SCOTT TABER, Employee/Appellant, v. WASTE MANAGEMENT, and RELIANCE NAT=L INS./GALLAGHER BASSETT SERVS., Employer-Insurer, and MANKATO CLINIC, GALVIN REHABILITATION, and MN DEP=T OF EMPLOYMENT & ECONOMIC DEV., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 21, 2004
TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE. Where there was substantial evidence in the record that the employee had no employment restrictions from his work injury during the time for which benefits were claimed, the compensation judge=s denial of the employee=s claim for temporary total and temporary partial disability compensation is affirmed.
REHABILITATION - SUBSTANTIAL EVIDENCE. Where there was substantial evidence in the record that the employee had no employment restrictions from his work injury, the compensation judge=s determination that the employee was not a qualified employee and not eligible for rehabilitation services is affirmed.
APPEALS - SCOPE OF REVIEW. Where the issue of the employee=s wage on the date of injury was not raised in the notice of appeal, this court has no authority to consider the issue.
Determined by Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: Ruth M. Harvey, Chesley, Kroon, Chambers, Harvey & Carpenter, Mankato, MN, for the Appellant. Adam D. Rosenfield, Johnson & Condon, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge=s denial of his claim for temporary total and temporary partial disability benefits and of his request for rehabilitation services. We affirm.
On October 8, 1999, Scott Taber, the employee, was working as a truck driver for the employer, Waste Management, picking up residential and commercial trash. While he was placing material in the back of his truck, his left arm was caught and crushed by the blade which moves the trash into the truck. He was not able to remove his arm by himself but needed assistance to do so. A supervisor came to the scene and took the employee to the emergency room at Immanuel St. Joseph=s Hospital, Mankato.
At the emergency room, swelling and tenderness were noted on the inside of the employee=s left forearm, just above the wrist. No fracture was shown on x-ray and no neurovascular deficit was found on examination. The employee was told to elevate his arm, use an ice pack and was given ibuprofen and Vicodin. The employee returned to the emergency room the next day because of continued and increased pain. Swelling and tenderness continued to be found in the left forearm but the employee denied having any numbness or tingling. It was noted that the employee had not been elevating his arm. No limitation in range of motion in his fingers, wrist, or elbow was seen on exam. The employee was given Percocet, advised to elevate his arm, use ice, and was taken off work. The employee was referred to the Orthopedic and Fracture Clinic for further care.
The employee was seen at the Orthopedic and Fracture Clinic on October 14, 1999, by Dr. Steven Curtis, the physician who had seen him at the emergency room on October 9. The employee told Dr. Curtis that his symptoms were beginning to improve somewhat. Swelling was noted on examination but Dr. Curtis found that the employee=s compartments in the forearm were quite soft, that active range of motion was normal and painless, and that there was no deficit on neurovascular examination. Dr. Curtis released the employee to one handed work until October 25, and referred the employee to physical therapy to regain grip strength and wrist flexion/extension strength.
On October 25, 1999, after having had two sessions with the physical therapist, the employee returned to the Orthopedic and Fracture Clinic where he saw Dr. Michael Kearney. The employee reported that his arm was much better, although there was still some soreness. Examination was normal except for Aa little bit of swelling.@ Dr. Kearney noted that the employee felt he could perform all his usual work and the employee was released to unrestricted work. Dr. Kearney stated the employee was at maximum medical improvement with no permanent partial disability and no need for further treatment. The parties stipulated at hearing that notice of maximum medical improvement was served on the employee on February 20, 2000.
The employee had his last physical therapy appointment on November 11, 1999. He Aoffered no complaints@ at this visit and advised the therapist that he did not have any restrictions imposed by a doctor or himself. The employee received ultrasound therapy and was then encouraged to exercise and strengthen his forearm. The employee testified that, by this time, he was doing his regular job which required lifting an average of between 35 and 50 pounds.
The employee did not seek medical attention for his left forearm for the next two and one half years. During this time, he continued to work his regular job with no lost time due to his injury and no evidence of modification of his job to accommodate his injury. The employee treated during this time with his family doctors at Mankato Clinic. The employee made 19 visits to the Mankato Clinic for a variety of maladies, including a work injury to his right hand in July 2000. There is no reference to the left forearm in any of those visits. On February 7, 2001, the employee had a DOT physical in which the doctor noted the exam, including the upper extremities, was normal.
On June 24, 2002, the employee saw Dr. John Benson at Mankato Clinic. He had symptoms of left wrist and hand pain which had started a couple of days previously. He had no explanation for the onset of pain but told the doctor about his 1999 work injury. The employee stated that Agenerally it doesn=t bother him with the exception of some mild tingling and occasional soreness but nothing too bothersome apparently until two days ago.@ Dr. Benson concluded the employee had tendonitis, provided a splint and medication and placed him on work restrictions for one week of no repetitive use of his left hand. In the workability form he completed on this date, Dr. Benson identified the condition as non-work related. The employee returned to the clinic twice in July and once in August but there is no reference to left wrist pain.
The employee was terminated by the employer on or about September 12, 2002. The employee apparently violated company policy by combining recyclable material with trash. The employee filed a claim petition on October 7, 2002, seeking wage loss and medical benefits as the result of his October 8, 1999, work injury.
The employee returned to Dr. Benson on October 29, 2002, with Apersistent left wrist discomfort. This stems back from an injury he had on the job at Waste Management in October of 1999.@ The employee told the doctor that his wrist bothered him when he lifted anything heavy or when he engaged in repetitive activity. Examination of the left wrist was normal except for pain with resistance to supination and pronation. Dr. Benson assessed Apersistent left wrist pain with occasional exacerbations.@ A workability form was completed in which Dr. Benson released the employee to work without restrictions. Dr. Benson referred the employee for x-rays. The x-rays, taken on the same day, were read as normal with regard to the left wrist.
The employee was referred by his attorney to a QRC for rehabilitation services. As a part of preparing a rehabilitation consultation, the QRC obtained a report of November 7, 2002, from Dr. Benson. In his report, Dr. Benson advised limited repetitive use of the left arm and no lifting of over 50 pounds with the left arm. Dr. Benson attributed these restrictions to the employee=s 1999 work injury. No treatment recommendations were made.
The employee was evaluated on behalf of the employer and insurer by Dr. Benjamin Levine on March 12, 2003. Dr. Levine took a history from the employee, performed an examination and reviewed the medical records. Dr. Levine concluded that, although the employee had sustained a crush injury to his left forearm in October 1999, the employee did not have a Acurrent condition@because of the lack of objective findings on exam. Dr. Levine also stated that the employee had reached maximum medical improvement as of October 25, 1999, and had been able to work without restrictions since that date. In Dr. Levine=s opinion, the employee did not have any permanent partial disability and did not need any additional treatment.
The employee was off work for some time following his termination by the employer. Beginning in November 2002, the employee initiated a job search with the assistance of his QRC. In May 2003, a job possibility developed of working on a loading dock at a nursing home. The employee returned to the Orthopedic and Fracture Clinic for evaluation of the job duties.
The employee saw Dr. R. Wynn Kearney on May 13, 2003. The employee reported to Dr. Kearney that he had aching discomfort in his forearm which was accentuated by strenuous work activity. Dr. Kearney concluded that the employee was capable of working at the described job and also stated Ahe could engage in heavy and strenuous physical activities.@ The employee began working a part-time job as a dock/laundry person at a local nursing home on May 27, 2003.
The employee=s claim petition, his subsequent amended claim petitions, and his rehabilitation request were consolidated for hearing and were heard by Compensation Judge Carol Eckersen on January 8, 2004. The issues for determination were the employee=s entitlement to temporary total and temporary partial disability compensation, his eligibility for rehabilitation services, and the weekly wage of the employee on the date of injury. In her Findings and Order, served and filed March 9, 2004, the compensation judge found against the employee on these issues. The employee appeals.
The classic definition of total disability is found in Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133, 24 W.C.D. 290, 295 (1967) in which the court stated:
a person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in insubstantial income.
In order to be entitled to temporary partial disability, an employee must establish, as one of four factors, a physical disability. Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976). Central to both definitions is a requirement that the employee must have restrictions from his or her work injury which interferes with a return to employment. An employee who has no work restrictions is not eligible for wage loss benefits. Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).
In the present case, the compensation judge accepted the opinion of Dr. Levine that the employee had no restrictions attributable to his work injury after October 25, 1999. In accord with Dr. Levine=s opinion was the opinion of one of the employee=s treating doctors, Dr. Michael Kearney. Dr. R. Wynn Kearney stated in May 2003, that the employee was capable of Astrenuous physical activities.@ Dr. John Benson, the employee=s family doctor, indicated on the workability form he completed in October 2002, that the employee had no work restrictions. Although the employee testified that his work injury caused symptoms which affected his ability to perform his pre-injury employment, that testimony is inconsistent with his lack of medical care for his left forearm although he saw his doctor on a number of occasions for other conditions, with his statement to his doctor in June 2002 that his left forearm was only occasionally sore, and with the fact that he performed his regular job duties for over two and one half years after his injury until he was terminated for reasons not related to his work injury. We find substantial evidence in the record as a whole to support the compensation judge=s denial of wage loss benefits and her determination is affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
The compensation judge also denied wage loss benefits on findings that the employee had reached maximum medical improvement more than 90 days before the period claimed for temporary total disability, that the employee had not engaged in a diligent job search, and that the employee was terminated by the employer for misconduct which would preclude him from the receipt of temporary total disability under Minn. Stat. ' 176.101, subd. 1(e)(1). The employee has appealed these findings. Given our conclusion that other, sufficient grounds for denial of wage loss benefits exist to support the compensation judge=s decision, we do not address these other issues.
An employee is eligible for rehabilitation services if he or she is a qualified employee under Minn. R. 5220.0100, subp. 22. A qualified employee is one Awho, because of the effects of a work related injury or disease. . . is permanently precluded or is likely to be permanently precluded from engaging in. . . the job the employee held at the time of injury.@
The compensation judge found the employee was not a qualified employee and not eligible for rehabilitation services. As we have discussed above, substantial evidence supports the compensation judge=s finding that the employee did not have any employment restrictions due to his work injury after October 25, 1999. The compensation judge=s conclusion that the employee was not a qualified employee and her denial of rehabilitation services is affirmed.
In his brief, the employee argues that the compensation judge=s determination of his weekly wage on the date of injury was in error. In response, the employer and insurer contend that because the compensation judge=s finding on this issue was not appealed, this court has no authority to consider the issue. We agree.
The review of this court is limited to those issues raised by the parties in the Notice of Appeal. Minn. Stat. ' 176.421, subd. 6. The compensation judge=s determination of the wage was in Finding 3; the employee=s Notice of Appeal identified Findings 2, 4, 6, 8, 9, 11, 14 as the findings which were appealed. While we have held in the past that an issue may be considered if language in the Notice of Appeal provides adequate notice of the issues raised, no such language exists in the Notice of Appeal filed in the present case. Odash v. Pepsi Cola Co., slip op. (W.C.C.A. Apr. 25, 2000).