GARRETT M. MARSHALL, Employee/Appellant, v. STEINBRECHER PAINTING, INC., SELF-INSURED/MEADOWBROOK CLAIMS SERVS., Employer, and MANKATO CLINIC, LTD., LAKESIDE HEALTH CARE CTR./DASSEL THERAPY, INSTITUTE FOR LOW BACK AND NECK CARE, CONSULTING RADIOLOGISTS, LTD., BLUECROSS & BLUESHIELD OF MINN., SPORTS & ORTHOPAEDIC SPECIALISTS, PA, ORTHOPAEDIC AND FRACTURE CLINIC, and ABBOTT NORTHWESTERN HOSP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 23, 2008
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately-founded expert medical opinion, supports the compensation judge’s determinations that the employee did not sustain an injury to his low back or his left shoulder in the personal injury of June 1, 2006.
JOB SEARCH - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s denial of temporary total disability benefits where the employee was released to return to work and made no search for employment within his restrictions from 2006 through the hearing on May 15, 2008. The evidence does not support the employee’s contention that he reasonably anticipated a return to work with the employer within a short period of time after the personal injury and was excused from making a search for alternate work.
Affirmed as modified.
Determined by: Johnson, C.J., Pederson, J. and Rykken, J.
Compensation Judge: Paul V. Rieke
Attorneys: Julie Wacker Hanjani, Hutchinson, MN, for the Appellant. T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s determinations that the employee’s left shoulder and low back conditions are not causally related to his June 1, 2006, personal injury, and that the employee is not entitled to temporary total disability benefits for failure to conduct a reasonable and diligent search for employment within his restrictions from and after June 28, 2006. We affirm as modified.
Garrett M. Marshall, the employee, began working as a union painter foreman for Steinbrecher Painting, Inc., the employer, in December 2004. On June 1, 2006, the employee sustained a work-related injury to his right shoulder and right bicep while lifting a five gallon bucket of paint from a stack in the employer’s storage container. The employer was then self-insured with claims administered by Meadowbrook Claims Services.
The employee sought medical treatment for right shoulder pain on June 5, 2006. Paul Coleman, PA-C, diagnosed a right shoulder biceps tendon rupture and probable partial tear of the rotator cuff. An MRI scan was ordered, and the employee was taken off work “until the MRI has been done.” (Pet. Ex E.)
A First Report of Injury was completed on June 5, 2006, describing an injury on June 1, 2006, involving the right arm and shoulder. On June 12, 2006, the self-insured employer served a notice denying primary liability for the claimed injury asserting the employee had a pre-existing right shoulder condition.
The employee returned to see PA-C Coleman on June 16, 2006. In addition to persistent right shoulder pain, the employee reported low back pain that the employee believed occurred at the same time he injured his shoulder. PA-C Coleman additionally diagnosed low back pain with radiculopathy, probably secondary to disc herniation, and nonsteroidal anti-inflammatory medication was prescribed.
The right shoulder MRI scan was performed on June 28, 2006, and an MRI scan of the left shoulder was completed on July 5, 2006. The employee was then seen by Dr. Gordon Walker on July 18, 2006. The employee previously had seen Dr. Walker for left shoulder problems. In June 2005, the employee reported left shoulder pain that had caused problems for over a year. The employee stated he injured the shoulder at work (for a different employer) while lifting scaffolding in and out of large tanks. Dr. Walker diagnosed left shoulder impingement syndrome and prescribed a steroid injection and physical therapy. The employee returned to Dr. Walker on October 4, 2005, stating the injection helped for a period of time, but the effect was wearing off and the shoulder was worsening again. Dr. Walker discussed several options, including another injection and more therapy, or, in the alternative, obtaining an MRI scan and considering arthroscopic surgery. The employee elected to proceed with another injection and therapy.
On July 18, 2006, Dr. Walker reviewed the MRI scans with the employee. The doctor noted both shoulders were bothering the employee quite a bit and he had not been able to return to painting. Dr. Walker’s impression was bilateral impingement syndrome with a biceps tendon rupture in the right arm/shoulder, a partial thickness tear in the left shoulder, and low back pain with radiculopathy. Dr. Walker stated, in his opinion, both shoulders were related to the employee’s workers’ compensation injury, explaining that the lifting injury was when the biceps ruptured on the right and was probably when the partial tear of the left shoulder occurred. The doctor referred the employee to physical therapy for both shoulders and the low back, and released the employee to return to work on July 18, 2006, with restrictions of no lifting/carrying over 10 pounds, no pushing/ pulling over 25 pounds, and no bending, twisting, turning, or overhead reaching.
The employee returned to Dr. Walker for a recheck on August 29, 2006. The doctor noted the employee’s back pain had improved with therapy, and recommended steroid injections in both shoulders. On September 19, 2006, the employee reported chronic low-grade pain in the shoulders he could live with, for now, but increasing low back pain radiating down the right leg. Dr. Walker ordered a lumbar MRI scan and referred the employee to a back specialist.
The employee was examined by Dr. Erik Ekstrom at the Institute for Low Back and Neck Care on November 8, 2006. The doctor took a history of a work-related injury in June 2006 resulting in severe shoulder pain along with back pain. Dr. Ekstrom noted limited flexion and extension in the low back and, based on his review of the employee’s lumbar MRI scan, diagnosed four-level degenerative disc disease with a right-sided disc herniation at L3-4, low back pain, and facet arthropathy. The doctor noted that most of the employee’s MRI findings were chronic in nature, and anticipated a return to his previous baseline. Dr. Ekstrom ordered additional injections and physical therapy.
Dr. Walker re-examined the employee in December 2006 and, given the employee’s significant, persistent right arm and shoulder pain, recommended a second opinion. The employee was seen by Dr. L. Pearce McCarty, an orthopedic surgeon, on January 3, 2007. Dr. McCarty noted significant shoulder pathology bilaterally and recommended surgical treatment for both shoulders. On February 12, 2007, Dr. McCarty performed surgery on the left shoulder consisting of an arthroscopic subscapular repair, an open biceps tendon tenodesis, subacromial and coracoid decompressions, and intraarticular debridement of a partial thickness rotator cuff tear and labral fraying. The employee returned for a recheck on February 21, 2007, at which time Dr. McCarty stated the employee was progressing nicely. He ordered post-surgical physical therapy, and released the employee to return to work with restrictions of no use of the left arm and 10 pounds lifting from floor to tabletop, 5 pounds from table top to shoulder, no use above the shoulder, and no repetitive outstretched reaching with the right arm.
The employee was examined by Dr. Gary Wyard on March 8, 2007, at the request of the self-insured employer. On examination, Dr. Wyard noted the employee refused to take his sweatshirt off. The doctor noted crepitation and some difficulty with range of motion in the right shoulder, but no shoulder girdle atrophy, deltoid atrophy or biceps atrophy. The employee refused to move the left shoulder which was in a sling and was three weeks post surgery. The doctor noted tenderness in the small of the back, but no spasm, and 5/5 muscle testing. Dr. Wyard diagnosed (1) degenerative lumbar disc disease with multiple bulging discs; (2) pre-existing right shoulder degeneration post surgery times two with poor prior decompression; (3) post left shoulder surgery for chronic impingement; and (4) an apparent sprain/strain of the right shoulder on June 1, 2006, based on the employee’s history. In Dr. Wyard’s opinion, the employee’s chronic right and left shoulder problems reflected pre-existing conditions and were not causally related to the June 1, 2006, event, stating the incident was not consistent with an injury to both shoulders to the degree and extent evidenced, or to the low back. The doctor believed the employee’s MRI scans showed long-standing, pre-existing conditions and were not consistent with acute injury, and stated the right shoulder sprain/strain would have resolved within one month.
The employee continued to treat with Dr. Ekstrom for low back and right leg pain and with Dr. McCarty for his bilateral shoulder problems. On May 15, 2007, Dr. McCarty provided new work restrictions for both shoulders of no lifting over 30 pounds from floor to tabletop, 10 pounds from tabletop to shoulder, and 5 pounds above the shoulder, no repetitive use above the shoulder and no repetitive outstretched reaching. When seen in June 2007, the employee stated he was doing okay and was not ready for right shoulder surgery. In October 2007, Dr. McCarty reiterated his belief that the employee would benefit from a biceps tenodesis and a diagnostic arthroscopy to address the employee’s right biceps tendon rupture and cramping and right shoulder pain. Dr. McCarty provided new work restrictions on March 25, 2008, of no lifting over 10 pounds above the shoulder and no repetitive use above the shoulder for the right shoulder, and no lifting over 15 pounds above the shoulder and no repetitive use above shoulder level for the left shoulder.
In a narrative report dated May 8, 2008, Dr. McCarty diagnosed a traumatic partial subscapularis tear and traumatic rupture of the long head of the biceps tendon with cramping and spasm in the right arm and shoulder. The doctor opined this condition was causally related to the June 1, 2006, incident, stating the mechanism of the injury was consistent with a rupture of the biceps tendon and an injury to the upper border of the subscapularis. The doctor maintained the employee had fully recovered from his prior right shoulder surgeries, further noting that medical records documented the biceps tendon was intact prior to the June 1 incident. Dr. McCarty stated the findings immediately following the incident were “textbook” for a rupture of the biceps tendon and that the MRI scan findings on June 28 were consistent with an acute injury to the biceps tendon. Dr. McCarty stated it would be difficult to attribute causality for the employee’s left shoulder pathology to the June 1, 2006, incident. The doctor agreed the employee had a pre-existing condition affecting his left shoulder, stating, however, that any disability affecting the employee’s dominant right upper extremity would logically transfer increased stress to his left shoulder secondary to increased dependence on the left arm for activities of daily living, aggravating his pre-existing condition.
The case was heard by a compensation judge at the Office of Administrative Hearings on May 15, 2008. The judge issued a Findings and Order on June 4, 2008, finding the employee had sustained a work-related injury to the bicep of his right arm and to his right shoulder on June 1, 2006, accepting the opinion of the employee’s surgeon and rejecting the opinion of Dr. Wyard in this respect. The judge further found, however, that the evidence did not support the employee’s claim of a left shoulder and low back injury at the time of the June 1, 2006, event. The compensation judge awarded temporary total disability benefits from June 6 through June 28, 2006, but denied temporary total benefits thereafter, finding the employee was released to return to work with restrictions from and after June 28, 2006, and failed to make a reasonably diligent effort to find employment within his restrictions after that date. The employee appeals.
1. Notice of Appeal
The self-insured employer states the employee failed to specifically appeal orders numbered 1 through 6 of the compensation judge’s Findings and Order, and contends these orders are now final, unappealable and bar consideration of the employee’s appeal. We disagree.
While review by this court “is limited to the issues raised by the parties in the notice of appeal,” Minn. Stat. § 176.421, subd. 6, there is no requirement in the statute or this court’s rules that mandates a particular format or a listing of the findings or orders appealed by number. A notice of appeal is sufficient if it shows an intent to appeal, shows the Findings and Order appealed from, and apprises the Workers’ Compensation Court of Appeals and the other parties of the facts and issues being appealed. Stange v. State, Dep’t of Transp., No. WC05-101 (W.C.C.A. Oct. 31, 2005); Atkinson v. NSP, 55 W.C.D. 347, 351 (W.C.C.A. 1996) summarily aff’d, (Minn. Oct. 29, 1996); Minn. R. 9800.1600. The employee’s notice of appeal identifies the findings at issue and is sufficient to confer jurisdiction on this court. We decline to dismiss the appeal.
2. Causation - Left Shoulder
The compensation judge accepted the opinion of Dr. Wyard and found the employee did not injure his left shoulder in the June 1, 2006, event. The employee asserts Dr. Wyard failed to examine the employee without his shirt on and the doctor’s opinion, including his finding of a lack of atrophy in the arm, lacks foundation. Accordingly, the employee asserts the compensation judge erred in accepting Dr. Wyard’s opinion on causation.
The competence of a medical expert depends upon both the witness’s scientific knowledge and his or her practical experience with the subject matter at issue. Drews v. Kohl’s, 55 W.C.D. 33, 39 (W.C.C.A. 1996) (citing Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983)). Dr. Wyard is an orthopedic surgeon and was privy to the same treatment and diagnostic records as those reviewed by the treating doctors. He agreed the employee had significant left shoulder pathology, but concluded - - based primarily on the employee’s treatment for left shoulder impingement syndrome in the preceding year and what he interpreted as long-standing degenerative findings on the MRI scan - - that the employee’s left shoulder condition was not injured in or aggravated by the June 1, 2006, incident. His opinions are adequately supported by the record.
We note, further, the compensation judge did not rely solely on the opinion of Dr. Wyard. The judge specifically noted the employee’s treatment for the left shoulder in June and October 2005, including discussion of surgery for the left shoulder prior to the employee’s June 1, 2006, personal injury. The judge further noted the employee’s treating surgeon’s statement that he found it “difficult to attribute causality of Mr. Marshall’s left shoulder pathology directly to the incident that occurred on June 1, 2006.” (Finding 10.) There is substantial evidence in the record as a whole to support the compensation judge’s finding that the employee’s left shoulder condition was not causally related to his June 1, 2006, personal injury, and we must affirm. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
3. Causation - Low Back
The compensation judge found, relying on the opinion of Dr. Wyard, that the employee did not injure his low back at the time of the June 1, 2006 incident. The employee contends the judge’s finding is not supported by the evidence. As previously discussed, there is adequate foundation for the opinions of Dr. Wyard. Although the employee clearly believed he injured his back in the June 1, 2006, incident, and testified to that effect, no medical expert opined the employee’s low back problems were causally related to the June 1, 2006, personal injury. Dr. Ekstrom, the employee’s treating physician diagnosed four-level degenerative disc disease with facet arthropathy and observed that most of the employee’s lumbar MRI scan findings were chronic in nature. Dr. Wyard concluded the September 20, 2006, scan showed significant degenerative lumbar disc disease, but “[a]ll that is old, progressive stuff, things that develop over time.” (Resp. Ex. 1 at 31, 34.) The compensation judge did not improperly rely upon the opinion of Dr. Wyard on this record, and we affirm.
4. Job Search
Finally, the employee argues the compensation judge erred in denying temporary total disability benefits based on a lack of a job search. With the exception of a short period of time following the personal injury and another following his left shoulder surgery, the employee was at all times released to return to work with restrictions. The limitations imposed were substantial and it seems apparent the restrictions would have precluded his return to work as a union painter, as testified to by the employee.
As a general rule, an employee who has been released to return to work must prove total disability by showing that work within his restrictions is not available. That there is no work available within the employee’s capabilities is demonstrated by a reasonable and diligent search for work. Redgate v. Sroga’s Standard Serv., 421 N.W. 729, 733, 40 W.C.D. 948, 954 (Minn. 1988). Neither the fact that the employee wanted only to return to his pre-injury work as a union painter nor the fact that no rehabilitation assistance was provided relieved the employee from the obligation to make a reasonably diligent effort to find employment within his restrictions. See Okia v. David Herman Health Care Ctr., 38 W.C.D. 261 (W.C.C.A. 1985); Mattson v. State, Dep’t of Pub. Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992).
The employee, however, contends he reasonably anticipated a return to work with the pre-injury employer once medical treatment was approved and provided and he was, therefore, excused from making a search for alternate employment. We are not persuaded. In Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995) and subsequent cases, this court has held that where there is evidence of a continuing employment relationship with the employer and there appears to be a reasonable possibility the employee might return to work with the employer within a relatively short period of time, a search for employment elsewhere may not be practical or reasonable. Glasow, id.; Sewell v. Pomps Tire Serv., slip op. (W.C.C.A. May 7, 1996); Chilton v. Brown Minneapolis Tank, slip op. (W.C.C.A. July 8, 1996). Here, the employee admitted he made no attempt to find alternate employment from the time he was released to return to work with restrictions in 2006 through the date of the hearing on May 15, 2008. There is no evidence of an ongoing employment relationship with the employer and no evidence the employee or the employer anticipated a return to work with the employer within a short period of time. The only evidence on this issue was the employee’s testimony that he wanted, and eventually expected, to return to work with Steinbrecher or in some other union painter foreman job. On this record, the compensation judge reasonably held the employee failed to make a reasonably diligent search for alternate employment, and the denial of temporary total disability benefits is affirmed. Compare, e.g., Lohrke v. First Student, No. WC07-224 (W.C.C.A. Jan. 31, 2008); Mathison v. Untied Parcel Serv., Inc., slip op. (W.C.C.A. June 15, 2004); Tomlin v. Rocco Altobelli, slip op. (W.C.C.A. Mar. 24, 2003).
We note, however, that the compensation judge found the employee “was released to return to work with restrictions from and after June 28, 2006.” (Finding 9.) In fact, the employee was taken off work by PA-C Coleman on June 5, 2006, “until the MRI has been done.” (Pet. Ex E.) While the physical scanning occurred on June 28, 2006, the MRI scan results were reviewed by Dr. Walker and then discussed with the employee on July 18, 2006. Noting the employee had not been able to return to painting, Dr. Walker released the employee to return to work and provided work restrictions on that date. It seems to us unreasonable, on these facts, to obligate the employee to begin looking for alternate employment beginning on the day of the MRI scan, before the scan was interpreted, physical restrictions were spelled out, and a work release provided by his treating physician. We, accordingly, modify the date on which the employee was released to return to work with restrictions to July 18, 2006, and similarly modify the award of temporary total disability benefits.
 There is no dispute the employee injured his right shoulder in a motor vehicle accident in 1989, subsequently undergoing arthroscopic surgery in February 1990 and a repeat surgery in 1991.
 The compensation judge acknowledged that Dr. McCarty also opined the employee’s right shoulder disability likely aggravated his pre-existing left shoulder condition. Dr. McCarty attributed the aggravation to increased dependence on the left upper extremity for activities of daily living following the injury to the right shoulder. The employee claimed only a specific injury to the left shoulder as a result of the June 1, 2006, event and did not claim, or provide evidence in support of, a compensable consequence of the specific injury.
 The compensation judge additionally found the employee failed to give timely notice to the employer of an injury to the low back or to the left shoulder and found that his claims relating to these conditions were barred by law. It is well established that an employee need only give notice of the personal injury itself and is not required to give separate notice of all of the body parts injured in that event. Hagy v. Morton Bldgs., Inc., 67 W.C.D. 573 (W.C.C.A. 2007); Runkel v. University of Minn., 62 W.C.D. 302 (W.C.C.A. 2002). The compensation judge’s determination is contrary to law. The findings and order are modified, accordingly.