DENNIS HENDRICKSON, Employee, v. PARSONS ELEC. CO. and ZURICH N. AM., Employer-Insurer/Appellants, and ELECTRIC RESOURCE CONTRACTORS and CNA INS. CO., Employer-Insurer, and ST. PAUL ELEC. CONSTR. MED., and BLUE CROSS BLUE SHIELD, Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 11, 2007
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including the medical records, the employee=s testimony, and expert medical opinion, supported the compensation judge=s finding that the employee=s work injury at Parsons remained a substantial contributing cause of his symptoms and disability through the date of hearing.
TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(h). The question of whether an employee can work without restrictions for the purposes of Minn. Stat. ' 176.101, subd. 1(h), is an issue of fact to be determined by a compensation judge and is not one that is entrusted solely to the decision of an individual physician. A doctor=s release of an employee to unrestricted work does not necessarily trigger the operation of Minn. Stat. ' 176.101, subd. 1(h), where the employee subsequently is judicially determined to have permanent work restrictions related to the injury.
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supported the compensation judge=s finding that the employee reached MMI in December 2006.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Patricia J. Milun
Attorneys: Russell G. Sundquist, Sundquist & Associates, St. Paul, MN, for the Respondent Employee. Mark A. Kleinschmidt, Cousineau McGuire, Minneapolis, MN, for the Appellants. Philip C. Warner, Law Offices of Jeffrey A. Magnus, Edina, MN, for the Respondent Employer and Insurer.
DAVID A. STOFFERAHN, Judge
The employer, Parsons Electric Company, and its insurer appeal from the compensation judge=s determination that the work injuries at Parsons continued to be the substantial contributing cause of the employee=s condition and disability after June 8, 2005, that the employee did not reach maximum medical improvement until December 2006, and that the employee was entitled to an award of temporary total disability benefits. We affirm.
The employee, Dennis Hendrickson, has been a journeyman electrician since 1986. He obtained job assignments through his union hiring hall and began working for Parsons Electric Company (Parsons) in October 2004, as a member of a four-person team laying heavy wire in conduits for a new commercial building being constructed in Plymouth, Minnesota. Some time in the first quarter of 2005, the employee was assigned to a different job for Parsons, cleaning batteries by brushing the terminals. On March 9, 2005, the employee reported to his employer that he had soreness in his left arm with weakness and sharp pain from his elbow to his wrist, which he had first started to notice in January 2005 while pulling wire. A first report of injury was filed on the following day, March 10, 2005.
Parsons sent the employee for treatment to Dr. Jeffrey D. Meyer, who saw him on March 14, 2005. Dr. Meyer diagnosed left lateral epicondylitis and gave the employee work restrictions. On March 31, 2005, when next seen by Dr. Meyer, the employee reported that he had been wearing a forearm band at work and was working at a light duty job within his restrictions, but was not sure he had experienced any improvement. Dr. Meyer referred the employee to physical therapy. The physical therapy did not result in improvement and on April 20, 2005, Dr. Meyer provided the employee with a steroid injection. The employee remained under restrictions.
The employee reported to Dr. Meyer on May 10, 2005, that the steroid injection had made his left elbow feel much better. Dr. Meyer continued the employee on restrictions and recommended he return in a month. On June 8, 2005, the employee returned and reported that his left elbow still felt pretty good, with only occasional soreness. Dr. Meyer authorized a return to regular work but advised the employee that he wear a forearm band as needed and continue range of motion and strengthening exercises. The doctor anticipated that maximum medical improvement would occur in about a month.
The employee continued to work in a light duty job for Parsons until he was laid off on June 16, 2005. He then applied for unemployment benefits and notified the union hiring hall that he was available for work. On July 19, 2005, he began working at Electric Resource Contractors (ERC) in a job which he characterized as very light in nature.
The employee went back to see Dr. Meyer on August 26, 2005. He told the doctor that he had been having a throbbing ache in his left forearm and was afraid his tendinitis was coming back. Dr. Meyer noted that the employee did not have much pain in the lateral epicondyle. He did not think the employee had either a recurrent left lateral epicondylitis or a new medial epicondylitis. Instead, he suspected the employee=s symptoms of soreness in the ventral left forearm were due to a separate condition, a flexor digitorum strain that likely had been present in the spring of 2005 but was then masked by his lateral elbow pain. He advised the employee to continue range of motion and strengthening exercises with follow up if needed. Dr. Meyer concluded that the employee=s left lateral epicondylitis was still at MMI.
The employee was laid off from the job at ERC on September 7, 2005.
On October 12, 2005, the employee again returned to Dr. Meyer. He continued to have aching soreness in his forearm, but over the last three to four weeks had noticed increasing pain in his left lateral elbow, especially with lifting or twisting. Dr. Meyer now diagnosed left lateral epicondylitis, and specifically noted that he considered it a recurrence of the prior epicondylitis and not a new episode. His chart notes record that he told the employee that after a A. . . steroid injection, there can be complete recovery, but at times, there are recurrences as the anti-inflammatory effects of the triamcinolone wears off.@ He imposed work restrictions and referred the employee to Dr. Michael Forseth, a hand surgeon, for a second opinion.
Dr. Forseth first examined the employee on November 3, 2005. He diagnosed chronic left lateral epicondylitis, referred the employee to physical therapy, and also recommended light duty work restrictions. Noting that the prior cortisone injection had provided a period of temporary relief, he also reinjected the employee=s left elbow.
The employee continued to treat with Dr. Forseth. On March 1, 2006, the doctor noted that therapy had given the employee no significant relief, and that cortisone injections had only given temporary relief. He recommended that the employee undergo an MRI. The MRI showed changes consistent with chronic lateral epicondylitis. Dr. Forseth recommended monitoring the employee=s condition rather than surgical treatment. He noted that the employee was not capable of unrestricted work as an electrician and that no light duty was currently available to him.
On April 19, 2006, the employee underwent an examination on behalf of Parsons by Dr. Paul T. Wicklund. Dr. Wicklund also diagnosed left lateral epicondylitis. He opined that this was a temporary problem, but one which still continued to bother the employee. In Dr. Wicklund=s view, the employee could work without restrictions, was at MMI, and would have reached MMI within six months of the first diagnosis. He saw no need for surgery and stated that the employee had no permanent partial disability.
The employee was then examined by Dr. Robert Barnett, Jr., on behalf of ERC, on May 5, 2006. Dr. Barnett similarly diagnosed chronic lateral epicondylitis of the left elbow. He considered that the prognosis for additional improvement was guarded, and did not recommend further physical therapy. He noted that the employee associated causation to his work activities prior to employment with ERC, with symptoms culminating on January 1, 2005, and escalating to March 2005. In Dr. Barnett=s opinion, the work for Parsons was a substantial contributing cause of the employee=s injury and there was no new injury at ERC. Dr. Barnett concluded that employee=s symptoms had simply recurred after a temporary period of improvement following the steroid injection in April 2005. He did not consider the employee=s work for ERC to be a substantial contributing cause of his current clinical situation. Dr. Barnett stated that the employee was able to work with restrictions and modification of duties. He recommended that the employee avoid heavy squeezing, gripping, and the use of impact tools. In his view, the employee had reached MMI as of the date of his examination, and had not sustained any permanent partial disability.
On May 31, 2006, Dr. Forseth noted that the employee was doing better than previously. He suggested a trial of unrestricted work, but noted that the employee=s symptoms might recur. The employee accepted unrestricted work through the union in June, beginning work for Weber Electric on June 2, 2006. In his hearing testimony, the employee characterized the work for this employer as very easy work. Nonetheless, on July 10, 2006, when the employee was seen for reevaluation by Dr. Forseth, he reported that the trial of full duty had caused a flare-up of symptoms. Dr. Forseth administered a third steroid injection and reimposed work restrictions.
On October 9, 2006, Dr. Forseth imposed permanent light duty restrictions, including restrictions on gripping and pinching, lifting, and carrying. He noted that the employee had gotten one month=s temporary relief from the last injection, and was working light duty, but was having more pain again. He considered further injections inadvisable, and continued non-operative treatment.
The employee was seen again by Dr. Wicklund on December 6, 2006. The employee reported to Dr. Wicklund that his symptoms had recently worsened even though he was not working. Dr. Wicklund noted only minimal symptoms on examination. He concluded that the employee still suffered from left lateral epicondylitis with symptoms which waxed and waned. He considered this a temporary condition. In his view, the employee=s condition was equally apportionable to his work activities for Parsons and ERC. He saw no need for work restrictions, but recommended that the employee continue stretching and exercise.
In a report dated December 22, 2006, Dr. Forseth indicated that the employee had reached MMI and had not sustained ratable permanency.
The employee claimed that he had sustained one or more work injuries culminating variously on January 1, 2005, March 9, 2005, and September 7, 2005. He further claimed entitlement to temporary total disability from September 8, 2005, through June 2, 2006, and from and after October 9, 2006. Parsons and its insurer admitted the injuries during their period of employment, but denied liability for benefits on the basis that the injuries were temporary in nature and were resolved by June 8, 2005, when Dr. Meyer initially released the employee to unrestricted work. ERC and its insurer denied liability and contested notice for any injury during their period of employment.
A hearing was held before Compensation Judge Patricia Milun on January 3, 2007, to determine the employee=s claims. Further issues raised before the compensation judge were whether the employee had given sufficient notice of an injury to ERC, whether the employee had ongoing work restrictions, and when the employee had reached MMI.
Following the hearing, the judge found that the employee had sustained an injury in the form of lateral epicondylitis as a result of his work for Parsons; that the work for ERC had not contributed to his present symptoms but had caused a temporary flare-up of the employee=s condition which returned to baseline by the end of that employment; that the employee did not provide notice of an injury to ERC; that MMI was not reached until December 22, 2006; and that the employee was eligible for the claimed periods of temporary total disability compensation. Parsons and its insurer appeal.
The compensation judge found that the employee=s work injury at Parsons continued to be the substantial contributing cause of his symptoms after June 8, 2005. This finding was supported not only by the employee=s testimony as to the history and nature of his symptoms, but also by the expert medical opinions of Dr. Forseth and Dr. Barnett. The opinion of Dr. Wicklund, the appellants= IME doctor, also provided support for this finding, as that physician also stated that the work for Parsons remained a substantial contributing cause of the employee=s symptoms, although he also attributed the employee=s symptoms partially to the effects of his work for ERC.
The appellants, however, argue that the judge should have based her findings principally on the records of Dr. Meyer, which, they contend, demonstrate that the employee=s condition had resolved by June 8, 2005, and that, inferentially, any causal link between his later symptoms and an injury while working for Parsons was broken.
While Dr. Meyer did initially release the employee without restrictions after he showed significant improvement following his initial steroid injection, we do not find that Dr. Meyer=s records, taken as a whole, compel the rejection of the medical opinions relied upon by the compensation judge. Indeed, we note that on October 12, 2005, the last time Dr. Meyer saw the employee, he diagnosed a recurrence of the employee=s previous left lateral epicondylitis, specifically noting that he did not consider this condition a new episode. In his chart note, the doctor also noted that although a steroid injection sometimes brings about a complete recovery, A. . . at times, there are recurrences as the anti-inflammatory effects of the triamcinolone wears off.@ The compensation judge could reasonably conclude that Dr. Meyer had changed his mind as to whether the employee had in fact fully recovered from the effects of his earlier work injury at Parsons.
2. Maximum Medical Improvement and Restrictions
The compensation judge expressly relied on the opinion of Dr. Forseth, who first placed the employee at MMI on December 22, 2006. The appellants point out that Dr. Meyer had opined that the employee had reached MMI as early as the summer of 2005, and that both IME doctors, Dr. Wicklund and Dr. Barnett, also provided earlier dates of MMI.
This court has often stated that we must generally affirm a compensation judge=s choice among the divergent opinions of medical experts, so long as the opinion relied upon had adequate foundation. Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003). Dr. Forseth was the employee=s treating physician from November 2005, and had sufficient foundation for his opinions. We cannot conclude that the compensation judge=s choice between the opinions of the medical experts was clearly erroneous, and affirm the judge=s finding regarding the date of MMI .
The compensation judge also accepted the opinion of Dr. Forseth that the employee was subject to permanent work restrictions. The appellants argue that the compensation judge should have adopted the views of other physicians who thought no restrictions were necessary. This is a question where we must affirm the compensation judge=s choice between the expert opinions. The appellants contend that Dr. Forseth=s opinion should have been viewed as less credible because the employee had been able to perform work for ERC and Weber Electric without formal restrictions. We note, however, that the employee testified that both jobs were fairly light in nature, and that in both cases the medical records indicate that he experienced an increase in symptoms while performing these jobs. In any event, this argument goes to the weight, rather than the foundation, for Dr. Forseth=s opinion, a matter which is committed to the compensation judge and which we will not disturb on appeal absent clear error.
3. Temporary Total Disability
The appellants contend that the employee was in any event ineligible for temporary total disability benefits on the basis that, once Dr. Meyer had released him to work without restrictions, Minn. Stat. ' 176.101, subd. 1(h), barred further temporary total disability. That provision states that A[t]emporary total disability compensation shall cease if the employee has been released to work without any physical restrictions caused by the work injury.@ Further, they contend, such ineligibility continues thereafter even following a subsequent reimposition of restrictions, as no specific statutory provision expressly provides for a recommencement of benefits after the provision=s application.
The question of whether an employee can work without restrictions for the purposes of Minn. Stat. ' 176.101, subd. 1(h), is an issue of fact to be determined by a compensation judge. The question is not one that is entrusted solely to the decisions of an individual physician. A doctor=s temporary release of an employee to unrestricted work does not necessarily trigger the operation of Minn. Stat. ' 176.101, subd. 1(h), where the employee subsequently is judicially determined to have work restrictions related to the injury. In the present case, the judge found that the employee has permanent work restrictions related to the work injury. We have affirmed that finding. In such a situation, Minn. Stat. ' 176.101, subd. 1(h), has no application, and there is no issue of Arecommencement of benefits.@
The compensation judge found that the employee failed to give notice of an elbow injury at ERC within the 30-day requirements of Minn. Stat. ' 176.141. The appellants, Parsons and its insurer, argue that the judge apparently failed to consider whether the employee should have been deemed to have given sufficient notice pursuant to the alternative, 180-day notice provision of that statute. That provision applies where prejudice to the employer and insurer is not present and an employee A. . . shows that failure to give prior notice was due to . . . mistake, inadvertence, ignorance of fact or law, or inability . . . .@ Specifically, they argue that the temporary exacerbation of symptoms which the compensation judge found to have occurred as a result of the employee=s work for ERC was in the nature of a Gillette injury, and therefore, that the period for notice did not begin to run until the employee, as a reasonable person, should have recognized the probable compensability of the injury. They argue that this would first have occurred in late December 2005, when the employee first retained counsel in his workers= compensation claim.
The transcript and pleadings in this matter fail to show that either the employee or the appellant employer and insurer argued for the applicability of this longer notice period, or offered evidence to support such a theory, before the compensation judge at the hearing below. The only testimony by the employee was that he consistently associated his symptoms with the injury at Parsons and never told anyone at ERC that he had sustained an injury there. In the absence of any testimony or other evidence to support the argument for a longer notice period, we cannot conclude that the compensation judge erred in finding ineffective notice in this case.
The decision of the compensation judge is affirmed.