FRANCISCO PEREZ, Employee/Cross-Appellant, v. LISANDRO BERRERA, JR., and MINNESOTA ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS CO., Employer-Insurer/Appellants, and TWIN CITIES ORTHOPEDICS, SURGICAL SPECIALISTS OF MINN., SUBURBAN IMAGING, PAR INC., ORTHOREHAB SPECIALISTS, INC., NORAN NEUROLOGICAL CLINIC, MINNESOTA SURGERY CTR., MERCY HOSP., MEDICAL ADVANCED PAIN SPECIALISTS, EMPI INC., CONSULTING RADIOLOGISTS, LTD., ALLINA MEDICAL CLINIC, ABBOTT NORTHWESTERN HOSP., UCARE MN/INGENIX, and TWIN CITIES SPINE CTR., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 16, 2011
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge's denial of causation for the employee’s left wrist condition.
TEMPORARY TOTAL DISABILITY; PRACTICE & PROCEDURE - REMAND. Where the underlying basis for an award of temporary total disability compensation is unclear from the record on appeal, and there are factors that could suggest the possibility of an oversight or error in the award, the award of temporary total disability compensation is vacated and the issue remanded for reconsideration.
Affirmed in part, vacated in part, and remanded.
Determined by: Stofferahn, J., Pederson, J., and Milun, C.J.
Compensation Judge: Peggy A. Brenden
Attorneys: Bernard J. Robichaud, Robichaud & Anderson, Minneapolis, MN, for the Cross-Appellant. Julie A. Williams, Law Offices of Elizabeth Holden Hill, Minnetonka, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s award of temporary total disability compensation from and after May 11, 2009. The employee cross-appeals from the judge’s finding that the November 17, 2005, work injury was not a substantial contributing factor to the employee’s left wrist condition. We affirm the denial of a left wrist injury on November 17, 2005, but vacate the award of temporary total disability compensation and remand for further proceedings on that issue.
The employee was born in Mexico and completed the fifth grade there. At the age of 13, he came to the United States, where he attended school for an additional year learning English as a second language. He began working at about age 15, subsequently performing a variety of agricultural jobs including ranch hand, cotton bailer, nursery worker and field worker. He also worked as a bus boy and as a janitor. Eventually he began working as a construction laborer. Since about 1993, he has worked as a roofer.
The employee has sustained a variety of injuries during his working career. Among these were low back injuries in 1987 and 1995, after the first of which the employee was surgically treated by lumbosacral fusion in 1988. On November 26, 2001, the employee sustained injuries in a motor vehicle accident with low back, neck, and mid-back symptoms. According to the report of Dr. Bruce Van Dyne dated October 1, 2002, he also had left arm pain from the shock of having braced both his hands against the steering wheel at the time of the 2001 vehicle collision. In 2002, he again had left arm symptoms starting at the neck and going down the arm into the hand after a fall down some stairs. In February 2005, the employee sustained a fall off a ten to twelve foot roof and had back and chest pain.
The employee sustained the work-related injury here at issue on November 15, 2007. He fell fifteen feet off a slippery roof, landing on his shoulder and back. While falling, he grabbed at a small tree, breaking his fall. He was able to continue working that day, and worked again the following day.
The employee did not seek medical care until several days later, on November 20, 2007. He was seen that day for head, back, chest, knee and ankle pain by Dr. David Vagneur at the Nicollet Mall Allina Medical Clinic. The doctor took him off work and advised him to apply heat to the affected areas, to rest, and to use over-the-counter pain medication. He was told to return in one week if his symptoms failed to improve.
The employee was seen again at the Nicollet Mall Clinic on November 28 and December 2, 2007, by Dr. David Van Schyndel, each time reporting continued chest and back pain. X-rays of the lumbar spine revealed slight upper end plate compression deformity or fracture at L1 which the doctor thought might be the reason for the pain.
The employer and insurer admitted injuries to the right ankle and right knee, and paid wage loss benefits and certain medical expenses. The employee was provided with vocational rehabilitation starting in December 2007 which initially focused on medical management as the employee was not yet released to work. In an initial report, the QRC noted that the employee was interested in pursuing a GED and perhaps some retraining, and that services might be expanded in the future to provide vocational counseling and guidance and possibly some retraining.
Despite chiropractic treatment and physical therapy, the employee’s symptoms failed to resolve. In January 2008, the employee returned to Dr. Vagneur for head, back, and chest pain and pain in the left knee, foot, and ankle.
By February 2008, the different components of the employee’s injury were beginning to be treated by a variety of specialists. Because only a left wrist condition is at issue on appeal, we will focus primarily on treatment records pertinent to that part of the body.
The employee was evaluated for neck pain, back pain, and numbness and weakness of the left limbs by Dr. Rupert Exconde at the Noran Clinic on February 4, 2008. The employee described having neck pain radiating to the back of his head and on the left side of his face, stating that “the same pain shoots to the left arm resulting in sensation of weakness, tingling and numbness up to the fourth and fifth digits.” This was the first mention of left upper extremity symptoms in medical records following the 2007 work injury. Dr. Exconde noted that manual muscle testing was difficult in the left arm due to pain. There was objective hyperesthesia over the left C8 and L5 nerve distributions. Dr. Exconde recommended an MRI of the cervical spine and an EMG of the left arm to evaluate possible cervical radiculopathy.
The MRI scan showed no significant interval changes when compared to an earlier scan from 2002. The EMG study, performed on February 8, 2008, showed no definite evidence of left cervical radiculopathy and was read as showing borderline left carpal tunnel syndrome.
When the employee was seen again by Dr. Exconde on March 17, 2008, the doctor diagnosed a left carpal tunnel syndrome which he felt might be causing the employee’s arm pain. He recommended conservative treatment using a wrist splint, and anticipated that the employee’s left arm symptoms should improve over the next two to three months.
The employee underwent arthroscopic surgery of his left knee on April 1, 2008. On April 7, 2008, when seen in follow up to the surgery by Dr. Jeffrey Nipper, the physician treating his left knee condition, the employee told Dr. Nipper that he was having pain in the PIP joint of his left index finger, which had been sore since the 2007 work injury, and that he was being treated for left carpal tunnel syndrome. Dr. Nipper examined the employee's left hand and wrist. The hand appeared normal, without atrophy or abnormalities, except for signs of diffuse low grade osteoarthritis and calluses consistent with the employee's history of heavy laboring work. Stability and range of motion were normal and Tinel's sign was negative. Phalen’s sign was positive. X-rays of the left hand showed normal osseous anatomy. Dr. Nipper diagnosed left carpal tunnel syndrome and low grade osteoarthritis of the left hand. He advised the employee that there was nothing wrong with the index finger that required treatment, and that he should expect aches and pains in his hands and wrists as a normal part of living, particularly in light of his history of performing heavy labor.
On April 21, 2008, the employee returned to see Dr. Nipper. In his chart note from that date, the doctor stated that the employee was seeking to be taken off work but he found nothing in the employee's complaints to keep him from being released to work. He characterized the employee's left carpal tunnel issues as “minor,” and advised him to continue wearing his wrist splint. The employee claimed he was now also having carpal tunnel symptoms on the right. Dr. Nipper found no findings consistent with a right carpal tunnel syndrome. He concluded his office note by stating that he felt that the employee was “to a large degree, misrepresenting the situation” with respect to many of his multiple pain complaints.
The employee also was seen by Dr. Exconde the same day in follow up for chronic pain. The employee told him that he had also started to have tingling and numbness of his right arm. Dr. Exconde recommended an EMG of the right arm to look for possible right carpal tunnel syndrome.
On April 26, 2008, the employee underwent left ankle reconstruction surgery.
Starting in June 2008, the employee received physical therapy for multi-level pain at the MAPS Medical Pain Clinic. In his initial therapy evaluation on June 10, 2008, and on one or two other occasions through August 2008, left hand pain was mentioned as one of his symptoms, though it was not a predominant focus of his treatment there. On August 7, 2008, an EMG of the left upper extremity was read as essentially normal, with no continuation of the left carpal tunnel syndrome denervation shown in the earlier EMG from February 2008.
Dr. Nipper, treating physician for the employee's left knee, opined that maximum medical improvement [MMI] for that condition had been reached as of October 2, 2008.
On October 6, 2008, the employee was seen by Dr. Yelena Usmanova for a neurological consultation at the Minneapolis Clinic of Neurology. The employee's complaints as of that date included pain in the lower back, neck, thoracic spine, arms and legs. His upper extremity pain was described only as “pain in this [sic] neck that goes down to the arms, more on the left side.” There were no complaints of hand or wrist pain.
In December 2008, the employee informed his QRC that he was currently going to school for his GED, attending classes from 1:00 to 4:00 p.m. and again from 5:30 to 8:30. The QRC noted that in his opinion the employee might need the GED in order to become suitably gainfully employed.
The employee was in a non-work motor vehicle accident on December 31, 2008. Only limited information was in evidence about this incident, specifically, a police report that indicated minimal damage to the vehicles, and a January 25, 2010, letter report and some treatment records of Dr. Timothy Guthman, a chiropractic physician who apparently treated the employee for the effects of the accident between August 28, 2009, and November 13, 2009. In a letter report, Dr. Guthman described the accident as one in which the employee’s car was rear-ended, “causing his head to be thrown forward and snapping back hitting his head on the . . .seat . . . he had pain in his neck, lower back and mid-back as well as severe constant head pain, left arm and bilateral leg pain.” Dr. Guthman stated that the employee would likely require chiropractic treatment as a result of the accident 15-30 times per year for the rest of his life.
Dr. Douglas Drake, the employee’s treating physician for the left ankle, opined that MMI was reached for that condition on January 21, 2009. In February 2009, the employer and insurer served the employee with a notice of their intention to discontinue temporary total disability compensation (“NOID”) effective February 9, 2009.
The employee had right knee surgery on February 10, 2009. He discontinued his GED coursework due to this surgery.
On July 20, 2009, the employee was seen by Dr. Thomas F. Varecka for evaluation of left hand and arm pain. The employee described his pain as emanating from the wrist up into the forearm with occasional numbness and tingling. He stated that he had fallen from a roof at work in 2007 and that his wrist had started giving him trouble at that time. The employee was tender over the dorsal radial aspect of the left wrist, particularly in the radioscapoid and scapholunate regions. Median nerve compaction testing was negative, as was Tinel's sign. Wrist motion was intact. X-rays were obtained and Dr. Varecka read them as showing a foreshortened and somewhat flexed scaphoid which he considered could represent a malunion of the scaphoid from a prior injury. Dr. Varecka did not think the EMG previously performed at the Noran Clinic indicated carpal tunnel syndrome. He suspected that the employee might have sustained a scaphoid fracture which had healed in a malaligned position. A CT scan was recommended.
On July 27, 2009, the employee returned to see Dr. Varecka for further evaluation of his left wrist. He still had ongoing wrist pain, and was exquisitely tender over the scaphotrapezial joint. He now told the doctor that he had reinjured his wrist in a motor vehicle crash some time after his fall from the roof at work, and had been seen in an emergency department where x-rays revealed the presence of a fracture. Dr. Varecka reviewed the employee's CT scan, which he felt showed a compression extension injury of the scaphoid which had healed in malalignment. There was obvious degenerative change at the scaphotrapezial joint.
On August 5, 2009, the employee underwent a left scaphotrapeziotrapezoidal arthrodesis performed by Dr. Varecka. In a letter opinion addressed to the employee’s attorney and dated August 30, 2009, Dr. Varecka wrote that
Mr. Perez relates two mechanisms of injury to his wrist. One involved a fall from a height in November 2007. He also indicates that he was involved in a motor vehicle collision several weeks later. He indicates further that he had xrays of his wrist obtained following the motor vehicle collision and that these showed a fracture of his scaphoid. Where these x-rays were obtained, and where he received treatment is unclear. There is no record of either having taken place here at Hennepin County Medical Center.
Development of scaphotrapeziotrapezoidal degenerative problems is almost always the chronic result of injury to the wrist, typically a sharp blow to the palmar surface of the hand while the wrist is in extension, as might occur when landing on the outstretched hand in a fall, bracing oneself against a dashboard during a car collision or similar mechanism.
Dr. Varecka opined that “there may very well have been some contribution from the fall” in November 2007, although he noted that when the employee was seen in the emergency room about a week after the fall, there was no complaint of hand pain and accordingly no x-rays were then obtained.
In July 2009, the employee filed a rehabilitation request seeking to amend the rehabilitation plan to explore retraining. A vocational evaluation was performed by Dr. Philip Haber, which showed the employee to have below average academic and IQ performance and a possible learning disability.
An administrative conference was held on October 7, 2009, on the rehabilitation request. On October 8, 2009, a decision and order was filed denying the request to amend the rehabilitation plan to explore retraining.
Following the wrist surgery, the employee had been placed on an aggressive hand therapy regimen to try and increase his range of motion. When seen on November 23, 2009, by Dr. Gaurav Khanna, he had shown significant improvement in range of motion. He was released to work by Dr. Khanna without restrictions related to his wrist.
In February 2010, the employee amended his claim to assert that he had been permanently and totally disabled since the date of injury.
On March 29, 2010, the employee was seen in follow-up for his left wrist surgery by Dr. Varecka and Dr. David Hemming, an orthopedic surgeon. He now reported that his pain had significantly worsened. X-rays suggested that the fixating screws in the trapezium had loosened, with decreased consolidation present across the scaphotrapezial fusion site. Dr. Hemming recommended that the employee undergo a bone grafting procedure to help with fusion of the nonunion site. The employee underwent the recommended surgery on April 28, 2010.
On December 21, 2010, a hearing was held before a compensation judge over the effects of the November 15, 2007, work injury. The issues included whether the employee had sustained permanent rather than temporary injuries to the low and cervical back; whether the employee had sustained a left wrist injury; whether the employee was permanently totally disabled or temporarily totally disabled from May 11, 2009, through the date of hearing; whether the employee was entitled to various permanent partial disability benefits; and whether certain medical services were reasonable and necessary. Following the hearing, the compensation judge found that the work injury had caused only a temporary aggravation of the employee's low back and neck condition, which ended on February 9, 2008, that the employee was not entitled to additional permanent partial disability for the left ankle, and that the work injury was not a substantial contributing factor in the employee's left wrist condition or need for left wrist surgeries. The compensation judge also found that the employee was not permanently totally disabled. The judge did, however, award temporary total disability compensation from May 11, 2009, through the date of hearing.
The employer and insurer appeal from the award of temporary total disability compensation and the employee cross-appeals from the finding that the work injury was not a substantial contributing cause of his left wrist condition.
1. Causation - Left Wrist Condition.
The employee cross-appeals from the judge’s finding that the November 17, 2005, work injury was not a substantial contributing factor to the employee’s left wrist condition. Because the resolution of the issue raised on appeal by the employer and insurer is partially contingent on the result of this cross-appeal issue, we address it first.
The compensation judge found that the preponderance of the evidence failed to establish that the November 15, 2007, work injury was a substantial contributing factor in the employee’s left wrist condition and associated surgeries. The employee argues that this finding is unsupported by substantial evidence and that the compensation judge’s determination was based on factual errors. We disagree.
The compensation judge explained her reasoning on this issue in some detail in her memorandum. The judge found that the employee did not complain of left wrist complaints until February 4, 2008, almost three months after the fall at work, and that he first complained of wrist pain that was clearly attributable to scaphotrapezial joint arthritis only in about July 2009, about 19 months after the 2007 work injury.
The employee acknowledges that these dates are correct as to the first appearance of his complaints in the medical records, but relies on his own testimony that he experienced wrist pain shortly after the fall, and that he consistently complained of pain in the left hand and wrist to his physicians but that they simply gave priority to his other injuries before addressing (or even recording) his left extremity complaints. The employee further argues that when his physicians diagnosed and treated him for possible left carpal tunnel syndrome in 2008, they had in fact failed to diagnose an existing scaphoid fracture. He contends that the compensation judge erred in considering the carpal tunnel syndrome a separate condition from that which led to his 2009 and 2010 wrist surgeries, and that the timing of the supposed misdiagnosis and treatment further bolsters the credibility of his testimony that he had ongoing symptoms of a scaphoid injury.
The compensation judge explained in her memorandum that she considered the employee’s memory as to the timing of his symptoms and treatment unreliable, given the number, extent, and duration of his many medical conditions over the years, and that she gave much greater weight to the contemporary documentary evidence of the medical records. This was in essence a question both of the credibility and weight afforded to the employee’s testimony, and, as such, a matter committed to the compensation judge as finder of fact. We cannot conclude that in giving the employee’s testimony less weight than the medical records, the compensation judge committed clear error in this case.
As to the judge’s reasoning that the carpal tunnel diagnosis and treatment in 2008 was for a condition distinct from the scaphoid problem diagnosed in July 2009, we note that the carpal tunnel diagnosis was not made in response to any complaints of hand or wrist pain symptoms, but was diagnosed due to an incidental finding of denervation consistent with mild carpal tunnel syndrome in the course of an EMG study that had been performed solely to rule out possible cervical radiculopathy. The employee's physicians opined in March 2008 that this mild carpal tunnel problem would likely resolve within a few months with conservative treatment. In fact an EMG study in August 2008 no longer showed the mild denervation, nor are there further complaints of pain in the left wrist or hand until July 2009 when the employee was first seen by Dr. Varecka. This evidence is consistent with the judge’s finding that the employee’s carpal tunnel syndrome in 2008 was a distinct condition from the later scaphoid problem.
The compensation judge also found the two expert medical opinions offered in support of the employee’s left wrist injury claim unconvincing. She noted that Dr. Varecka’s causation opinion was equivocal, and that the doctor stated only that “there may very well have been some contribution from the fall” towards causing the wrist condition. She also noted that both Dr. Varecka and Dr. Wengler, who had evaluated the employee at the request of his attorney, assumed that the employee had, or may have, sustained a scaphoid fracture in the 2007 fall, while there was contrary evidence in the form of a CT scan done on July 24, 2009 which was read as showing “no CT evidence of . . .scaphoid fractures or other fractures about the wrist.” Further, while Dr. Varecka’s opinion was that landing on an outstretched hand might be a cause of a scaphoid fracture, the employee did not testify that he had fallen in that manner in his work injury.
We conclude that substantial evidence supports the compensation judge’s finding denying causation for the employee’s left wrist condition.
2. Temporary Total Disability.
In an unappealed finding, the compensation judge found that the employee was not permanently totally disabled. The judge did, however, award temporary total disability compensation from May 11, 2009, through the date of hearing. The employer and insurer appeal, contending that the judge simply erred in making an award of temporary total compensation in this case.
The employer and insurer argue that the employee’s sole basis for a claim of temporary total compensation rested on the wrist condition with respect to which the compensation judge denied causation. The compensation judge, in an unappealed finding, also found that the employee’s low back and neck injuries were temporary aggravations, the effects of which ended on February 9, 2008. They point out that the employee was previously served notice of MMI from the only remaining conditions determined or admitted as associated with this injury, the left knee and the left ankle, and that temporary total disability was discontinued on that basis in February 2009.
We note that the primary claim for wage loss benefits was for permanent total disability compensation. The issue of a claim for temporary total disability compensation was not addressed in the judge’s initial discussion of the claims at the inception of the hearing, nor was it addressed in either party’s opening statement. The issue was first raised during a break in testimony following the cross examination of the employee and before testimony was taken from the employee’s QRC; it arose after the compensation judge inquired of counsel for the parties how they had reached the date from which permanent total disability was being requested. The parties concluded from their files that the date was intended to coincide with the cessation of temporary total disability compensation following the February 2009 NOID. At that point, the employee’s attorney said, “I guess in the alternative, Judge, that it [the employee's claim] would be temporary total for that time period.” The employer and insurer did not object to the claim for temporary total disability compensation being raised for the same period.
There was no specific discussion over the specific theory under which the employee was claiming temporary total disability compensation. The compensation judge’s memorandum notes only that the absence of a job search does not bar an award of temporary total disability benefits where an employee has been diligent in cooperating with rehabilitation; beyond this, however, it does not indicate the basis on which temporary total disability was awarded. In the absence of an explanation of the basis for the award, we cannot determine whether the employer and insurer’s arguments have merit.
Because the underlying rationale for the award of temporary total disability compensation is not clear from the findings, transcript, and memorandum, we vacate that award and remand that issue for reconsideration, including such further proceedings as the compensation judge may deem appropriate.
 The employee seems to have requested an administrative conference on the NOID, as the DOLI file includes a notice and order for such a conference to be held on March 9, 2009. Presumably, however, this conference was subsequently cancelled as no further proceedings on the matter appear in the file. There is no indication that the employee took any further steps to oppose the discontinuance.
 The compensation judge’s findings and memorandum refer to this evidence as “Employee Exhibit 1(G): 7/24/09 HCMC x-ray report.” The employee asserts on appeal that no such report exists, citing it as an alleged instance of a clear error by the compensation judge. We note that the records from the Hennepin County Medical Center in exhibit 1(G) do in fact include a “phone encounter” notation memorializing radiologist Herbert W. Jones’s report of the results of a July 24, 2009, CT scan. The report states in part: “No CT evidence of carpal tunnel syndrome and no scaphoid fracture or other fracture about the wrist.”
 We do, however, reject the suggestion in the employee’s brief that the compensation judge meant the TTD award as an award of retraining benefits pursuant to Minn. Stat. § 176.102, subd. 11(b). Retraining benefits under that provision are allowable only during a retraining plan which has been “approved” under that subdivision’s procedural requirements. There is no approved retraining plan in effect in this case, nor was a request for such approval at issue before the compensation judge below.