ANDREW W. SMITH, Employee, v. HEARTWOOD CONSTR., INC., and INTEGRITY MUT. INC. CO., Employer-Insurer/Appellants, and ORTHOPAEDIC ASSOCS. OF DULUTH, MINNESOTA DEP’T OF HUMAN SERVS., and ST. LUKE’S HOSP. & REG’L TRAUMA CTR., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 28, 2010
CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - EXPERT MEDICAL OPINION. Substantial evidence, including expert medical opinion, supports the compensation judge’s finding that the employee’s work injury is a substantial contributing cause of his wage loss.
JOB SEARCH; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence of record supports the compensation judge’s conclusion that the employee conducted a diligent job search during the period of time for which he has claimed temporary total disability benefits.
Determined by: Rykken, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Eric W. Beyer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Respondent. Janet Monson and Andrew M. Grimsrud, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee’s work injury represents a substantial contributing cause of the wage loss he has sustained since that injury, from the finding that the employee’s termination from his employment was not for reasons of misconduct, and from the related award of temporary total disability benefits and provision of a rehabilitation consultation. We affirm.
On approximately June 23, 2008, Andrew Smith, the employee, began working for Heartwood Construction, Inc., the employer. On September 15, 2008, while working on a construction site, the employee grabbed overhead with his right hand to catch or deflect a falling roof truss, and immediately noticed a sudden sharp pain in his right shoulder. The employee informed his supervisor of the incident that same day. That evening, he also reported the incident to the company’s owner, who advised him to seek medical treatment at the urgent care department the next morning.
On September 16, 2008, the day following this incident, the employee sought medical treatment at St. Luke’s Urgent Care, reporting right shoulder and arm pain with intermittent tingling in his index finger and thumb. Dr. Kristen Bich examined the employee and assessed a suspected musculotendinous strain. She provided the employee with a sling for his arm, advised him to use ibuprofen and noted that it would be unsafe for him to return to work that day. Evidently after the employee advised Dr. Bich that he had an appointment the next day with the occupational health department, Dr. Bich recommended that he attend the appointment. He did not do so, but instead remained off work until September 22, 2008. The employee testified that when he returned to work, he continued to work through October 3. He self-limited his activities due to his right shoulder pain, until his right shoulder and arm pain became too severe for him to continue working.
The employee had previously injured his right shoulder in August 1998, following which he was diagnosed with a labral tear and underwent arthroscopic surgery. He later returned to work without work restrictions related to his shoulder. He also was earlier diagnosed with lymphoma and has undergone medical treatment for that condition. The employee also has a considerable history of chemical dependency, primarily with alcohol, and has undergone related treatment. During the three-month period he worked for the employer, the employee missed days from work due to intoxication. According to the employee’s testimony, he began drinking at home on his last day of work for the employer, Friday, October 3, “to try and kill the pain” in his right shoulder. He testified that he went to the hospital emergency room that weekend, where he was examined and misunderstood from a doctor’s brief examination that he had a recurrence of a previous cancer. He also testified that after waiting for about four hours with no other examination by medical personnel, he left the hospital. There is no medical record of a visit on October 4 or 5. The employee testified that he checked into St. Luke’s Hospital on October 8, 2008, and was in the detoxification unit from October 8 through October 10. At some point while the employee was there, he spoke with the employer’s owner; evidently during that conversation, or shortly thereafter, the employee’s job was terminated.
On October 20, 2008, the employee was examined by Dr. Nicole Schaefer for right shoulder complaints. She referred him for an MRI scan, which was read as normal. She then recommended physical therapy, which provided no substantial relief, and also recommended an orthopedic evaluation. On referral from Dr. Schaefer, Dr. Patrick Hall examined the employee on November 26, 2008. Based on his positive examination findings, Dr. Hall recommended a subacromial injection, continued physical therapy, and possible arthroscopic evaluation and surgery if the employee’s symptoms persisted. Dr. Hall restricted the employee from work, as had Dr. Schaefer. Although the employee had been scheduled for 17 physical therapy sessions, between November 6, 2008, and January 16, 2009, he cancelled six appointments and failed to attend three of the appointments. According to the physical therapist’s discharge report of March 23, 2009, the employee’s therapy goals had partially been met, but he still had difficulty with overhead and outstretched reaching tasks.
On January 29, 2009, the employee was examined by Dr. Tilok Ghose at the request of the employer and insurer. In his report dated February 13, 2009, Dr. Ghose noted his positive examination findings, and stated that his examination and physical findings were consistent with the employee’s original symptoms as detected by three other physicians. In Dr. Ghose’s opinion, the employee’s shoulder injury in September 2008 was related to his work. He concluded that the employee had not yet reached maximum medical improvement (MMI) and that the proposed arthroscopic surgery would be reasonable due to failed conservative treatment and the employee’s inability to undergo an enhanced MRI. Dr. Ghose concluded that the medical treatment which the employee had received since his shoulder injury was reasonable, necessary and causally related to that work incident.
Both Drs. Schaefer and Hall, with whom the employee received follow-up medical treatment, continued to restrict him from returning to work. The employee remained off work and sought authorization for the surgery originally proposed by Dr. Hall. A dispute arose, however, concerning the surgery and the employee’s entitlement to benefits. The employee filed a claim petition, seeking payment of wage loss benefits and medical expenses, as well as provision of a rehabilitation consultation. The employer and insurer denied the claimed benefits, contending, in part, that payment had already been made for reasonable and necessary medical expenses that were causally related to the employee’s injury.
The employee sought replacement employment after his position with the employer was terminated; the record contains job logs submitted by employee. Evidently in approximately April 2009, he was offered a job with another employer, pending the results of a drug test. According to the employee’s testimony, that job offer was withdrawn after test results showed evidence of a prescription pain medication other than the two types prescribed by Dr. Hall. The employee remained unemployed at the time of the hearing held on August 24, 2009.
In follow-up reports dated August 4 and 21, 2009, Dr. Ghose retracted his earlier opinions. Upon his review of additional medical records and upon being advised that the employee had worked without restrictions for a period of time following his work injury of September 15, 2008, he concluded that the employee did not sustain “a credible injury” in September 2008. Dr. Ghose also concluded that “[g]iven the fact that [the employee] was in detoxification, the excessive consumption of alcohol could have resulted in . . . self-induced injury or trauma during this state of intoxication.” Dr. Ghose no longer recommended surgery, concluding that the employee would not be a good surgical candidate due to his chemical dependency and the “risk of noncompliance and self-injury.”
The employee’s claim petition was addressed at hearing on August 24, 2009. At issue was the employee’s claim for temporary total disability benefits from September 16 through September 21, 2008, and from October 4, 2008, until the date of hearing and continuing. The employee and his supervisor testified at the hearing. Evidence submitted into the record included medical and personnel records.
In his findings and order, and in his amended findings and order, the compensation judge awarded the employee’s claim for temporary total disability benefits and for the provision of a rehabilitation consultation. The compensation judge found that as a result of the employee’s work injury, he has required accommodations to return to the work force; that the employee has been off work due to the effects of his injury, from September 16-21, 2008, and again from October 4, 2008, through the date of the hearing; that the injury represents a substantial contributing cause of the wage loss he has sustained since his work injury; that under the totality of the circumstances the employee has conducted a diligent job search; and that he therefore is entitled to temporary total disability benefits.
The compensation judge also concluded that the employee’s termination from his job was not for reasons of misconduct, as defined under Minn. Stat. § 176.101, but rather was related to the employee’s inability to continue working in his pre-injury position due to the effects of his work injury. In addition, the compensation judge concluded that the employee is entitled to a rehabilitation consultation with a qualified rehabilitation consultant of his choice.
The employer and insurer appeal.
The employer and insurer argue that the compensation judge erred in finding that the employee’s shoulder injury represented a substantial contributing factor to his continuing temporary total disability, as that finding was unsupported by current medical evidence.
The compensation judge relied on the opinions of the employee’s treating physicians, the opinion of Dr. Ghose outlined in his initial report, and the employee’s testimony, when reaching his conclusion that the employee’s continuing disability from work was causally related to his September 15, 2008 injury. Dr. Bich, who examined the employee the day after his injury, suspected that the employee had experienced a musculotendinous strain, and noted that it would be unsafe for him to return to work that day. In Dr. Schaefer’s examination letter of December 11, 2008, she advised that the employee remained disabled from work following his work injury. Dr. Hall, who recommended surgery if the employee’s symptoms persisted, also advised the employee to remain off work.
Dr. Ghose agreed with these treating physicians. In his initial report dated February 16, 2009, Dr. Ghose noted that the positive examination findings he had detected when examining the employee were the same as had been identified by Drs. Bich, Schaefer and Hall, and he expressed his opinion that the employee had sustained a work-related injury on September 16, 2008. Dr. Ghose also agreed that the employee had not yet reached MMI from his work injury, that he was a candidate for arthroscopic surgery for his shoulder injury, and that he required work restrictions as a result of that injury. Dr. Ghose’s medical opinion, as outlined in his initial report, was accepted by the compensation judge. It was on the basis of that report, as well as the records generated by the employee’s treating physicians, that the compensation judge concluded that the employee had been temporarily totally disabled from employment between September 16 and September 21, 2008, and from October 4, 2008, until the date of hearing and continuing.
The compensation judge noted that the three treating physicians all found physical findings consistent with those found by Dr. Ghose. The judge acknowledged that Dr. Ghose later retracted his opinions concerning causation, but the judge rejected the changed opinions of Dr. Ghose contained in his August 2009 reports. It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985). Adequate foundation is necessary for a medical opinion to be afforded evidentiary value. Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991). In this case, Drs. Bich, Shaefer, Hall and Ghose had adequate foundation for their medical opinions. It was the consistency between the findings made during the four doctors’ examinations that the judge found to be persuasive. Because the medical opinions were adequately founded, the compensation judge could reasonably rely on those opinions.
After issuing his initial evaluation report in February 2009, Dr. Ghose issued supplemental reports in August 2009 in which he retracted his earlier opinion on causation and on the nature of the employee’s condition. The employer and insurer argue that the later opinions of Dr. Ghose provided reliable and current evidence to submit into the hearing record. The compensation judge, however, specifically rejected those later opinions. “A compensation judge generally is free to accept a portion of an expert’s opinion while rejecting other portions.” Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W. 2d 763, 767 (Minn. 1980) (a factfinder generally “may accept all or only part of any witness’ testimony.”)). It was within the compensation judge’s purview to rely on the initial report of Dr. Ghose, while rejecting the opinions outlined in his later reports of August 2009.
The employer and insurer also argue that the reports of Drs. Hall and Bich, dated November 26 and December 11, 2008, respectively, were retroactive in nature, and that their reports did not indicate whether either doctor had knowledge of the employee’s continued construction work for two weeks following his injury, nor his stay in the detoxification unit in October 2008, nor the reason why his employment was terminated. Although the employer and insurer do not specifically contest the foundation of the treating physicians’ reports, they contend that those reports and the medical evidence contain discrepancies and do not provide support for the compensation judge’s findings.
The reservations that the employer and insurer express about the treating doctors’ opinions are reflective of the weight to be accorded those opinions by the compensation judge. Because there was foundation for the opinions expressed by Drs. Bich, Schaefer, Hall and Ghose regarding the employee’s work ability, the compensation judge could reasonably rely on those opinions when rendering his decision on the causal relationship between the employee’s work injury and his current condition and need for surgery. The compensation judge did not err by relying on those opinions when determining causation.
In addition, the court found the employee to be credible concerning his injury and the symptoms he has experienced since that injury. In his memorandum, the compensation judge stated that:
In addition to the treating doctor’s opinions the Court finds the employee to be a credible witness in describing his September 15, 2008 injury, and the residuals he suffers from the September 15, 2008 injury to include the self-limited activities following return to work for the period September 22, 2008 - October 3, 2008. Pursuant to the treating doctor’s opinions and the employee’s testimony the employee continues to suffer from the effects of his September 15, 2008 work injury and has a disability related to that injury which prevents him from returning to the work force without accommodations.
(Memo. at p. 6.)
The ultimate determination of medical causation is within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 456, 50 W.C.D. 181 (Minn. 1994). In addition, determination of witness credibility is uniquely within the province of the factfinder and only under rare circumstances would a decision based on credibility be reversed. See Maher v. Viger, No. WC05-102 (W.C.C.A. June 28, 2005); Clemmer v. National Steel Pellet Co., slip op. (W.C.C.A. Dec. 13, 2004). The compensation judge accepted the employee’s testimony concerning his injury and development of his symptoms, and specifically found him to be credible. We find no basis in the record to reverse the compensation judge’s assessment of the employee’s credibility.
The employer and insurer argue that the compensation judge erred in his award of temporary total disability benefits, contending that substantial evidence does not support a finding that the employee made a diligent job search for work necessary to entitle him to temporary total disability benefits. Central to the defense presented by the employer and insurer to the employee’s claim for benefits are their contentions about the employee’s alcoholism and its effect on his employment. The employer and insurer stressed at oral argument, and in their appellate brief, that their discussion of the employee’s chemical dependency was not intended to besmirch the employee’s character but was raised to demonstrate that this dependency and related behavior were the reasons that the employee’s employment ended. The employer and insurer argued that the “employee lost his job with the employer due to his consistent pattern of alcohol abuse and the way that it interfered with his work schedule,” and that he “was unable to procure an offered job in April 2009 because of a failed drug test.” The employer and insurer argue that the documentation of the employee’s very limited job search does not support the compensation judge’s conclusion that the job search was diligent. They also argue that the compensation judge failed to mention that the employee did not obtain the offered job after taking a drug test in April 2009, and that “the compensation judge did not understand or take into consideration the central importance of the employee’s chemical abuse problems.”
Whether or not the employee’s position with the employer was terminated because of his absenteeism due to his chemical dependency, in cases involving voluntary or involuntary terminations, an employee’s right to temporary disability benefits is suspended until “it has become demonstrable that the employee’s work-related disability is the cause of the employee’s inability to find or hold new employment.” See Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 924, 41 W.C.D. 964, 968 (Minn. 1989). That determination is to be made “upon consideration of the totality of the circumstances including the usual work search ‘requirements.’” Id. A diligent job search is one that is reasonable under all the facts and circumstances peculiar to the case. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988). The determination of whether or not an employee has performed a diligent job search is a question of fact for determination by the compensation judge. Kunferman v. Ford Motor Co., 56 W.C.D. 163 (W.C.C.A. 1996).
In this case, the employee submitted job logs dated from November 3, 2008, through August 5, 2009, in which he listed approximately 45 employers or jobs. The compensation judge referred to those job search records, and also found that the employee has required restrictions since his September 2008 injury that are causally related to that injury and that the injury was a “substantial contributing cause of employee’s inability to return to the work force without accommodations and a substantial contributing cause in the wage loss he has suffered since his work injury on September 15, 2008.” In his memorandum, the compensation judge explained the basis for his findings, stating that:
Since October 3, 2008 through the date of hearing the employee has either been off work per the treating doctor’s restrictions which the Court finds appropriate or the employee with a disability has under the totality of the circumstances herein . . . conducted a diligent job search. Those circumstances include his right shoulder symptoms, his waiting for approval of surgery, a very bad labor market and no rehabilitation assistance. Given the employee’s disability and the circumstances herein the court has found employee’s job search for relevant periods between October 4, 2008 and the date of hearing to satisfy his burden of proof for wage loss benefits for the periods set forth in the Court’s order.
(Memo. at p. 6.)
The employee’s treating physicians restricted him from work due to his right shoulder condition, and Dr. Hall has recommended that he undergo shoulder surgery. The employee’s work experience is primarily in the area of carpentry. He testified that he applied for any type of job that he felt capable of performing, but that he was physically limited in what he could do. The compensation judge outlined the factors he considered when concluding that the employee’s job search adequately supported his claim for temporary disability benefits, factors which are supported by documentary evidence and the employee’s testimony - - testimony that the compensation judge deemed to be credible.
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 (2008). 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. In this case, the evidence in the record supports the compensation judge’s finding that the employee’s work injury is a substantial contributing cause of his wage loss, and that the employee conducted a diligent job search. Accordingly, we affirm.
 The employee underwent an unenhanced MRI of his right shoulder as he was allergic to the dye used for an enhanced MRI.
 We note that a dispute exists relative to the issue of the employee’s credibility, in part, on the issue of whether the employee’s relapse with alcohol, and his claimed report to the hospital emergency room during the weekend of October 4 or 5, 2008, and his self-admission to the hospital on October 8, were related to his attempt to treat his shoulder pain or to his worries about a recurrence of cancer or other concerns he had. The employer and insurer contend that there is no evidence to show that this relapse and his later self-admission to the hospital were related to his shoulder pain.
In Finding No. 10 of both the original and amended findings and orders, the compensation judge referred to the employee’s report at the hospital that he was dealing with a work injury and workers’ compensation insurance issues. That reference is included in the report generated in a Rule 25 assessment update, dated February 9, 2009, which is attached to the original assessment report made earlier on October 8, 2008. It appears that the inference by the compensation judge, that the employee’s comments about his work injury were made during an October 2008 assessment, is incorrect. The compensation judge, however, was provided with the employee’s testimony that his relapse was related to his attempt to treat his pain. The compensation judge’s reference to the assessment does not outweigh the other evidence supporting his conclusion.