ROBERT A. NELSON, Employee/Appellant, v. D&D PICKET d/b/a SKIPPER=S CAR WASH, UNINSURED, Employer, and MN DEP=T OF HUMAN SERVS., and MEDICARE/NORIDIAN ADMIN. SERVS., Intervenors, and SPECIAL COMP. FUND.
WORKERS= COMPENSATION COURT APPEALS
NOVEMBER 21, 2006
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that the employee=s work injury was not a substantial contributing factor in any wage loss sustained by the employee and did not result in any ratable permanent partial disability.
Determined by: Stofferahn, J., Rykken, J., and Johnson, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: Robert A. Nelson, pro se Appellant. Lorelei M. Hoyer, St. Paul, MN, for the Special Compensation Fund.
DAVID A. STOFFERAHN, Judge
The compensation judge found the employee injured his right rhomboid muscle on September 10, 2001. The compensation judge concluded that the work injury was not a substantial contributing factor in any loss of earnings after that date and did not result in any permanent partial disability. The employee appeals.
Robert Nelson, the employee, was employed on a part-time basis at Skipper=s Car Wash on September 10, 2001, when he injured the rhomboid muscle in his right shoulder.
At the time of his work injury in 2001, Mr. Nelson had work restrictions from an earlier work injury. He had received an injury to his low back in April 1986, while employed at St. Mary=s Hospital. In 1989, the employee was evaluated by Dr. Robert Wengler at the request of the attorney who then represented him in his workers= compensation claim. Dr. Wengler concluded that he had a herniated disc in his low back and provided him with a rating of 14 percent permanent partial disability of the whole body.
Sometime in the early 1990's, the employee was awarded Social Security disability. At the workers= compensation hearing, the employee testified that benefits were awarded in substantial part because of a learning disability that caused him to be unable to read or write beyond a third grade level. The records also indicate that, in addition to his low back condition, the employee had other health issues, including severe cardiac disease. The employee testified that because of his receipt of Social Security disability benefits, he is limited in the amount of earnings he can have from employment without reducing his Social Security benefits.
The employee had a crush injury to his right hand on November 14, 1996, while working as a janitor at Soldier=s Field Plaza in Rochester. The employee was seen at Mayo Clinic where his injury was diagnosed as a focal dystonia. The employee was in contact with a QRC at the Vocational Rehabilitation Unit of the Department of Labor & Industry in Rochester at the recommendation of the attorney who represented him for the 1996 injury. In January 1998, the QRC concluded that the employee would not be a good candidate for rehabilitation services. The medical information available to the QRC indicated restrictions of no forceful grasping with the right hand and limited repetitive light grasping or fine motor activity. The employee had stopped working for the date of injury employer in December 1996, and had not worked since then except for a period of about four months when he worked at a Burger King.
In 1998, the employee went to work at Aristo Car Wash in Rochester. The car wash is a self-service operation in which customers drive into a bay and use a coin operated power wand to wash the vehicle. The employee worked 20 hours a week and was paid $100.00 a week. The employee=s job duties primarily involved keeping the facility clean. He swept, picked up trash and used the power wand to clean out the bays. The employee also maintained some petty cash to provide change for customers.
The employee testified at the hearing that he had continuing restrictions from the 1986 low back injury. He did not do any reaching, twisting or pulling and he had a lifting limit of ten to fifteen pounds. The employee=s girlfriend, Amanda Nelson, no relation to the employee, helped him with some of his duties at the car wash. She emptied garbage cans, cleaned out vacuum cleaners, used a squeegee to clean out the bays, cleaned out a ditch on the property, and handled petty cash. The employee still did sweeping.
In May 2000, the employee treated with Dr. Robert Jensen at Jensen Chiropractic Clinic in Rochester for right shoulder pain. The employee testified at the hearing that this problem began when he was given the wrong dosage of blood pressure medication, passed out, and fell on his right shoulder. The employee was sent by Dr. Jensen to the Noran Neurological Clinic for an MRI of the right shoulder. The MRI was read as showing A1. Minor mucoid degeneration within the super spraspinatus tendon. Not evidence for rotator cuff tear. 2. Moderate degenerative hypertrophy within the AC joint.@
In 2000, the car wash was purchased by Donald and Deitra Pickett and was operated as Skipper=s Car Wash. The employee=s duties and rate of pay remained the same and the employee continued to be helped in his job by his girlfriend.
The employee continued to treat with Dr. Jensen for his right shoulder in 2001. According to Dr. Jensen=s records, the employee stated on April 27, 2001, that his right shoulder is Areal bad aches all the time.@ Similar complaints about his right shoulder were made on May 4, May 14, May 18, June 1, June 15, July 13, and August 10.
On September 10, 2001, the employee was at work and was pulling on a garden hose to wash out a bay when he felt a sharp pain in his back just below the right shoulder. The employee sought care from Dr. Jensen on September 12. The note from that visit refers to Amed. back is very sore. Radiates into neck.@ No mention is made of the work injury.
The employee missed no time from work after the work injury. He continued to work at his usual duties with the same assistance from his girlfriend until he was laid off on December 28, 2001. The employer claimed the lay off was because business was slow. The employee claimed he was laid off in retaliation for filing a workers= compensation claim. He did not assert that he was unable to do the duties at Skipper=s.
The employee went to Mayo Clinic on November 16, 2001. The history he provided was of pulling on a garden hose when he felt pain in the rhomboid area of his right shoulder. A referral was made to the Musculoskeletal Clinic on December 10, 2001. The physician there stated AI don=t know why he has this persistent pain.@ Referral to physical therapy or to a pain clinic were mentioned as possible treatment options.
The employee then saw Dr. Robert Yang in the Physical Medicine and Rehabilitation Clinic at Mayo Clinic on December 26, 2001. Dr. Yang=s exam was normal except for tenderness at the medial edge of the scapula on the right. Dr. Yang reviewed a number of treatment options but there are no records of treatment until November 25, 2002, after an EMG which was read as being Aunremarkable@ by Dr. Yang.
Dr. Yang referred the employee to Dr. E. L. Gross who saw the employee on December 30, 2002. Dr. Gross made no treatment recommendations, stating Ahe has had good response to therapy and I make no additional recommendations.@ The impression at that time was of Ainjury to the right medial rhomboid (traction injury).@ Dr. Gross subsequently provided a rating of permanent partial disability of seven percent of the whole body which was attributed to the work injury. Work restrictions were provided by Dr. Gross on July 1, 2003, of occasional lifting of no more than ten pounds.
The employee was evaluated by Dr. William Akins on behalf of the Special Compensation Fund on October 26, 2005. Dr. Akins concluded that there was no objective evidence to support the employee=s complaints and no basis for stating that a torn rhomboid muscle would be symptomatic after four years. He stated in his report that if an injury had actually occurred on September 10, 2001, it was at most a temporary injury or aggravation of no more than three months duration.
The employee=s claim was heard by Compensation Judge Peggy Brenden on March 15, 2006. In her Findings and Order of April 26, 2006, the compensation judge found that the work injury of September 10, 2001, did not result in any permanent partial disability and was not a substantial contributing factor in his claim for loss of earnings.
In the papers he has filed with this court and in the argument he made at oral argument, the employee raised a number of points which he wants this court to consider. In summary, the employee is convinced that the evidence calls for an award of compensation.
We need to state at the beginning what this court does and what it does not do. We do not retry the case and we do not look at the evidence to see if a different result is possible. Our review in a case such as this is to decide if there is substantial evidence which supports the compensation judge=s decision. If we find substantial evidence, the decision of the compensation judge is to be affirmed. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
In this case, the compensation judge agreed with the employee that he hurt his right rhomboid muscle on the job on September 10, 2001. However, just because there has been an injury on the job does not mean that an injured worker is automatically entitled to payment of compensation benefits. In this case, the employee needed to establish that the work injury was a substantial contributing factor in his wage loss and in his claimed permanent partial disability. The compensation judge decided the employee had not established his claims. Our issue on review is whether the compensation judge=s decision is supported by substantial evidence.
The employee says that his doctors all agree that his physical problems were the result of his work injury and he argues that all of these doctors can not be wrong. It is true that the Mayo Clinic doctors supported the employee=s claim but we find that in each case the support was based on incorrect information. In his June 25, 2002 report, Dr. Yang reports the employee Adid not suffer from back pain previous to this.@ In his January 7, 2002 report, Dr. Gross wrote that the employee had the Aability to carry out all normal duties up to the time of the incident.@ Dr. Gelfman, also at Mayo, wrote in the chart notes of January 16, 2006, that there was a Aprevious right shoulder injury, but he was apparently doing well until@ the work injury. None of those statements are correct.
The evidence also shows that the employee missed no time from work after the injury and was able to do his regular job in his usual manner. His girlfriend helped him after the work injury in the same way she had before the work injury. The employee was asked at the hearing whether his restrictions were the same after the work injury as they were before the work injury and he agreed that they were. This testimony is consistent with the restrictions set out in the medical records where both before and after the work injury the employee was allowed to lift up to ten pounds occasionally.
Considering all of this evidence, we conclude that substantial evidence supports the decision of the compensation judge.
Finally, the employee objects to the contacts between the attorney for the Special Compensation Fund and the employers. There is no requirement of animosity at a workers= compensation hearing and we see nothing inappropriate in the attorney=s actions.
The decision of the compensation judge is affirmed.
 The employee testified that he began working there in 1995.