STEVEN HAMANN, Employee, v. SYNGENTA CORP. and OLD REPUBLIC/GALLAGHER-BASSETT SERVS., INC., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JUNE 10, 2004
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where substantial evidence in the form of the employee=s testimony supported the compensation judge=s finding of a reasonably diligent job search by an employee having work restrictions from his injury, he qualified for temporary total disability compensation.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Where the employee=s treating physician continued to recommend further surgery for the employee=s right upper extremity condition, substantial evidence supported the compensation judge=s finding that maximum medical improvement had not yet been reached.
MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY. Where a bill for medical charges was not supported by evidence as to the specific treatments provided, and where the employee apparently also treated for another condition with the same doctor during all or part of the period in question, there was insufficient evidence to support an award of reimbursement for the treatment charges billed.
Affirmed in part and vacated in part
Determined by Pederson, J., Rykken, J., and Stofferahn, J.
Compensation Judge: Jennifer Patterson
Attorneys: Roderick C. Cosgriff, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants. Rodney C. Hanson, Anderson, Larson, Hanson & Saunders, Willmar, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s award of temporary total disability compensation, from the award of medical expenses, and from the finding that maximum medical improvement has not yet been reached. We affirm in part and vacate in part.
The employee, Steven Hamann, is a life-long resident of Swift County, Minnesota, where he operates a farm near Holloway. For a number of years the employee has supplemented his farming income by seasonal work during the late fall, winter and early spring months. His relationship with the employer began in October 1987, when the employee was hired as a seasonal worker through March 31, 1988. The employee returned to seasonal work for the employer each fall, with the exception of a period between 1995 and 1997, through the 2001-2002 employment season. After 1998 he was rehired each year in November and worked until February, March, or April. His usual work for the employer involved filling bags of soybeans and sunflower seeds, sewing them closed, and moving and stacking them by hand or with the aid of a forklift.
On November 12, 2001, the employee began work for the employer=s 2001-2002 season. Some weeks later, the employee sustained an admitted injury to his right elbow and arm when his glove caught on a nail on a pallet as he dropped the pallet onto a stack, causing his arm to be pulled and twisted downwards. The employee felt a Apop@ in his elbow but initially only a low level of pain Alike pulling a muscle@ and he finished his work shift. Later that evening, his arm became more stiff and sore. The employee continued to perform his work duties over the next few weeks, but his arm became progressively weaker, and on December 21, 2001, he sought medical attention for the problem from Dr. Roger Bauer, his family physician at the Affiliated Community Medical Center in Benson, Minnesota.
Dr. Bauer noted as history that the employee had injured his right forearm about three to four weeks earlier when a nail on a pallet of bean sacks caught his glove and pulled his arm down and inward. Since then the employee had experienced pain in the medial epicondylar area of the right elbow and in the right wrist, which had continued to worsen. Dr. Bauer diagnosed a strain and sprain of the right forearm muscles, elbow and soft tissue. He initiated conservative treatment consisting of a wrist splint, ice pack, ibuprofen and light duty work. The employee continued to work for the employer in his regular job but avoided repetitive gripping and lifting.
The employee returned to Dr. Bauer twice in January 2002. On January 4, 2002, he was somewhat improved, but when next seen on January 25, 2002, he was still having pain in his right forearm and upper arm, and Dr. Bauer concluded the employee still had a hyperextension and muscular soft tissue strain. X-rays suggested the possibility of a cortical injury to the medial epicondyle of the right elbow. The doctor referred the employee for an orthopedic consultation from Dr. Michael Holte, an orthopedic surgeon. Dr. Holte first examined the employee on February 8, 2002. His impression was of a sprain of the right forearm, suspicious for interosseous membrane sprain with recurrent exacerbation from the employee=s ongoing work activities with the employer. He recommended that the employee modify his work activity, discontinue ibuprofen and take celebrex, continue his wrist splint, and return in three weeks.
The employee=s seasonal employment with the employer ended on February 15, 2002. On March 1, 2002, the employee was seen again by Dr. Holte. The employee reported that despite his layoff at work he was continuing to have worsening right arm symptoms with pain and numbness, particularly discomfort in the elbow. On examination, Dr. Holte found the employee=s cubital tunnel very tender with palpation which reproduced his symptoms. He diagnosed a possible entrapment neuropathy and recommended a nerve conduction study and an evaluation by his colleague Dr. Donald Frisco in Aberdeen, South Dakota. The nerve conduction findings for the ulnar nerve showed a slow conduction velocity across the right elbow and were read as consistent with a right cubital tunnel syndrome. On April 18, 2002, the employee underwent right elbow surgery in the form of a cubital tunnel release with ulnar nerve transposition.
The employee saw Dr. Holte on June 21, 2002. The numbness in his arm had improved following the surgery but he still had pain in the right lateral epicondyle which was particularly bad with gripping and lifting. On August 1, 2002, the employee again returned to Dr. Holte. He continued to have some discomfort in the lateral epicondyle. Dr. Holte diagnosed lateral epicondylitis.
When seen by Dr. Holte on September 6, 2002, the employee reported he was doing poorly. His lateral epicondylitis had gotten worse and he could not do heavy or repetitive lifting because of pain radiating up into his right arm. Dr. Holte noted an apparent defect in the lateral epicondyle fascia in the form of a small bump in that region. He diagnosed recurrent symptoms from work-related lateral epicondylitis, and further suspected that the employee might have torn the extensor supinator muscle group. The doctor referred the employee for an MRI scan. He restricted the employee from lifting more than 50 pounds or doing repetitive lifting. In a Provider Report dated September 17, 2002, Dr. Holte stated that the employee had not reached maximum medical improvement from work-related lateral epicondylitis, and that it was too early to determine the extent of any permanent partial disability.
Early in September 2002, the employee stopped in at the employer=s office and mentioned to his supervisor, Curt Flegel, that he was planning to return to seasonal work for the employer again that year. In their testimony, the employee and Mr. Flegel had different recollections of the conversation at that meeting, the employee recalling being told that there would be work available for him, while Mr. Flegel testified that he did not tell the employee that he would be rehired. Both agreed, however, that Mr. Flegel did not tell the employee that he would notbe rehired that year for seasonal work.
During late September and early October 2002, the employer hired four workers to fill the seasonal openings available for its second or evening shift. The employee, who had always worked the first shift, was not notified about or offered any of these openings.
When next seen by Dr. Holte on October 4, 2002, the employee continued to have prominence of the lateral epicondyle with tenderness and mild pain on resisted wrist extension. Dr. Holte noted that the MRI scan, which had been performed on September 20, had not addressed the condition of the employee=s lateral epicondyle. He diagnosed lateral epidondylitis and possible internal derangement involving the right elbow. The employee received a diagnostic and therapeutic injection to his right elbow joint. On October 18, 2002, the employee returned and told the doctor that the injection had helped his pain but he continued to have discomfort in the lateral aspect of the forearm in the biceps. Dr. Holte recommended continuing the employee=s current treatment augmented by two sessions of physical therapy for a range of motion and strengthening program.
On November 13, 2002, the employee was seen by Dr. Paul Cederberg for an examination on behalf of the employer and insurer. Dr. Cederberg diagnosed a probable right elbow subluxation and right ulnar nerve neuroproxin. Dr. Cederberg stated that the employee=s treatment to date had been reasonable and that the employee should limit lifting to no more than 50 pounds with the right arm. However, in his view, the employee=s current symptoms were merely subjective and no further treatment was necessary. Dr. Cederberg concluded that the employee had now reached maximum medical improvement from his work injury with no resulting permanent partial disability.
Two days later, on November 15, 2002, the employee was seen again by Dr. Holte. He reported continued aching pain in his elbow and that he was experiencing some Acatching@ from the posterior aspect of the elbow. Dr. Holte injected the lateral epicondyle and recommended that the employee continue to use a lateral epicondylar splint.
Between November 13 and 18, 2002, the employer completed its seasonal hiring for the 2002-2003 season by hiring the last of four seasonal workers for its first shift. The employee was not one of those hired. Subsequently, the employee heard that some of his prior co-workers were back at work. He went to see Mr. Flegel to ask about his own return to work and was told that he was not going to be hired back. In December 2002, the employee started looking for other seasonal work, using local newspapers, the Willmar newspaper, and a want ad flyer called the APeach.@ He sought work in his local community and neighboring towns but was unable to find any seasonal work for the 2002-2003 season.
The employee also saw Dr. Holte again in December 2002 and reported that he continued to have pain. On January 17, 2003, Dr. Holte wrote to the radiologist who had performed the prior MRI scan. Noting that the employee clinically exhibited Arather significant lateral epicondylitis@, Dr. Holte requested a review of the scan to specifically address the condition of the employee=s extensor supinator muscle group at the attachment of the lateral epicondyle. In a revised report dated January 30, 2003, the radiologist reported findings in the region of the lateral tendon and lateral epicondyle that might represent a lateral epicondylitis.
The employee returned to see Dr. Holte on April 3, 2003. He continued to do poorly and his elbow was hurting more and more over the lateral aspect. The employee reported that he was about to start his field work. Dr. Holte opined that the employee was exhibiting classic symptoms of lateral epicondylitis and noted also that the employee had discomfort with resisted wrist examination. He told the employee to return in about three weeks and suggested that, due to the longstanding duration of the employee=s symptoms and their worsening, further surgery in the form of a lateral epicondylectomy and repair might be advisable. The employee was given a referral to one physical therapy session for ultrasound treatment and to set up a home exercise program.
When the employee returned to Dr. Holte on April 25, 2003, he was having complaints of shoulder discomfort in addition to his former symptoms. The employee apparently continued to treat with Dr. Holte for both the shoulder and elbow conditions through the date of hearing, October 9, 2003.
On September 13, 2003, the employee was re-examined by Dr. Cederberg on behalf of the employer and insurer. Dr. Cederberg did not consider any further treatment to be necessary for the employee=s right elbow problem, restated his opinions from the November 2002 report, and concluded that the employee=s right shoulder pain was the result of degenerative arthrosis of the AC joint which was not related to the work injury.
The employee filed a claim petition, seeking temporary total disability compensation and medical expenses. A hearing was held on the employee=s claims on October 9, 2003, before Compensation Judge William R. Johnson. In his Findings and Order, served and filed January 5, 2004, the compensation judge determined that the employee had not reached maximum medical improvement. The judge further found that the employee had made a reasonably diligent job search and awarded temporary total disability compensation for the period sought. The compensation judge also awarded reimbursement for the claimed medical expenses and mileage. The employer and insurer appeal.
1. Temporary Total Disability Compensation
The employee sought and was awarded temporary total disability compensation from November 13, 2002 to February 15, 2003, a period which corresponded approximately to the periods of seasonal employment for the employer in prior years. The employer and insurer appeal, contending that the employee failed to establish entitlement to temporary total disability compensation.
The employee testified about the job search he conducted, but did not offer into evidence any job logs or other written records. According to the employee=s testimony, he began looking for other seasonal work in December 2002, using local newspapers, the Willmar newspaper, and a want ad flyer called the APeach.@ He also visited some seasonal employers in his local community and several neighboring towns but their seasonal hiring was already completed and he was unable to find any work for the 2002-2003 season.
The employer and insurer assert that the compensation judge erred in finding that the employee had performed a reasonably diligent job search given the limited extent of the employee=s job search activities. They point out that the employee did not physically go to search for work in the city of Willmar, where, they contend, short-term and seasonal work opportunities might have been greater and where state job service assistance and temporary employment agencies might also have been available. In addition, they contend that the employee Aalso did not follow up with Syngenta in a timely manner about the possibility of seasonal employment.@ (Employer and Insurer=s brief at 18.)
The reasonableness and diligence of an employee=s job search must be evaluated by reviewing all circumstances surrounding that search. Lohman v. Pillsbury Co., 40 W.C.D. 45 (W.C.C.A. 1987). The question whether an employee has performed a sufficiently diligent job search to permit an award of benefits is a question of fact for resolution by the compensation judge, and A[i]t is not for this Court to second guess th[at] factual determination.@ Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983).
In the present case, the compensation judge could reasonably conclude that most of the seasonal jobs available to off-season farmers in the employee=s rather limited labor market were already filled by December 2002, when the employee learned that the employer was not going to rehire him and began searching for alternate seasonal work. The compensation judge reasonably excused the employee from failing to seek seasonal work prior to December 2002, as the employee had reasonably expected to return to his prior seasonal work. The court has long held that, where there appears to be a reasonable possibility that an employee might return to work with the prior employer, it may not be necessary that the employee engage in an immediate search for work elsewhere to establish eligibility for temporary total disability benefits. Glasow v. Gresser Concrete Masonry, slip op., (W.C.C.A. April 18, 1995). In light of these and other factors and the employee=s work restrictions we cannot conclude that the compensation judge erred in finding that the employee conducted a sufficiently diligent job search.
The employer and insurer next contend that the employee=s lost earnings were, in any event, the result not of his injury and resulting disability and restrictions, but instead were solely the result of economic conditions. Specifically, they point to testimony by the employer=s supervisor that the reason that the employee was not rehired by the employer was merely because fewer workers were needed for the 2002-2003 season than in prior years. Although there is no dispute that the employee has permanent restrictions due to the injury, they point out that the employee likely would have been physically capable of performing seasonal work for the employer, albeit in a somewhat modified fashion, as he was able to do for a couple of months after the injury. They contend that since the employee was not returned to work for the employer solely as a result of economic factors unrelated to his injury, there was no causal connection between his injury and his lack of earnings and he had no entitlement to workers= compensation wage loss benefits for the period awarded. They further contend that certain language in the compensation judge=s memorandum indicates that he imposed an improperly strict burden of proof over the question whether the employer=s failure to rehire the employee was merely the result of economic reasons unrelated to the injury.
We find this argument unconvincing. Regardless of the reason that the employer decided not to rehire the employee, there is clearly no dispute that the employer did not offer him employment during its 2002-2003 winter season. This was not a case of the employee refusing work which was actually available to him. It has long been held that an injured employee who has been laid off for economic reasons nonetheless is entitled to temporary total disability benefits if the employee is not able to secure other employment as a result of the work-related disability, a matter tested by the usual job search requirements. Johnson v. Rochester Silo, 34 W.C.D. 20 (W.C.C.A. 1981). We find substantial evidence in this record to support the compensation judge=s award of compensation.
2. Maximum Medical Improvement
Maximum medical improvement is the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated based upon reasonable medical probability. Minn. Stat. ' 176.011, subd. 25. Maximum medical improvement Aoccurs upon medical proof that the employee=s condition had stabilized and will likely show little further improvement.@ Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987). Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions and other relevant evidence. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989). Further, Amedical probability does not mean only the opinion of a physician.@ Hammer, at 529, 41 W.C.D. at 639.
The employer and insurer rely on the opinion of their medical expert, Dr. Cederberg, who stated that the employee had reached maximum medical improvement from the work injury by the date of his examination, November 13, 2002. The compensation judge, on the other hand, noted that it was the opinion of the employee=s treating physician, Dr. Holte, that further surgical treatment was likely to be needed. The judge inferred that the doctor believed that such treatment would likely result in further improvement. In reaching the factual conclusion that MMI had not been met, the compensation judge also reviewed all of the medical reports and records and the testimony of the employee. It is the role of the compensation judge to resolve any differences or conflicts between the medical experts. Generally, this court must uphold findings which are based on a compensation judge=s choice between conflicting expert opinion, unless the facts assumed by the expert on whom the judge relies are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s resolution of the fact issue regarding attainment of maximum medical improvement is affirmed.
3. Medical Expenses and Mileage
The employee sought and was awarded certain medical expenses for treatment by Dr. Holte pursuant to petitioner=s exhibit A3, a statement dated September 15, 2003, from Orthopedic Surgery Specialists in the amount of $608.20. The employee was also awarded medical mileage in the amount of $432.00 pursuant to petitioner=s exhibit B.
The employer and insurer argue on appeal that all or part of the awards of medical expenses and mileage were unsupported by substantial evidence. In particular, the appellants point out that the September 15, 2003, statement does not fully itemize the dates of service or the services provided and argue that the employee may have also treated for a right shoulder and cervical condition. Because the parties agreed not to litigate the employee=s right shoulder and cervical injury claims at the hearing below, the employee withdrew certain exhibits and apparently for this reason may have believed it was necessary to exclude from evidence the medical records for treatment with Dr. Holte from and after April 25, 2003, the date when the employee first began treating for the cervical and shoulder problems with that physician.
Part of the amount billed in the September 2003 statement was for a Abal. forward as of 08/15/03.@ It is not possible to determine from the evidence what dates of service and what treatment corresponds to this balance. The statement also lists charges for outpatient evaluation on July 25, 2003 and August 22, 2003, and for Aspecial reports@ on May 3, 2003. As the medical records for the dates of treatment were not in evidence, we do not think the evidence was fully adequate for the compensation judge to have made a determination as to the reasonableness and necessity of the treatment billed, or to have determined whether the charges were related to the right elbow injury. Accordingly, the award of reimbursement for the medical expenses billed in the September 15, 2003, statement is vacated without prejudice.
The dates in the employee=s mileage claim are supported by the corresponding medical records through April 3, 2003, and we see no reason why the compensation judge could not reasonably award mileage for those dates. As with the claimed medical bills, there are no records after that date which would indicate whether the visits to Dr. Holte were for his right elbow work injury or his neck and shoulder problems or both. The award of reimbursement of medical mileage after April 3, 2003 is vacated without prejudice.
 The parties and compensation judge adopted December 20, 2001, as the employee=s date of injury. This date was used in the First Report of Injury and in the employee=s claim petition. It is, however, quite clear from the employee=s testimony and from the records of Dr. Bauer, that this incident actually took place some time in late November 2001. The reasons for the date discrepancy are not evident, but as the December 20, 2001, date used below has not been disputed, we will not disturb it on appeal.
 This latter contention presumably refers to their argument at the hearing below that the employee=s job search was remiss in that he had failed to seek second shift employment with the employer, an argument which the compensation judge characterized as Aspecious@ in light of the fact that the employer had already filled all of its second shift positions prior to informing the employee that he would not be returning to his customary seasonal employment on the first shift.