MICHAEL A. PETERSON, Employee/Appellant, v. ARIEL, INC., and MINNESOTA WORKERS’ COMP. ASSIGNED RISK PLAN/BERKLEY RISK ADM’RS, Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
DECEMBER 8, 2011
TEMPORARY PARTIAL DISABILITY. Substantial evidence supports the compensation judge’s determination that the employee was not entitled to temporary partial disability benefits where his employment resulted in insubstantial income in which the employee worked no more than 1.5 hours a week and earned no more than $15.00 a week.
CAUSATION - MEDICAL TREATMENT. Substantial evidence supports the compensation judge’s determination that the condition for which a specialist referral was requested is not related to the employee’s work injury.
Determined by: Stofferahn, J., Pederson, J., and Milun, C.J.
Compensation Judge: Catherine A. Dallner
Attorneys: James Michael Gallagher, Bloomington, MN, for the Appellant. Stacey H. Sorenson, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the compensation judge’s determination that he was not entitled to temporary partial disability benefits and from the denial of his request for referral to a specialist to evaluate his claimed head/right eye injury. We affirm.
Michael Peterson was employed by Ariel, Inc., on October 18, 2004, when he sustained a work injury. The employee and a coworker were on a scissors lift about thirteen feet in the air, installing a drain pipe for a roof drainage system when the lift failed and the employee and his coworker were thrown from the lift. The employee testified that he hit his head and shoulder when he fell and that he felt his head “exploded.” He was taken by ambulance from the work site to Hennepin County Medical Center [HCMC], arriving there about noon.
The admission notes at HCMC indicate the employee had fallen thirteen feet and landed on his “right shoulder/head.” The employee was complaining of low back and right hip pain and was admitted for observation and an orthopedic evaluation. The employee testified at the hearing that because of pain medication he was disoriented and was unable to recall much of his hospital stay. Nurses’ notes from about 8:00 p.m. on October 18 describe the employee as being “alert, awake, oriented.” Because of concerns that the employee might have broken his hip when he fell, x-rays were taken but showed no fracture. A physical exam was done on the morning of October 19 with no findings other than pain in his right hip with pressure. The employee was noted at that time to be “awake and alert and has only complaints of hip pain with walking, otherwise he appears to be fairly comfortable.” There was no reference to any other symptoms or complaints. The employee was discharged on the morning of October 20.
The employee saw Dr. Kevin Ronneberg on October 25, 2004. He was walking with a walker, complained of right flank and hip pain, and was taking narcotic pain medication. No other symptoms or complaints were listed. The employee was taken off work and his pain medications were renewed. The employee saw Dr. Ronneberg three more times and then was referred to an orthopedist for treatment of what was described as low back pain.
The employee’s treatment for his low back is not at issue in the present appeal and will not be discussed in detail. The employee had fusion surgery with instrumentation done at the L5-S1 level in 2009 and subsequently had surgery to remove the instrumentation. Care for the employee’s low back has been primarily at Minnesota Orthopedic Specialists and Twin Cities Spine Center. The employee began receiving temporary total disability benefits when he had his lumbar fusion surgery in 2009. He did not return to work after the surgery and the statutory cap on those benefits was reached on September 19, 2010.
The employee began his orthopedic treatment with Dr. Teresa Gurin at Minnesota Orthopedic Specialists on January 3, 2005. Her initial assessment was of back pain and leg numbness with tingling. In March 2005, Dr. Gurin took a history of the October 2004 injury which included head trauma. Head trauma continued to be identified as one of the employee’s assessments after that time. There is no indication in the records of any symptoms or treatment which the employee’s doctors considered to be related to head trauma.
The employee testified that right after he fell he began having ringing in his ears. He also told the independent medical examiner that he had daily headaches for three years as well as headaches affecting the right eye with watering and a pressure feeling in the eye. None of these symptoms appear to have been mentioned by the employee to any of his treating doctors.
The employee testified that at some point after his injury he saw an optometrist who found fluid and pressure behind his right eye and who told him he should see a specialist. There are no records in evidence from this examination and the employee was unable to identify this person or when this appointment took place.
The employee saw Dr. Gurin for his low back pain on March 26, 2007. In her chart notes for that date, Dr. Gurin recorded “Fluid behind right eye per optomistrist [sic]. He needs ophtho or neuro/retinal-ophtho consult.” There is no reference to this condition or a possible referral in any of the employee’s subsequent medical records.
The employee filed a medical request in September 2010 for what he described as a referral from Dr. Gurin for a consultation with a specialist for his right eye symptoms.
The employee was released to return to work by his treating physician Dr. James Schwender as of July 13, 2010. Dr. Schwender restricted the employee to work with no lifting over 10 to 15 pounds and no bending, twisting, kneeling, squatting or overhead reaching. The employee needed to be able to change positions as needed and was not to drive more than 15 miles one way. The employee began job search with the assistance of a QRC and a placement specialist.
The employee returned to part-time employment on September 29, 2010, with Do All of Forest Lake, Minnesota. Do All is an auto body shop owned by a friend and the employee’s job was to do some sweeping and cleaning up in the shop. Since he began this job, he has worked 1.5 hours on one day each week and earned $10.00 an hour or $15.00 a week. The employee’s duties, hours, and pay remained the same through the date of hearing. In December 2010, Dr. Schwender restricted the employee to work no more than 20 hours per week. No chart notes or other information from Dr. Schwender was introduced explaining this change.
The employee filed a claim petition seeking temporary partial disability benefits after September 29, 2010. The claim petition and the earlier medical request were heard by Compensation Judge Catherine Dallner on March 15, 2011. In her Findings and Order, the compensation judge denied the employee’s claim for temporary partial disability benefits, finding that the employee’s earnings were too insubstantial to qualify as gainful employment. The compensation judge also denied the employee’s medical request, determining that the employee had not established a head or right eye injury resulting from the incident on October 18, 2004. The employee appeals.
1. Temporary Partial Disability.
An employee must be gainfully employed to be entitled to temporary partial disability benefits. To be gainfully employed, the employee must have more than sporadic employment which results in insubstantial income. Hubbell v. Northwoods Panelboard, 45 W.C.D. 515 (W.C.C.D. 1991); Shepard v. Loram Maint. Of Way, 70 W.C.D. 8 (W.C.C.A. 2010). The question of whether particular employment is gainful employment or is employment resulting in insubstantial income is a question of fact for the compensation judge. Hildebrandt v. City of St. Louis Park, No. WC04-162 (W.C.C.A. Sept. 13, 2004).
In the present case, the compensation judge found the employee’s part-time job at Do All resulted in wages too insubstantial to establish post-injury earning capacity. In his appeal, the employee points out that the compensation judge, in her memorandum, noted this case was “strikingly similar” to Shepard. The employee argues the facts in this case are, in his view, substantially different that those in Shepard, and that the compensation judge was in error in denying his claim on this basis. The employee contends that, in contrast to Shepard, the employee did not move out of state and instead stayed in Minnesota and worked with a QRC and placement specialist to find employment.
We conclude that, in deciding this case, the compensation judge did not simply apply the facts of an earlier decision, but instead, appropriately considered precedent in reaching her determination. Each case dealing with the question of what constitutes gainful employment has unique facts and must be decided on the evidence presented at the hearing. The compensation judge did that here. In her memorandum, the compensation judge set out in detail the evidence she found to be significant.
The employee is employed by a friend. He works no more and no less than 1.5 hours on one day each week. He is paid $15.00 per week and his work consists of sweeping, dusting, and cleaning work benches. The employee was released to return to work by Dr. Schwender in July 2010 with no restrictions in the number of hours he could work in a week. The employee’s job search consisted of checking the three same websites on a periodic basis. No records from Dr. Schwender were introduced to explain why the employee’s work hours were reduced in December 2010.
We conclude substantial evidence supports the decision of the compensation judge. While no one factor is determinative in a case, we are unable to see how weekly earnings of $15.00 could be considered as anything other than insubstantial income.
2. Medical Request.
The employee claimed he injured his head when he fell and that as a result, he had symptoms of headaches as well as watering and spasms in his right eye. He requested approval of an “ophtho or neuro/retinal ophtho” consultation to evaluate the condition. The compensation judge determined that the employee had failed to establish that this condition was work-related and denied his claim. The employee appeals and argues that this decision is not supported by the evidence. We disagree.
Some of the medical records in evidence show that from time to time the employee mentioned in his history that he injured his head when he fell. The employee provided rather dramatic testimony of symptoms he had right after the fall and also testified that he was in a daze when he was in the hospital. Presumably, this testimony was meant to provide support for his claim of an ongoing head injury. However, his testimony is directly contradicted by the hospital records from HCMC. There are no medical records in which the employee told his doctors about any symptoms related to his claimed head injury. The employee’s current complaints of headaches and right eye watering and spasms are not mentioned at all in his records. There is no medical opinion that the employee needs a referral for his eye condition, that the claimed eye condition is related to a work injury, or even that the employee has any kind of eye problem.
The employee argued at the hearing that the consultation was recommended by Dr. Gurin. The chart note upon which this argument rests, that of March 26, 2007, which we quoted earlier, simply recorded the employee’s statement to the doctor as to what he said he was told by an unnamed optometrist and a record of the employee’s request for a referral. We see nothing in Dr. Gurin’s records to suggest that that she was recommending a referral or that such a referral was reasonable and necessary to treat a work-related injury.
The compensation judge’s conclusion that the employee failed to present evidence to meet his burden of proof on this question is well supported by the record. In addition, the compensation judge also accepted the opinion of Dr. Khalafalla Bushara, a neurologist who performed an independent medical examination [IME] on this question in February 2011. For purposes of his evaluation, Dr. Bushara accepted the employee’s statement that he had daily headaches for the past three years and that these headaches involved the right eye in various ways. After reviewing the voluminous medical records and examining the employee, Dr. Bushara concluded the claimed symptoms were not due to head trauma but were instead consistent with tension-type headaches that were not related to the work injury.
The employee argues that the opinions of the IME should not have been accepted because Dr. Bushara did not do any testing to determine if there was in fact abnormal pressure in the right eye. The employee points to no evidence or opinion that would suggest that any such test was necessary or appropriate. The information obtained by Dr. Bushara adequately established foundation for his opinion. Grunst v. Immanuel-St. Joseph’s Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988).
The compensation judge’s decision is affirmed.