TINA M. NELSON, Employee/Appellant, v. QUALITY PORK PROCESSORS and AIG DOMESTIC CLAIMS, INC., Employer-Insurer/Cross-Appellants, and HEALTH DIMENSIONS REHAB., INC., MN DEP=T OF LABOR & INDUS./VRU, and MAYO FOUND., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 3, 2007
CAUSATION - GILLETTE INJURY. Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee sustained a Gillette-type injury to her low back as a result of her work activities.
PRACTICE & PROCEDURE - MATTERS AT ISSUE; PRACTICE & PROCEDURE - REMAND. Under the particular circumstances of this case, where the employee introduced evidence reasonably raising two theories of entitlement to wage loss benefits not addressed by the judge, the matter was remanded for reconsideration and further findings, despite the employee=s failure to expressly raise those theories during the hearing before the compensation judge.
REHABILITATION - COOPERATION; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Where there was no evidence to support the employer and insurer=s contention that the employee failed to cooperate with rehabilitation, substantial evidence supported the compensation judges=s award of temporary total disability benefits after initiation of rehabilitation assistance.
Affirmed in part, reversed in part, and remanded.
Determined by: Wilson, J., Stofferahn, and Pederson
Compensation Judge: Kathleen Behounek
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant. Kristen Anderson Ryan, Johnson & Condon, Minneapolis, MN, for the Cross-Appellants.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge=s denial of temporary total disability benefits for the period prior to initiation of rehabilitation assistance. The employer and insurer cross-appeal from the judge=s decision that the employee sustained a work-related low back injury as claimed and from the judge=s award of temporary total disability benefits for the period subsequent to initiation of rehabilitation assistance. We affirm in part, reverse in part, and remand for further proceedings consistent with this decision.
The employee began working for Quality Pork Processors [the employer] in about 1996. In 2000, she sustained a work-related injury to her left hand, which was diagnosed as Aintersection syndrome.@ The employer admitted liability and assigned the employee to light-duty work to accommodate restrictions related to her left hand condition. In an October 2002 office note, the employee=s physician indicated that Athe employer has obeyed the restrictions by giving [the employee] a job where she does not have to use the hand, [and] I think these can be considered permanent restrictions.@
At some point, the employee was assigned to a job in the employer=s knife room, where her primary responsibility was to distribute and collect knives used by workers in various departments. The knives, which the employee carried in a bucket, weighed 15 to 20 pounds. Distribution of the knives took 45 minutes to an hour, and the employee usually performed the task three times per shift. Her job also involved carrying laundry bags, cutting sandpaper for workers to use for knife sharpening, and washing the knife room floor. The employee testified that she used her right hand, exclusively, to carry the knife buckets and laundry bags, because using her left hand for these activities resulted in wrist pain.
The controversy in this matter concerns the employee=s claim that she sustained an injury to her low back as a result of her work activities in the employer=s knife room. She testified that, on about June 13, 2005, after a week-long vacation, she began to experience left-sided low back pain during her work shift. The company nurse allegedly gave the employee an ice pack and over-the-counter pain medication. The employee then worked the next several days, but her symptoms progressively worsened, and she sought treatment at urgent care on June 17, 2005. In the history portion of his June 17, 2005, treatment note, Dr. Paul Jacobson wrote, in part, as follows:
HISTORY OF PRESENT ILLNESS: This 39-year-old woman who works at QPP, where she passes knives and has to do a lot of walking, was on vacation and is not sure how, but she mildly injured her low back. For a week now, since returning from vacation, she has had 6 to 7/10 discomfort in the low back. This is radiating into her left lateral thigh down to the knee and into the buttock and though it is central is it more present on the left than the right. She is walking bent over. She has worked several days this week but is now struggling significantly.
Dr. Jacobson diagnosed musculoligamentous low back strain with sciatica symptoms primarily on the left, and he advised the employee to take muscle relaxants, use ice, and perform gentle stretching.
On June 21, 2005, the employee was seen by physician=s assistant Mary Fargin, in the office of Dr. Richard Schindler, the employee=s usual treating physician. Ms. Fargin changed the employee=s medication, referred the employee for physical therapy, and indicated that the employee could work with certain restrictions. The employer could not or would not accommodate those restrictions, and the employee remained off work.
In late June 2005, the employee applied for benefits under the employer=s group accident and sickness disability plan. A box checked on the claim form indicated that the employee=s condition was not work related; however, the employee testified that she did not check that box when completing the form. The employee also testified that she had been advised by the employer=s head nurse to apply for disability benefits because the employer Ahad a lot of people in light duty and because of my hand restrictions, and my back restrictions, they really didn=t have anything for me to do right now.@ According to the employee, the nurse explained that the employee could receive Adisability payments until they could find something.@
The employee underwent conservative treatment for low back and left leg pain, including physical therapy and at least two steroid injections. Notations in medical records vary as to the source of the employee=s symptoms and whether her condition was work related. An MRI performed on July 19, 2005, disclosed a disc extrusion at L5-S1, compressing the left anterior thecal sac and deviating the left S1 nerve root.
The employee eventually asked Dr. Schindler to refer her to Dr. David Beck, a neurosurgeon. Dr. Beck saw the employee on one occasion, on November 7, 2005. At that time, Dr. Beck explained to the employee that surgery would be quite risky because of the employee=s size but that it could be performed if the employee=s pain was making her miserable. Dr. Beck also indicated that, Abecause her pain started at work, it is probably work related.@
The employee filed a claim petition in December of 2005, about when her disability payments ran out, alleging entitlement to various benefits as a result of an alleged Gillette-type injury to her low back. The employer and its insurer denied liability. Ultimately, the employee=s attorney referred her to the Vocational Rehabilitation Unit of the Department of Labor and Industry, for rehabilitation assistance. Following a consultation in February of 2006, QRC Kurt Lidke concluded that the employee was eligible for rehabilitation services. After ascertaining that the employer would not be offering the employee work within her restrictions, the QRC completed a rehabilitation plan calling for the employee to return to work with another employer, and placement services were initiated. The employer formally terminated the employee from employment after she had been off work for one year, as allowed by union contract. She has not found other work.
The matter came on for hearing on December 5, 2006, for resolution of the employee=s claim for various benefits as a result of an alleged Gillette-type injury culminating in disability on about June 16, 2005. The employer and insurer continued their denial of primary liability, based in part on the opinion of Dr. Richard Strand, who indicated that the employee=s low back condition was not work related. Dr. Beck, in contrast, testified that the employee had sustained a work-related injury to her back. Other issues included the employee=s entitlement to temporary total disability benefits after June 16, 2005, and whether the employee had reached maximum medical improvement [MMI]. Evidence included the employee=s medical records, the report of Dr. Strand, the deposition testimony of Dr. Beck, and the testimony of the employee and of Carol Bower, the employer=s head nurse.
In a decision issued on March 28, 2007, the compensation judge found that the employee had sustained a work-related Gillette injury to her low back on June 16, 2005, as claimed, and that she had reached MMI from that injury effective with service of an MMI report on April 3, 2006. In other findings relevant to this appeal, the judge denied the employee=s temporary total disability benefit claim from June 16, 2005, to February 4, 2006, based on the employee=s lack of job search, but she awarded temporary total disability benefits from February 4, 2006, through July 1, 2006 (90-days post MMI), based on the employee=s job search efforts and cooperation with rehabilitation during that period. Both parties appeal.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted." Minn. Stat. ' 176.421, subd. 1 (2006). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
1. Primary Liability
The employer and insurer contend that substantial evidence does not support the compensation judge=s decision that the employee sustained a Gillette-type injury to her low back as a result of her work activities. More specifically, the employer and insurer contend that the employee=s pre-existing low back condition is the cause of her symptoms, disability, and need for treatment; that the light work the employee was performing was not a feasible mechanism of injury; that the alleged low back injury, if any, occurred outside of work; and that the opinion of Dr. David Beck, upon which the compensation judge relied, lacked foundation.
We acknowledge that there is evidence that might have supported a decision denying the employee=s claim. As the employer and insurer point out, the employee=s medical records contain references to intermittent low back symptoms and treatment dating back to the early 1990s. According to Dr. Strand, the employer and insurer=s examiner, the employee=s history is consistent with progressive degenerative disc disease, caused in part by morbid obesity but unrelated to the employee=s employment. As also pointed out by the employer and insurer, the job the employee was performing at the time of the alleged injury was not particularly strenuous, and some contemporaneous medical records, as well as the short-term disability claim form, raise questions about the cause of the employee=s symptoms. In fact, even some of the employee=s treating physicians originally classified the employee=s condition as nonwork related, or else as cause Aundetermined.@ However, there is also adequate evidence in the record to support the compensation judge=s decision.
The compensation judge expressly accepted as credible the employee=s testimony that she did not aggravate or injure her low back while on vacation in June of 2005. Credibility assessments are generally for the compensation judge to make. See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989). Furthermore, the compensation judge=s primary liability determination is supported by the deposition testimony of Dr. Beck. It is apparently true, as the employer and insurer allege, that Dr. Beck did not review the employee=s medical records prior to rendering his opinion on causation. However, during his deposition, Dr. Beck was given a hypothetical describing the employee=s work and the development of her symptoms, and, when counsel informed him about the employee=s low back symptoms and treatment prior to June of 2005, Dr. Beck did not change his opinion, classifying those prior incidents as too Aremote@ for purposes of causation. While the employer and insurer take issue with certain details provided to Dr. Beck, we are satisfied that Dr. Beck had adequate information upon which to render an opinion.
In her memorandum, the judge explained her view of the matter as follows:
The compensation judge finds the opinion of Dr. David Beck, a treating physician, persuasive and adopts the same in concluding that the employee sustained a work related Gillette injury. While Dr. Beck may not have reviewed all of the employee=s medical treatment records, he was provided with a detailed and accurate history of the employee=s low back complaints and treatment prior to June 16, 200. Dr. Beck was also provided with an accurate description of the employee=s work activities with the employer. He considered the employee=s ability to perform her work activities without difficulty until June 200, as well as the onset of employee=s low back symptoms in June 200 and the employee=s description of how her work activities affected her symptoms. Dr. Beck had adequate foundation for his opinion that the employee sustained a work related Gillette injury.
The compensation judge finds the employee=s testimony credible that her low back symptoms were not caused or aggravated by activities while on vacation prior to June 200. The employee has an undisputed history of low back symptoms and treatment for low back and radicular complaints prior to June 200. The employee worked without restrictions and without time loss due to her low back condition prior to June 200. The employee=s work activities with the employer, as described by the employee, were sufficient to substantially aggravate or cause her low back condition in June 200. The evidence has established that the employee sustained a work related Gillette injury to her low back and that her restrictions, disability and need for medical treatment from and after June 16, 200 are causally related to the work injury.
Because we find no error in the judge=s adoption of Dr. Beck=s opinion on causation, we affirm the judge=s decision that the employee sustained a work-related Gillette injury to her low back, as claimed.
2. Temporary Total Disability Through February 3, 2006
The compensation judge denied the employee=s claim for temporary total disability benefits from June 17, 2005, to February 4, 2006, based on her conclusion that the employee had not made a reasonably diligent job search during that period. In her brief, the employee essentially concedes that she did not look for alternate work until after she began receiving rehabilitation assistance. She argues, however, that she was not capable of sustained gainful employment during the period in question, obviating any job search requirement. She also contends that no job search was necessary because she had a reasonable expectation of returning to her job with the employer. In this regard, the employee notes that she kept the company nurse informed of her restrictions, that she was receiving short-term disability benefits through the employer=s disability plan, and that she was not terminated by the employer until a year after her injury.
The compensation judge did not address the two arguments described above, but we are reluctant to fault her in that regard, in that the employee=s counsel did not expressly raise those theories of liability at hearing. It is generally inappropriate for a compensation judge to decide a contested issue on grounds not raised or litigated by the parties. Dawson v. University of Minn., slip op. (W.C.C.A. May 6, 1999), citing Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988) (basic fairness requires notice and reasonable opportunity to be heard). See also Ruether v. State, Mankato State Univ., 455 N.W.2d 475, 42 W.C.D. 1118 (Minn. 1990) (where the theory of the employee=s claim was that she had acquired an occupational disease, the Workers= Compensation Court of Appeals improperly found that the employee had sustained a disabling brain injury, a theory not litigated or addressed by the compensation judge). At the same time, however, the employee did submit evidence relevant to the arguments now more specifically advanced on appeal. Moreover, we question the propriety of denying temporary total disability benefits on job search grounds beginning the very day after the employee=s work injury. After all, the employee was still employed by her employer of almost 10 years. Therefore, under the particular circumstances of this case, we reverse the judge=s denial of benefits through February 3, 2006, and remand the matter for reconsideration and further findings. The compensation judge may in her discretion require the parties to submit additional arguments and/or to specify the evidence supporting their positions.
3. Temporary Total Disability After February 3, 2006
The employee first met with her QRC on February 4, 2006. Concluding that the employee had cooperated with rehabilitation, the compensation judge awarded the employee temporary total disability benefits from February 4, 2006, through 90 days post MMI. The employer and insurer appeal, contending that the employee did not conduct a sufficiently diligent job search or follow through with recommendations made by her QRC. These arguments have no merit.
Where an employee has rehabilitation assistance, the issue is not so much job search as whether the employee has made a good faith effort to cooperate with her rehabilitation plan. See, e.g., Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989). Perfect compliance is not required. See McGrew v. Independent School Dist. #1, slip op. (W.C.C.A. Jan. 22, 1992). In the present case, the employee=s QRC did not testify, but rehabilitation records establish that the employee was generally cooperative with the QRC=s instructions and suggestions. There is simply no basis to deny temporary total disability benefits on noncooperation grounds. We therefore affirm the judge=s award for this period.
 The employee also appealed from the compensation judge=s denial of certain medical treatment claims, but she did not address those claims in her brief. As such, that issue is deemed waived. Minn. R. 9800.0900, subp. 1 (AIssues raised in the notice of the appeal but not addressed in the brief shall be deemed waived and will not be decided by the court@).
 At the time of that exam, the employee weighed 295 pounds. By the time of hearing, the employee weighed 320 pounds.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 In her memorandum, the judge mistakenly referred to the injury as having occurred on June 16, 2006, rather than June 16, 2005. There is no argument that the apparent typographical error has any significance to the issues on appeal.
 Our decision on this issue is determinative of the employer and insurer=s appeal from the judge=s award of rehabilitation and various medical expenses, as well.
 We do not intend to imply, however, that the employee was entitled to sit and wait, without looking for other work, until her formal termination by the employer a year later. Just how long an employee may reasonably wait to look for other work is generally a fact issue. Factors that may be relevant to this issue include, but are not limited to, the length of the employee=s employment by the employer, the employer=s policies for accommodating workers with restrictions, the employee=s understanding of those policies, and what the employee has been told by the employer.