MOHAMEDNUR NINI, Employee, v. GOLD=N PLUMP - LUVERNE, and KEMPER INS. CO.adm'd by GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, BLUE CROSS & BLUE SHIELD OF MINN./BLUE PLUS, MN DEP=T OF ECONOMIC SEC., and SIOUX VALLEY CLINIC, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 15, 2004
CAUSATION - GILLETTE INJURY. Where the finding that the employee sustained a Gillette injury was based on the opinion of the employee=s treating doctor which had adequate foundation, substantial evidence supports the decision of the compensation judge.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee was receiving medical treatment through the claimed period of temporary total disability and where the QRC concluded that the employee was unemployable, substantial evidence supports the compensation judge=s award of temporary total disability compensation.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Patricia J. Milun
Attorneys: Kristen Anderson Ryan, Johnson & Condon, Minneapolis, MN, for the Appellants. Mark W. Shepherd, Von Holtum, Malters & Shepherd, Worthington, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the decision of the compensation judge that the employee sustained a Gillette injury on January 4, 2002. The employer and insurer also appeal from the compensation judge=s award of temporary total disability compensation and rehabilitation services. We affirm as modified.
Mohamednur Nini, the employee, was born in Ethiopia on December 10, 1950. He emigrated to this country in 1999. The employee is unable to speak, write, or read English. The employee resided in Luverne, Minnesota at the time of his claimed injury and at the time of hearing.
The employee started working in 1999 at the Ramkota Hotel in Sioux Falls, South Dakota, doing laundry and making beds for about three months. He then went to work for Swift and Company, a meat packing plant in Worthington, Minnesota. Because of his religious beliefs the employee was uncomfortable working at a job which required handling pork so he left Swift as soon as he found the job at Gold=n Plump in February 2000.
Gold=n Plump maintains a poultry processing plant in Luverne. The employee worked at the plant in a variety of production line assignments. The employee began experiencing symptoms in his right upper extremity in January 2002 when he was working the trim line. Witnesses at the hearing disagreed about the body positioning required to do this assignment. The employee testified that the work was very repetitive and that the production line moved at a rate of 32 to 42 chickens a minute.
The employee consulted with Dr. Larry Lyon at the Luverne Medical Center on January 8, 2002. He was complaining of pain in his right shoulder and an assessment was made at that time of tendonitis/bursitis, right shoulder, secondary to overuse. Dr. Lyon placed the employee on anti-inflammatory medication and restricted the employee to light duty work with limitations on use of his right arm. When the employee returned to the clinic on January 21, he brought with him a note from the employer denying workers= compensation liability on the grounds that the employee=s condition was pre-existing. Dr. Chesley, who saw the employee at that time, questioned whether the employee had a rotator cuff injury to his right shoulder and commented in the chart notes, Ait is most likely work related and should be covered as such.@ Dr. Chesley recommended an MRI but this procedure was not authorized by the employer and insurer.
The employee returned to Dr. Lyon on January 28, 2002 with a complaint of continued right shoulder pain. Dr. Lyon also recommended an MRI or an orthopedic consultation and restricted the employee from any use of his right arm.
The employee was terminated by the employer on February 1, 2002. The employer charged that the employee was absent from his line job for a 40 minute period. The employee admitted he left the line to use the bathroom but denied he was gone for the amount of time alleged by the employer. The employee has not returned to any employment since that time.
The employee returned to Luverne Medical Center on March 25, 2002 and saw Dr. T. S. Mulder with complaints of persistent bilateral shoulder pain, right greater than left. Dr. Mulder suggested an MRI and also completed a form indicating that the employee was unable to work. The MRI showed a supraspinatus tendonitis as well as a possible partial tear and an enlarged AC joint. The employee was referred to an orthopedist, Dr. Brian Aamlid at VanDemark Orthopedic Specialist.
The employee saw Dr. Aamlid on June 5, 2002. Dr. Aamlid=s impression was of right shoulder impingement and a therapeutic injection of the right shoulder was done. Dr. Aamlid also recommended nerve conduction studies which were done and which showed evidence of mild right carpal tunnel syndrome. A therapy program for his shoulder and his wrist was recommended on his June 25 visit but no improvement was noted when he returned on August 21, 2002. Dr. Aamlid referred the employee for a second opinion on possible surgery options.
The employee consulted with Dr. Walter Wynkoop on August 29, 2002. Dr. Wynkoop found positive Tinel and Phalen signs in the right wrist on examination and the right shoulder showed mild impingement signs. Dr. Wynkoop diagnosed right carpal tunnel syndrome and right shoulder subacromial impingement with rotator cuff tendonitis. He recommended a right carpal tunnel release with further treatment dependent on the results of the surgery. The right carpal tunnel surgery was done by Dr. Wynkoop on September 4, 2002.
The employee was also seen at the request of the employer and insurer for the first of two exams by Dr. John Dowdle on September 9, 2002. Dr. Dowdle took the same history recorded by the other doctors that the employee had seen up to that date, a history that the right arm symptoms began after performing a fast paced production job at Gold=n Plump. Dr. Dowdle=s impression was of bilateral acromioclavicular joint degeneration and inflammation with bilateral shoulder pain and a recent carpal tunnel surgical release. It was Dr. Dowdle=s opinion that the employee=s condition was not the result of his work activities but was due to an underlying degenerative process.
The employee continued to treat with Dr. Wynkoop. While he reported on September 11, 2002 that his right hand was no longer numb and that there was less pain in the forearm, he still had discomfort in the right shoulder. The employee was released to return to work with a ten pound lift limit on his right arm and was given exercises for his shoulder. On a return visit of November 7, 2002, Dr. Wynkoop offered arthroscopic subacromial decompression and distal clavicle resection of the right shoulder as a treatment option to the employee. The employee accepted this treatment proposal and the surgery was done on December 16, 2002. Subsequent visits with Dr. Wynkoop showed improvement in the shoulder symptoms but continuing reports of pain and limitations.
On December 23, 2002 the employee met with QRC Thomas Witty, Vocational Rehabilitation Unit (VRU), Department of Labor and Industry for a rehabilitation consultation. Mr. Witty recommended medical management at that time. The employee received some private placement assistance but VRU opted not to proceed with job placement services due to the employee=s Amultiple employment barriers@, primarily his inability to write, read or speak English in combination with his restrictions on use of his right arm.
The employee was seen by Dr. Dowdle for a re-examination on April 18, 2003. On this exam, Dr. Dowdle found no Apositive examination findings that are objective in nature.@ Dr. Dowdle again indicated his opinion that the employee=s shoulder and wrist conditions were not the result of his employment at Gold=n Plump and that there was a significant psychogenic factor to the employee=s ongoing complaints of pain. However, Dr. Dowdle found both the carpal tunnel release and the shoulder surgery to be reasonable treatment. Dr. Dowdle concluded that the employee was not in need of restrictions for his wrist or shoulder.
Dr. Wynkoop testified by deposition on June 24, 2003. Dr. Wynkoop was given a hypothetical question by the employee=s attorney to consider along with his treatment of the employee and on the basis of that information, concluded that the work activity at the employer was a substantial contributing factor in the employee=s right wrist and shoulder conditions. Dr. Wynkoop stated that he released the employee to work without restrictions as of May 1, 2003.
The employee had filed a claim petition and a hearing was held on July 15, 2003 before Compensation Judge Patricia Milun. In her Findings and Order of September 15, 2003, the compensation judge determined that the employee had sustained a Gillette injury to his right wrist and right shoulder on January 4, 2002. She awarded temporary total disability compensation benefits from February 1, 2002 through April 30, 2003 and ordered reimbursement to medical providers, to the Department of Economic Security for unemployment benefits, and to VRU for rehabilitation services. The employer and insurer appeal.
On appeal, the employer and insurer argue that the compensation judge erred in determining that the employee sustained a Gillette injury on January 4, 2002 since her finding lacked the support of substantial evidence in the record.
The question of whether a Gillette injury occurred is dependent on the medical evidence. Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987). The compensation judge here accepted the opinion of Dr. Wynkoop over that of Dr. Dowdle. It was Dr. Wynkoop=s opinion that the employee had sustained a Gillette injury as a result of his employment activity at the employer. The choice between competing medical opinions is within the province of the compensation judge and findings based upon that choice will generally not be reversed by this court. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The employer and insurer argue however that Dr. Wynkoop=s opinion lacked foundation in that he had not reviewed the video tapes of the production line jobs at the employer. However, Dr. Wynkoop was familiar with the employee=s condition through his treatment and during the deposition, the doctor was given a hypothetical question setting forth details of the employee=s job. The attorney for the employer and insurer had opportunity to question this description and attempt to change the doctor=s conclusion based upon a different understanding of the job duties. There is ample foundation for Dr. Wynkoop=s opinion. Scott v. Southview Chevrolet, 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1987).
The determination of the compensation judge on causation is affirmed.
Temporary Total Disability
The employer and insurer contend that the compensation judge erred in awarding temporary total disability compensation benefits. The employer and insurer point to (1) the alleged lack of restrictions between April 9, 2002 and September 2002, (2) the lack of job search by the employee, and (3) the employee=s alleged lack of veracity.
On the first point, while there is no piece of paper setting out detailed restrictions for the period indicated, this does not mean that the employee had no physical restrictions. The employee continued to treat for his shoulder and wrist problems from January 4, 2002, through May 1, 2003, as best he could given the lack of insurance. At no time was the employee ever released to work on more than a one arm basis by his treating doctor. The last medical note before the period in question restricted him from all work. The employee testified to continued symptoms he had during this time. Substantial evidence exists on the record that the employee was unable to return to his previous employment due to his work injury during the period of the compensation judge=s award.
As to the second point, the extent of job search required to obtain temporary total disability compensation and whether a job search is required is a fact question for the compensation judge to determine. A diligent job search Ais a search that is reasonable under all the facts and circumstances.@ Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988). The compensation judge accepted the conclusion of the QRC that the employee=s physical restrictions from his work injury when combined with his language barriers rendered the employee unemployable. As the compensation judge pointed out in her findings, this vocational opinion was Auncontroverted@ and serves as support for her determination.
Finally, the employer and insurer argue that the employee=s alleged lack of veracity should have raised questions as to the necessity of any restrictions since those restrictions were based primarily on the employee=s complaints of pain. As support for this argument the report of Dr. Dowdle is referenced and specifically his conclusion that the employee needed no restrictions after September 9, 2002. The compensation judge, however, rejected the opinion of Dr. Dowdle. Further, credibility of witnesses, including the employee, is a question for the fact finder. Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988); Patnode v. Stock Building Supply, slip op. (W.C.C.A. Dec. 1, 2003).
Clearly, in accepting the employee=s claim, the compensation judge found the employee credible and we find no basis to reverse the compensation judge=s award of temporary total disability compensation on this basis.
The compensation judge=s award of temporary total disability compensation is affirmed.
The compensation judge found that VRU should be reimbursed for vocational services provided to the employee. According to its intervention motion and subsequent amendments, those services were provided through June 12, 2003. The employer and insurer point out that the compensation judge found the employee was released to return to work without restrictions as of May 1, 2003 and that after that date the employee would not be entitled to rehabilitation services. The employee has not contested this position and VRU has not filed a brief. Accordingly, the order of the compensation judge is modified to award reimbursement to VRU of rehabilitation services provided before May 1, 2003.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).