GARY WECKERLY, Employee, v. SMYTH COS., INC., and SAFECO INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 14, 2002
GILLETTE INJURY - DATE OF INJURY. Substantial evidence, including the imposition of restrictions, supports the compensation judge=s decision that the employee sustained a Gillette injury to his thumbs effective in June of 1996.
EARNING CAPACITY - SUBSTANTIAL EVIDENCE. Substantial evidence supported the compensation judge=s decision that the employee=s reduced earnings were causally related to his work injury, despite evidence that overtime is less available at the employer than it was prior to the employee=s injury, where the employee has been restricted from working overtime and where there is no evidence of any available physically suitable, higher paying work.
Determined by Wilson, J., Johnson, J., and Pederson, J.
Compensation Judge: Jeanne E. Knight.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the compensation judge=s findings that the employee=s bilateral thumb injury occurred on June 10, 1996; that the employee did not sustain a new injury in August 1998; and that the employee=s benefits have not been overpaid. We affirm.
The employee began work for the employer in 1966 as a journeyman one on the second shift. In March of 1991, the employee was promoted to second shift foreman and in 1995 to second shift finishing supervisor. Throughout his employment, the employee=s work required extensive use of his hands and wrists. As of June 10, 1996, the employee was receiving supervisor pay, a shift differential, and guaranteed overtime.
The employee treated with Dr. Michael Ruegsegger on June 12, 1996, complaining of pain in both thumbs for three to four months and pain in his right second and third digits of two weeks duration. The employee also complained of pain in his neck, down his right arm, and in his hips, and numbness in his forearms. Dr. Ruegsegger diagnosed Apain in hands, neck and hips@ and imposed restrictions of limited gripping and pinching with both hands, limited lifting, carrying, pulling, and pushing of no more than ten pounds. When the employee returned to Dr. Ruegsegger on June 17, 1996, the doctor diagnosed probable carpal tunnel syndrome and increased the employee=s restrictions.
On June 24, 1996, the employee was seen by Dr. Orrin Mann, who recorded a history of pain in the employee=s thumbs going back a year. Dr. Mann noted that the employee had a positive grind test of the basilar joint of the right thumb and assessed, in part, Apossible right basilar thumb osteoarthritis that has not yet been confirmed with x-rays or diagnostic tests.@ He also diagnosed bilateral carpal tunnel syndrome and continued the employee=s restrictions. During his July 10, 1996, examination, Dr. Mann noted that basilar thumb grind testing was positive bilaterally, worse on the right.
The employee underwent carpal tunnel release surgery on the right on August 29, 1996, and on the left on September 16, 1996. He had lost no time from work due to his conditions prior to the surgeries. On October 28, 1996, a First Report of Injury was filed with the Department of Labor and Industry, listing a date of injury of June 10, 1996, and describing the injury as Arepetitive motion injury with both hands, neck and hips.@ The employer and insurer filed a notice of primary liability determination, stating that the employee=s workers= compensation claim had been accepted and that temporary total disability benefits were being paid. It was noted that the employee=s average weekly wage on the date of injury was $1,009.00.
When seen by Dr. Mann again on April 22, 1997, the employee continued to complain of a burning and tingling sensation in the thumbs, with aching in the thenar eminence and into the basilar joint of the thumbs. On November 17, 1997, the employee moved to the first shift for personal reasons unrelated to his physical condition. He gave up his supervisory responsibilities (and associated pay), shift differential, and regular overtime hours with that move.
On March 13, 1998, the employee treated with Dr. Stuart Sybesma, who diagnosed recurrent carpal tunnel. Dr. Sybesma referred the employee to Dr. Thomas Walsh for treatment recommendations regarding bilateral wrist and hand pain. When Dr. Walsh examined the employee on June 11, 1998, the employee reported an aching soreness in both hands and pain in the bases of his thumbs. On examination, Dr. Walsh noted that the grind test was positive bilaterally, and he diagnosed advanced thumb CMC arthrosis, right greater than left. A fusion was done on the employee=s left thumb on June 30, 1998, with the wires removed on September 30, 1998, and the right thumb was fused on November 24, 1998, with the wires removed on April 7, 1999. The employee was physically unable to work from June 10, 1998, through June 1, 1999 and from June 16, 1999, through July 13, 1999. On or about July 14, 1999, the employee returned to work for the employer as a stores clerk on the first shift. In that job, the employee has been paid the same hourly wage as a journeyman one. The employer and insurer paid temporary total and temporary partial disability benefits after June 10, 1998, based on the 1996 date of injury.
On October 20, 2000, the employer and insurer filed a notice of intention to discontinue compensation on grounds that the employee had been demoted for reasons other than his injury and had not suffered a wage loss due to the injury in that no overtime was available to any employee. The matter proceeded to an administrative conference, after which a compensation judge issued a decision and order denying the discontinuance because the employer and insurer had submitted no evidence to support their contentions.
The employer and insurer filed a Petition to Discontinue Benefits on January 26, 2001, again seeking to discontinue temporary partial disability benefits, contending that the employee=s wage loss was unrelated to his injury but was due instead to a decline in overtime hours, which had affected the employer=s entire workforce. The employee was examined by independent medical examiner Dr. William Call on January 30, 2001, and, in a report dated February 13, 2001, Dr. Call opined that the employee could work more than forty hours a week. In an addendum report dated April 6, 2001, Dr. Call opined that the diagnoses of carpal tunnel syndrome and metacarpal arthritis of the thumbs were distinct conditions and that the culmination date for the right carpal tunnel release was August 29, 1996, for the left carpal tunnel release September 16, 1996, for the left thumb arthritis June 30, 1998, and for the right thumb arthritis November 24, 1998.
The Petition to Discontinue proceeded to hearing on April 26, 2001, at which time issues included whether the arthritis of the employee=s thumbs was a separate injury occurring on a date other than June 10, 1996. In findings filed on June 25, 2001, the compensation judge found, in part, that the employee=s bilateral thumb injury occurred on June 10, 1996, that the employee=s wage loss was a result of his 1996 injury, and that the employer and insurer should continue to pay temporary partial disability benefits. 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. Date of Injury
The employer and insurer contend that the compensation judge erred, as a matter of law, in finding that the employee=s bilateral thumb injury occurred on June 10, 1996, rather than in 1998. We are not persuaded.
There is no apparent dispute that the employee=s work activities were a substantial contributing factor to his bilateral thumb arthritis; rather, the dispute concerns the date on which that injury culminated. Citing Young v. ANR Freight, 45 W.C.D. 331 (W.C.C.A. 1991), the employer and insurer contend that a Gillette injury culminates when the employee is disabled from work and the date of disability is, most often, the last day the employee is able to work. The employer and insurer therefore argue that Athere is no factual or legal basis for establishing any date other than March or June of 1998 for the employee=s bilateral thumb Gillette injuries.@ We note initially that Young was an affirmance of a compensation judge=s finding, based on substantial evidence, and cases resolved on this basis have little value as precedent.
In the instant case, the employee complained to Dr. Ruegsegger, on June 12, 1996, of pain in both thumbs and pain in the second and third digits of his right hand. Dr. Ruegsegger imposed restrictions on the employee at that time, including limitations on gripping and pinching with both hands. In Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984), the Minnesota Supreme Court found that modification of job duties due to a doctor=s restrictions provided an adequate basis to support a Gillette injury finding. In this case, the employee testified that he did not alter his job duties in June of 1996, because he would not have been able to perform his job with those restrictions. However, the court in Schnurrer also held that the date of injury is determined Aon all the evidence bearing on the issue.@ Schnurrer, at 233, 36 W.C.D. at 509.
On June 27, 1996, Dr. Mann diagnosed Apossible right basilar thumb osteoarthritis.@ In addition to the onset of symptoms, the first treatment for the employee=s thumb symptoms, the doctor=s imposition of restrictions related to the thumbs, and a diagnosis of thumb osteoarthritis, there were findings on examination, by July of 1996, that the basilar thumb grind test was positive bilaterally. Dr. Walsh ultimately testified that the employee had arthritis of the thumbs in 1996. It was also Dr. Walsh=s opinion that the employee=s initial problems were basilar thumb joint in origin but that the employee subsequently developed carpal tunnel syndrome that went on to be the more predominant condition.
As substantial evidence supports the judge=s finding that the employee sustained a Gillette injury in the form of bilateral degenerative arthritis of the thumbs culminating in June of 1996, that finding is affirmed.
2. Wage Loss
The employer and insurer contend that the compensation judge erred in finding that the employee=s wage loss was causally related to the June 10, 1996, work injury, arguing that, when the employee switched to the first shift in November of 1997, he knew that he would be giving up a higher hourly rate, shift differential, and overtime and that it was the employee=s switch to the first shift, and not his work injury, that resulted in his wage loss.
The employee testified that regular overtime was available at the time of his 1996 injury, that overtime has been becoming less available each year, that there is only a fraction of the overtime available today that was available in 1996, and that, if overtime is available, it is most likely to go to the second shift workers. The fact remains, however, that the employee is restricted from working any overtime.
It is also uncontested that the employee has restrictions that prevent him from performing the job he held when he left the second shift in 1997. The job that the employee currently performs as a stores clerk is the only job that the employer has offered to the employee that he has been physically able to perform within his restrictions. At oral argument, the attorney for the employer and insurer represented that the stores clerk job is only available on the first shift. No evidence was submitted as to any higher paying offered work on the second shift that would be within the employee=s physical restrictions.
Evidence of actual earnings creates a presumption of earning capacity. Roberts v. Motor Cargo, Inc., 104 N.W.2d 546, 21 W.C.D. 314 (Minn. 1960). While this presumption may be rebutted, whether reduced earning capacity is attributable to the disability or to some other factor is generally a question of fact for the compensation judge. Dorn v. A.J. Chrony Constr. Co., 245 N.W. 2d 451, 29 W.C.D. 86 (Minn. 1976); Borchert v. American Spirits Graphics, 582 N.W. 2d 214, 58 W.C.D. 316 (Minn. 1998). In the instant case, the lack of evidence as to higher paying work within the employee=s restrictions, together with his restriction against working any overtime, provides substantial support for the compensation judge=s finding that the employee=s reduction in earnings is causally related to his work injuries. We therefore affirm the compensation judge=s findings in their entirety.