McPherson=s opinion in concluding that the employee=s disability post-surgery was causally related to his right shoulder injury in 1994, and that the employee was still subject to physical work restrictions as a result of his injury. Dr. McPherson initially assigned work restrictions when releasing the employee to work on August 31, 1998. As of October 23 and December 18, 1998, Dr. McPherson re-examined the employee, and provided revised physical work restrictions relative to the employee=s shoulder. On March 16, 1999, Dr. McPherson assigned permanent work restrictions, including frequent lifting up to 20 pounds, occasional lifting up to 50 pounds, avoidance of repetitive rotating movements of the right shoulder, occasional reaching above his shoulder with weight under five pounds, and no repetitive pulling, twisting or rotating of the right arm and shoulder. These physical work restrictions provide substantial evidence on which the compensation judge could reasonably rely in concluding that the employee was temporarily partially disabled from employment between September 1998 and December 1999.
Based upon the record that was available for the compensation judge=s review in this case, including the employee=s medical records, we conclude that there is adequate evidence of record to support the compensation judge=s conclusion that the employee was temporarily partially disabled during three periods of time in 1998 and 1999. Based on the record, the compensation judge=s finding was not clearly erroneous, and we therefore affirm.
 Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).
 On an intake form dated June 10, 1999, which the employee completed for the Minnesota Department of Labor and Industry Vocational Rehabilitation Unit, the employee lists his reason for leaving his Unimatic position as Aneed a different job.@ (Ee. Ex. D.)
 On his rehabilitation intake form, the employee listed his reason for leaving his job with Du Jours as Aincrease of duties with no [sic] much pay.@
 No specific date was listed on the claim petition for a right knee injury.
 Prior to that hearing, four intervenors and the self-insured employer settled intervention claims relative to medical benefits, unemployment compensation and rehabilitation expenses paid to and on behalf of the employee. A Partial Award on Stipulation was served and filed on March 30, 2000.
 By Order of Dismissal served and filed on December 27, 2000, the employee=s appeal was dismissed.
 In its Notice of Appeal, the self-insured employer appealed from the finding that the employee sustained a work-related injury to his right shoulder on August 2, 1994, but made no argument in its brief regarding that issue. Issues raised in the notice of appeal but not briefed are deemed waived. Minn. R. 9800.0900, subp. 1. Therefore, that issue is waived and will not be addressed.
 The reference to a surgery date of August 18, 1998, is a typographical error. The employee underwent surgery on August 12, 1998.
 The self-insured employer does not indicate the basis for its calculation of the employee=s Unimatic wage of $452.84. According to Employee=s Exhibit A, the employee worked at Unimatic between September 23, 1998, and February 23, 1999, a period of approximately 22 weeks. The employee earned $8,510.39 at Unimatic during this period, which calculates to an average weekly wage of approximately $386.83. The compensation judge did not make a specific finding on this wage rate. However, no other evidence in the record indicates a wage rate contrary to the information in Exhibit A.