BEATRICE DORLEY, Employee, v. MARANATHA CARE CTR., and GE YOUNG & CO., Employer-Insurer/Appellants, and MINNEAPOLIS RADIOLOGY & ASSOCS., MEDICA HEALTH PLANS, HEALTHPARTNERS, FREMONT CMTY. HEALTH SERVS., COLUMBIA PARK MED. GROUP, CENTER FOR DIAGNOSTIC IMAGING, TWIN CITIES ORTHOPEDICS, P.A., and MN DEP=T OF HUMAN SERVS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 27, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence in the form of MRI reports, treatment records, and the opinion of the employee=s surgeons supports the compensation judge=s determination that the employee=s work injury was a substantial contributing factor in the employee=s current condition and disability.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge=s determination that MMI had not been reached before the date of hearing where the only evidence of MMI before that date was in an IME report using a diagnosis not accepted by the compensation judge.
JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence exists to support the compensation judge=s finding of a job search sufficient for an award of temporary total disability benefits given the employee=s significant obstacles in finding employment, and her cooperation with rehabilitation services.
Determined by: Stofferahn, J., Pederson, J., and Rykken, J.
Compensation Judge: Gary P. Mesna
Attorneys: Philip K. Jacobson, Kelly & Jacobson, Minneapolis, MN, for the Respondent. George W. Kuehner, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee=s May 25, 2004, work injury was a substantial contributing factor in her present restrictions, from his conclusion that the employee did not reach maximum medical improvement until the date of hearing, and from the compensation judge=s finding that the employee had made a diligent job search and was entitled to temporary total disability benefits. We affirm.
Beatrice Dorley, the employee, was 52 years old on the date of hearing. She was born in Liberia and came to the United States in 2000. The employee had no formal education in Liberia and is unable to read or write English. She understands and speaks English well enough to have required only minimal assistance from the interpreter at the hearing. Ms. Dorley has no car and is unable to drive.
The employee began working at Maranatha Care Center, a nursing home, in June 2001. This was her first job in the United States and she completed the job application with the help of her son and cousin. Ms. Dorley was employed as a housekeeper at Maranatha. In her job, she cleaned residents= rooms and bathrooms. As she was carrying trash to a dumpster on May 25, 2004, she received an injury to her left shoulder.
The employer and its insurer admitted liability for the personal injury and paid various workers= compensation benefits.
The employee=s initial medical care was at Columbia Park Medical Center. There, she saw Dr. Jeffrey Meyer in occupational medicine on May 25, 2004. Dr. Meyer assessed a left cervicothoracic and shoulder strain without radiculopathy. He recommended use of an ice pack, medication, and work restrictions until he saw her again. At her follow-up appointment, Dr. Meyer recommended physical therapy as well as continued work restrictions and medication. At subsequent visits, a diagnosis of adhesive capsulitis was added. In August, Dr. Meyer referred the employee to Dr. David Lindgren in orthopedics at Columbia Park for evaluation.
An MRI done in July 2004 was read as showing a small full-thickness rotator cuff tear in the left shoulder. Dr. Lindgren recommended rotator cuff repair surgery. The surgery was done by Dr. Lindgren on October 15, 2004. Dr. Lindgren=s operative report identified the procedure as A1) Left shoulder coracoacromial ligament resection with acromioplasty; 2) Distal clavicle excision.@ His postoperative diagnosis was A1) Partial thickness, left rotator cuff tear; 2) Acromioclavicular arthritis; 3) Os acromionale.@
The employee was off work after her surgery and began receiving temporary total disability benefits. In November, she began receiving statutory rehabilitation services, working with QRC Stan Sizen. The employee was released to return to work in December 2004 with restrictions which precluded the use of her left arm. The employer was able to accommodate those restrictions but the employee was not able to return to work until her residency status was clarified. The employee returned to work at Maranatha on December 23, 2004, doing light housekeeping duties.
The employee continued to treat at Columbia Park after her surgery, although on a number of those visits her primary complaints were related to low back pain.
On January 25, 2005, the employee returned to Dr. Lindgren for treatment of her left shoulder. She advised him that she still had Aconsiderable pain@ in her left shoulder. Dr. Lindgren found full passive range of motion but noted that the employee complained of pain with shoulder movement. Dr. Lindgren recommended continued work restrictions for her left arm of no lifting more than five pounds and also prescribed continued therapy and pain medication.
When the employee saw Dr. Lindgren again on April 12, 2005, he concluded that she was not putting effort into resistance testing of her shoulder and that he could not rely on the exam to assess her progress. Dr. Lindgren recommended an additional MRI, a procedure which was done on May 17. The MRI was read as showing a A1.1 cm supraspinatus tendon tear, with full thickness involvement.@ Dr. Lindgren=s assessment was that the tear was slightly larger than was shown on the preoperative MRI in July 2004. He recommended Arepeat surgery for rotator cuff repair with evaluation of the deltoid attachment.@
The employee was evaluated by Dr. Gary Wyard on behalf of the employer and insurer on April 21, 2005. His conclusion was that the employee had sustained a sprain/strain to the left shoulder in May 2004. He did not believe that she needed any work restrictions or any additional medical care for her shoulder. Finally, he concluded that the employee was at maximum medical improvement and did not have any permanent partial disability as a result of her work injury. In a subsequent report, Dr. Wyard commented on the May 2005 MRI and stated that it did not change his opinion.
Based upon the IME report, the workers= compensation insurer denied authorization for the surgery recommended by Dr. Lindgren. The employer terminated the employee after she refused to return to work without restrictions. The initial rehabilitation plan called for the employee to return to work with her pre-injury employer. After she was terminated from Maranatha, the employer and insurer did not authorize any job placement efforts by the QRC. The QRC=s involvement since that time has been to monitor the employee=s status. Ms. Dorley has not returned to work since she left the employer.
The employee testified she was not able to return to Dr. Lindgren because the workers= compensation insurer would not pay for treatment. She started receiving care for her shoulder at Fremont Community Health Services. Initially, she received medication until she was found eligible for Medical Assistance and could be seen by an orthopedist.
A third left shoulder MRI was done on December 16, 2005. It was read as showing:
1. Focal moderate tear, distal anterior supraspinatus, with mild anterior supraspinatus atrophy. Edema in this area suggests chronic or repetitive injury rather than simply remote finding.
2. Postoperative change at the AC joint. Degenerative changes at the glenohumeral joint with mild bicipital subluxation.
The employee saw Dr. Jonathan Asp at Northwest Orthopedic Surgeons on December 20, 2005. Dr. Asp=s impression was of Apain dysfunction syndrome, left shoulder, status post surgery elsewhere with possible rotator cuff tear.@ Dr. Asp advised the employee that she had more pain than he could attribute to a small tear of the rotator cuff. He recommended a subacromial injection and stated that if that procedure did not eliminate most of her pain he would not recommend surgery. On recheck on January 31, 2006, Dr. Asp stated that the injection had been of some help but he felt that rather than surgery, the employee should Asee somebody in pain management.@ The employee did not see Dr. Asp again. She continued her care at Fremont Community Health Services.
Apparently at the referral of Dr. Lindgren, the employee saw Dr. L. Pearce McCarty at Sports and Orthopedic Specialists on March 31, 2006. His assessment was that the pain she reported was Aout of proportion to the findings of the very high-grade near full thickness tear of her distal supraspinatus.@ Dr. McCarty thought further surgery could make her condition worse and he recommended physical therapy instead.
In return appointments, Dr. McCarty noted the employee had not had the physical therapy he had recommended. He restricted her from lifting more than 10 pounds from floor to table top, from lifting from table top to shoulder or above the shoulder, and from repetitive reaching with the elbow greater than four to six inches from her body. On August 25, 2006, Dr. McCarty stated, based on a recent EMG, that there might be cervical involvement in her condition. At the last appointment the employee had with Dr. McCarty on September 29, 2006, the doctor stated that the employee was not at MMI because she had not completed the physical therapy he thought necessary.
The employee was evaluated by Dr. Wyard again on November 2, 2006. In his report of the same date, Dr. Wyard stated that his prior opinions were not changed by the exams and information since the previous IME. He stated again that the employee had no restrictions for use of her shoulder and needed no further medical treatment.
In a report dated February 7, 2007, Dr. Lindgren opined that the employee had a partial thickness rotator cuff tear which was a result of her May 2004 work injury. He also stated that the employee had permanent restrictions of lifting no more than 10 pounds from floor to table top, no more than five pounds from table top to shoulder, and no lifting above shoulder level. Dr. Lindgren did not comment on whether or not the employee had reached maximum medical improvement.
The employee=s claims were heard by Compensation Judge Gary P. Mesna on February 21, 2007. Issues pertinent to the present appeal which were presented to the compensation judge for determination were: 1) whether the employee=s restrictions were the result of her work injury, 2) whether the employee had reached MMI, and 3) whether the employee was entitled to temporary total disability benefits.
In his Findings and Order of April 10, 2007, the compensation judge determined the employee had a partial thickness tear from her work injury which required work restrictions. He found the employee was at MMI as of the date of hearing and was entitled to temporary total disability benefits since she had made a diligent search for employment. The employer and insurer appeal.
1. Nature and Extent of the Work Injury.
The parties at the hearing identified one of the issues for the compensation judge to determine as the nature and extent of the work injury. The compensation judge found that the Aemployee has a partial thickness tear with a supraspinous tendon. The injury was permanent in nature.@ Finding 3. The employer and insurer have appealed this finding. On appeal, they essentially reargue the medical evidence that was presented to the compensation judge. Their argument is that the evidence does not support a diagnosis of a partial thickness tear, and that the views of their examiner, Dr. Wyard, should have been adopted by the compensation judge.
Dr. Wyard=s conclusion was that the employee had sustained no more then a shoulder strain/sprain as a result of her work injury. He noted that, although the July 2004 MRI had indicated a full thickness tear of the rotator cuff, that condition was not found during surgery in October 2004. According to Dr. Wyard, this lack of finding supported his diagnosis. Although he accepted that the employee=s most recent MRI had shown a partial tear in the same place that the original MRI had been read as showing a full thickness tear, he considered the MRI results to be non-diagnostic, given the surgery results. In contrast, Dr. Lindgren, the orthopedist who performed the surgery, concluded there was a partial thickness rotator cuff tear, and stated that this was confirmed by what he found during surgery.
Both doctors had adequate foundation to render an expert medical opinion on the issues of whether the employee=s injury had caused a partial tear and whether that partial tear was responsible for her current disability. The compensation judge accepted the opinion of Dr. Lindgren, finding that opinion to be supported by the December 2005 MRI. Dr. Lindgren also expressed the opinion that the employee=s recent condition and restrictions were related to her work injury. The employer and insurer argue the compensation judge=s finding that the employee exhibited some functional overlay undercuts the foundation for opinions relating causation for her symptoms to the work injury. We disagree. As the compensation judge noted, the 2005 MRI provided an objective basis for Dr. Lindgren=s opinion.
It is the province of the compensation judge to choose between competing medical opinions. Where, as here, the medical opinion accepted by the compensation judge has adequate foundation, the compensation judge=s decision generally must be affirmed. Voshage v. State (MNSCU), Winona State Univ., 65 W.C.D. 167 (W.C.C.A. 2004).
2. Maximum Medical Improvement.
Maximum medical improvement occurs on the date when no further significant recovery from a personal injury can reasonably be anticipated. Minn. Stat. ' 176.011, subd. 25. The compensation judge found that the employee had not effectively reached MMI until the date of hearing, February 21, 2007. The employer and insurer argue on appeal that the compensation judge erred in his determination and that the employee reached MMI on April 21, 2005, the date she was evaluated by Dr. Wyard, effective with the service of that report shortly afterwards.
We note, first, that Dr. Wyard=s conclusion as to MMI was driven by his diagnosis of the employee=s work injury as a sprain with no residual functional loss. As we noted previously, the compensation judge specifically rejected this opinion and favored the opinion of Dr. Lindgren. Accordingly, the compensation judge could reasonably discount Dr. Wyard=s view on MMI, both in April 2005 and as restated on the same grounds in November 2006.
The most recent chart note from a treating doctor on the issue of MMI is from Dr. McCarty, who stated in September 2006 that MMI had not been reached. The compensation judge also noted that the employee since April 2005 had continued to receive medical treatment which her physicians hoped would improve her condition and that the possibility of further surgery was being evaluated. We note further that there were delays in the employee receiving any effective medical care because of insurance coverage issues from the time of Dr. Wyard=s first evaluation until the time of hearing. However, the medical records do not indicate any treatment recommendations as of the date of hearing.
The finding that the employee had not reached MMI before February 21, 2007, is not clearly erroneous and has substantial support in the record.
3. Temporary Total Disability and Job Search.
The compensation judge awarded temporary total disability, finding that Athe employee has made a diligent job search, considering the significant obstacles to finding work that she has faced.@ Finding 9. The employer and insurer appeal that finding, arguing that the employee=s efforts do not demonstrate diligence, pointing to the limited contacts made by the employee.
The employee is not able to read or write English. She has no driver=s license. Her work history is limited to the job she had in housekeeping at Maranatha Care Center. She has restrictions from her work injury which essentially limit her to employment using only one arm. Her QRC testified that Ait would be extremely, extremely difficult for Beatrice to locate employment without assistance.@ (T. 69.) Finally, the employee=s total disability was due in substantial part to the employer=s decision to terminate the employee on the basis of an IME report.
While a diligent job search may be important in a claim for wage loss, it is not required where the search would be futile. The absence of a job search goes to the weight of the assertion that the employee is totally disabled. Scott v. Southview Chev. Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978); Turner v. Evtac Mining, 66 W.C.D. 269 (W.C.C.A. 2006). More importantly, the employee was provided with statutory rehabilitation services. In that situation, the question becomes whether the employee was making a good-faith effort to cooperate with rehabilitation. Taylor v. Geo. A. Hormel & Co., 42 W.C.D. 633 (W.C.C.A. 1989). There is no evidence that the employee did not cooperate with the QRC. It was the decision of the employer and insurer, not the employee, not to allow for job placement activities.
We find substantial evidence to support the compensation judge=s determination on this issue.
 The employee=s attorney advised at the hearing that no claim was being made that the employee had sustained a work injury to her low back.
 Dr. Wyard restated this MMI opinion in a report dated November 2, 2006, and the employer and insurer contend that if the employee reached MMI subsequent to Dr. Wyard=s initial opinion, the judge should have considered November 30, 2006, when Dr. Wyard=s deposition was taken, as an alternative date of service of MMI.