JODIE DOREE, Employee, v. SICK OPTICS, INC., and AMERICAN INT=L INS. CO./AIG, Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 14, 2004
File No. WC04-241
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Although the medical records were somewhat ambiguous, there was substantial evidence to support the compensation judge=s finding that the employee=s left shoulder injury continued to play a substantial contributing role in the employee=s need for medical restrictions.
Determined by: Stofferahn, J., Rykken, J., and Pederson, J.
Compensation Judge: William R. Johnson
Attorneys: Scott P. Heins, White Bear Lake, MN, for the Respondent. Timothy M. O=Keefe, Erstad & Riemer, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s denial of discontinuance of temporary total disability compensation. We affirm.
The employee, Jodie Doree, began working for the employer, SICK Optics, in 1994 as a shipping and receiving worker in the employer=s warehouse. On September 3, 2003, the employee spent most of his workday lifting 100-pound boxes from a conveyor belt to stack them on pallets. He typically lifted each box onto his shoulder against his neck while carrying it. After the employee got home from work on September 3, he began to notice increasing pain in his left shoulder and neck. He reported the injury the following day to his employer but was able to continue working at his regular job over the next several days.
The employee testified that his pain continued to worsen and, on September 10, 2003, the employee consulted his family physician, Dr. J.P. Barsanti. He described left shoulder pain shooting down the arm and up into the neck. Dr. Barsanti noted that the employee was tender across the entire left shoulder and had some upper back tenderness and spasm. Shoulder abduction was restricted to about 90 degrees and impingement testing was positive. The doctor diagnosed a probable rotator cuff strain and prescribed two weeks of rest, restricting the employee to no lifting over ten pounds or overhead work with the left arm from September 11 through September 20, 2003, after which his progress was to be reevaluated.
On September 11, 2003, the employee gave his restrictions to the employer who terminated his employment. The employer and insurer advised the employee that they were, however, admitting a left shoulder injury and that he would begin receiving workers= compensation benefits as applicable.
The employee returned to Dr. Barsanti on September 15 with continuing left shoulder pain and worsened pain in the arm. His neck was supple but there was a mild left paraspinous spasm. His upper back was tender and showed spasm. The left shoulder continued to be globally tender over the AC and glenohumeral joints. The employee had pain with abduction and with internal and external rotation of the shoulder. Dr. Barsanti diagnosed a left shoulder tendinitis, and ordered a left shoulder CT scan to try to rule out a rotator cuff tear. He continued the employee=s work restrictions.
The CT scan was performed on September 18, 2003. The employee=s left shoulder AC joint, acromion and proximal humerus were seen as normal. The employee nonetheless continued to have the same symptoms and examination findings when next seen by Dr. Barsanti on October 6, 2003. Dr. Barsanti injected cortisone into the subacromial space at the employee=s left shoulder. He also prescribed physical therapy. The employee continued to be restricted from use of the left arm.
On November 5, 2003, the employee returned to Dr. Barsanti. He stated that the cortisone shot had helped for about a week, after which his shoulder pain had gone back to the same level. Six sessions of physical therapy had not helped. Dr. Barsanti referred the employee for an orthopaedic consultation.
The employee was seen by Dr. Glenn W. Ciegler at St.Croix Orthopaedics on December 5, 2003. He had left shoulder pain, and numbness and tingling from the back of his neck all the way down into his fingers. Range of motion of the employee=s neck was noted to be excellent. Dr. Ciegler thought it unlikely that the employee had sustained a rotator cuff tear, but considered it advisable to order an arthrogram to rule this out in light of the fact that the employee had continued to have persistent pain for four months despite a cortisone injection and physical therapy. The doctor authorized the employee to work under moderate restrictions for his shoulder, forearm and hand.
The arthrogram, performed on January 12, 2004, showed no evidence of a rotator cuff tear. On January 16, the employee again saw Dr. Ciegler who noted that the employee showed excellent range of motion in his shoulder and no crepitation. He diagnosed left upper extremity pain of uncertain etiology, and recommended that the employee undergo a neurologic assessment to rule out an underlying neurologic process, as the employee continued to complain of numbness and tingling and shooting pain from his neck to his fingers. He continued the employee under moderate restrictions of undetermined probable duration.
The employee then returned to Dr. Barsanti, reporting that he still had pain from the left side of his neck down his left shoulder and into the upper back, as well as numbness down his left shoulder and into his left hand. Dr. Barsanti noted paraspinous spasm and tenderness in the employee=s neck, and his left shoulder was globally tender. Noting Dr. Ciegler=s recommendations, Dr. Barsanti recommended scheduling an EMG of the employee=s upper extremities and a CT of his cervical spine.
The employee was evaluated by Dr. Thomas J. Raih on behalf of the employer and insurer on March 18, 2004. Dr. Raih found no rotator cuff weakness but did note that the employee had mild shoulder impingement symptoms, primarily pain with slight limitation of motion of the left shoulder. He diagnosed a mild subacromial impingement, and offered the opinion that the employee=s injuries had been temporary in nature, had now resolved without any permanent disability, and that maximum medical improvement had been reached as of the January 16, 2004, examination by Dr. Ciegler. In his view, no ongoing treatment was needed and the employee could return to work Aas tolerated.@ He did recommend that the employee limit overhead activities for approximately one month on returning to work Auntil he tolerates his work well.@
On March 19, 2004, the insurer filed a notice of intention to discontinue (NOID) temporary total disability compensation on the basis that there was no credible medical evidence to support a claim of ongoing disability relative to a left shoulder condition. The insurer subsequently denied authorization for the recommended testing. The employee requested an administrative conference, which was held on April 6, 2004. The compensation judge concluded that the employee=s restrictions were more likely related to a claimed neck injury, not admitted by the employer, than to the admitted left shoulder injury. Discontinuance was granted. The employee objected to discontinuance, resulting in the hearing below.
The employee was again seen by Dr. Barsanti on May 3, 2004. He was still having neck pain, headaches and pain in the left shoulder. Examination revealed paraspinous tenderness and spasm in the neck, left trapezius and shoulder tenderness, and a restricted range of motion in left shoulder abduction. Dr. Barsanti noted that the insurer had declined further evaluation of the employee=s neck and shoulder. The employee told the doctor he was applying for medical assistance. Dr. Barsanti prescribed Naprosyn and Vicodin and deferred further evaluation until the employee=s Ainsurance situation has stabilized.@ The employee also told Dr. Barsanti that he had been seeking work with the assistance of a QRC, but that the extent of his restrictions was making his job search difficult. He asked if he could be given less stringent work restrictions. Dr. Barsanti agreed to do this, and issued work restrictions stating that the employee was Aoff work because of L neck/shoulder pain@ and was restricted from lifting over 50 pounds; he could lift from 11-50 pounds up to 33 percent of his workday, and lift 10 pounds or less without limitation.
On June 16, 2004, the employee found post-injury employment through the Work Connection and was still working as of the date of the hearing below. The question of the employee=s entitlement to any wage loss benefits after that date was not addressed below.
The employee=s Objection to Discontinuance was heard on July 1, 2004, before Compensation Judge William R. Johnson. Following the hearing, the compensation judge found that the employee=s shoulder injury continued to be a substantial contributing factor in the employee=s need for ongoing restrictions. He awarded temporary total disability for the period from March 11, 2004 to June 15, 2004. The employer and insurer appeal.
Minn. Stat. '176.101, subd. 1(h), provides that A[t]emporary total disability compensation shall cease if the employee has been released to return to work without any physical restrictions caused by the work injury.@ The employee was still under medical restrictions from Dr. Ciegler and Dr. Barsanti as of the date of the employer and insurer=s NOID and thereafter during the entire period for which temporary total disability compensation has been claimed. The compensation judge found that these restrictions were in part due to the employee=s left shoulder condition. Accordingly, the compensation judge denied the requested discontinuance.
The employer and insurer assert that substantial evidence fails to support the compensation judge=s finding that the employee=s restrictions were the result of the employee=s admitted left shoulder condition, as opposed to a possible cervical injury or condition for which liability has not been admitted nor at issue at the hearing below.
Specifically, they point to the fact that medical testing had ruled out a rotator cuff tear and had failed to reveal the organic cause of the employee=s left shoulder symptoms, and that the employee=s treating physicians, who had raised the possibility that the employee might have a neurologic condition related to his neck, had requested further testing in the form of a cervical CT scan and an upper extremity EMG, both of which had been denied by the insurer. The employer and insurer further rely on the opinion of their medical expert, Dr. Raih, who opined that the employee had sustained a temporary injury to the left shoulder which had resolved without any permanent disability.
The compensation judge relied principally on the records of Dr. Barsanti, who continued the employee under work restrictions on May 3, 2004, after he came in seeking less stringent medical restrictions to help him in his job search. Dr. Barsanti=s records for that date are somewhat ambiguous as to his assessment of the nature or cause of employee=s condition. The return to work authorization form Dr. Barsanti signed on that date merely indicates that the restrictions were Abecause of L Neck/Shoulder pain.@ The doctor=s chart notes list as the employee=s diagnoses: ALeft shoulder and neck pain. Left upper extremity neuropathy.@ Dr. Barsanti also described the employee=s pain as Aneck pain, headaches, pain down to the left shoulder,@ which can be read in a manner consistent with the employer and insurer=s theory that the employee was being treated for a neck injury, with his shoulder symptoms viewed as secondary to that condition.
On the other hand, we note that Dr. Barsanti recorded that the employee had left trapezius and shoulder tenderness, and that his left shoulder range of motion was restricted in abduction, which would seem to be consistent with problems associated directly with the shoulder rather than referred neuropathic symptoms from the cervical spine. We note also that no objective evidence is present to demonstrate that the employee even has a cervical neuropathy, as the testing which the employee=s physicians recommended to rule out such a condition as a cause of the employee=s symptoms has never been performed. We do not think the compensation judge was required to conclude that the employee=s restrictions were related solely to a condition, the presence of which has remained entirely speculative. Finally, we note that even the employer and insurer=s expert recommended work restrictions of no overhead lifting related to the employee=s left shoulder condition for about a month following any return to work, and which thus applied throughout the employee=s claimed entitlement to temporary total disability benefits in this case.
Overall, we conclude that the compensation judge did not clearly err in finding that the employee=s left shoulder condition continued to play a substantial contributing role in the employee=s need for work restrictions during the period in question. The denial of discontinuance and the award of benefits are therefore affirmed.