NORMAN D. OLSON, Employee, v. MENASHA CORP. and AMERICAN MOTORISTS INS. CO./KEMPER INS. GROUP, Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 21, 1999

 

HEADNOTES

 

PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS.  Although the bulk of the compensation judge=s decision was comprised of recitations of the evidence, which do not constitute factual findings, the judge=s decision provided an adequate basis for review of the disputed factual issues, and no additional remand was required.

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert medical opinion, supported the compensation judge=s finding that the employee sustained a Gillette injury as claimed.

 

JOB OFFER - REFUSAL.  Where the employee=s treating physician had taken the employee off work, pending surgery, substantial evidence supported the compensation judge=s decision that the employee reasonably rejected the employer=s job offer.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Given the employee=s age, education, job history, disability, lack of rehabilitation assistance, and the other circumstances of this case, substantial evidence supported the compensation judge=s award of temporary partial disability benefits based on part-time farm work paying $100 per week.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  David S. Barnett.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s decision on remand as to the occurrence of a Gillette injury on October 25, 1994, the employee=s refusal of the employer=s job offers, the employee=s earning capacity, and the compensability of rehabilitation and certain treatment expenses.  We affirm.

 

BACKGROUND

 

The employee began working for Menasha Corporation in 1971.  After about a year, during which he stacked cardboard, or corrugated board, the employee worked either as a Adouble back@ operator or a Asingle face@ operator on a large machine known as a corrugator.  Both jobs involved manipulating large paper rolls, which were fed into the machine, cutting waste paper from the rolls and disposing of that waste, and monitoring the machine.  Paper rolls might weigh up to three tons, but a mechanical device was usually available to move and position them.  The number of paper rolls handled by the employee in any given shift depended on the size of the Arun.@  The employee was expected to assist other workers when he could and to perform other miscellaneous tasks connected with running the corrugator, such as cleaning his work area.  He worked full time and often overtime.

 

The employee began experiencing hand and wrist symptoms sometime in the 1980s, and he underwent carpal tunnel release surgery on the right in January of 1989 and on the left in February of 1989.  The employer and insurer apparently paid him various benefits due to his bilateral hand and wrist condition based on an injury date of December 5, 1988.

 

Sometime after his recovery from carpal tunnel surgery, the employee was transferred from his most recent job as a Asingle face@ operator back to an assignment as a Adouble back@ operator, on the recommendation of his doctor.  The employee testified that the two jobs were similar but that the single face operator assignment was more strenuous and required him to work with his hands at shoulder level; as a double back operator, he could work with his hands at waist level.

 

The employee continued working for the employer through October 24, 1994.  The following day, October 25, 1994, the employee did not report for his shift, and a few days later, on October 28, 1994, he began seeking treatment for a wide variety of symptoms, including difficulty walking, apparently suggesting initially to the employer that he might have had a stroke.  Medical records from this period contain conflicting complaints and also indicate that the employee, an alcoholic, had begun drinking again.  Eventually, some of the employee=s treating physicians concluded that the employee was experiencing residual carpal tunnel syndrome symptoms, bilateral ulnar neuropathy, and strain-type symptoms in his neck and upper back.

 

The employee was ultimately treated or evaluated by several physicians, including Drs. Paul Donahue, Soren Ryberg, Souheil Ailabouni, Charles Bland, Robert Shepley, and Richard Galbraith.  Dr. Ryberg, a neurologist from the Noran Neurological Clinic, first saw the employee in early November 1994, and he subsequently recommended additional hand, wrist, and arm surgery.  He also issued restrictions against lifting over twenty pounds, repetitive or firm grasping, and work above shoulder level.  Dr. Shepley concurred with Dr. Ryberg=s plan for repeat carpal tunnel release and ulnar nerve transposition surgery, but the insurer would not approve it.

 

In April of 1995, Dr. Bland examined the employee on behalf of the employer and insurer.  Dr. Bland essentially agreed with Dr. Ryberg that the employee=s work activities were a substantial contributing cause of the employee=s Acurrent condition involving bilateral carpal tunnel syndrome, any ulnar nerve involvement, as well as to [the employee=s] neck and upper back complaints.@  Dr. Bland also concurred with Dr. Ryberg=s restrictions.  However, Dr. Bland did not agree with the proposal for further surgery, in part because of the poor healing experienced by surgical patients who use alcohol and tobacco to excess.  Finally, Dr. Bland indicated that the employee had a total whole body impairment of 12% due to his bilateral ulnar nerve and carpal tunnel conditions.

 

In June of 1995, the employee met with the employer and his disability case manager to discuss employment alternatives, and the disability case manager evaluated five job possibilities with the employer and found them to be within the restrictions recommended by Dr. Ryberg.  On July 7, 1995, the employer=s human resources manager sent the employee a certified letter, indicating that one of the five positions evaluated by the disability case manager would be available to the employee effective July 10, 1995, and noting that a response by the employee was expected no later than July 24, 1995.  In the interim, on July 12, 1995, the employee consulted Dr. Ryberg, who reported that the employee=s symptoms and findings were persisting and that his function was very limited.  Dr. Ryberg concluded his report of that date as follows: AThis patient absolutely needs surgery.  He is not going to be allowed to work until he gets bilateral, median and ulnar nerves operated on.  Return for follow-up in one month.@  The employee testified that he did not contact the employer about the job offers because Dr. Ryberg had taken him off work.  He also testified that he discussed the job offers with Dr. Ryberg during the July 12, 1995, office visit.  Dr. Ryberg reiterated his recommendation that the employee stay off work pending surgery in August, September, October, and November of 1995 and January of 1996.

 

In January of 1996, the employee and the employer and insurer entered into a partial stipulation for settlement concerning the employee=s claims for various workers= compensation benefits due to his December 5, 1988, injury and/or an alleged Gillette injury^[1] of October 25, 1994.  Among other issues, the agreement settled the employee=s claims for temporary total disability benefits through November 15, 1995.  According to the stipulation, the employer and insurer admitted that the employee had sustained a work-related injury  Ato the bilateral upper extremities . . . on or about December 5, 1988,@ Ain the form of carpal tunnel syndrome, along with extensor and flexor tendinitis,@ but they denied that the employee had aggravated or injured his bilateral upper extremities as alleged effective October 25, 1994, and denied that the employee had sustained any work-related injuries to his neck, back, or shoulders.  An award on stipulation was issued in February of 1996.

 

Also in February of 1996, Dr. Ryberg performed another EMG, which, according to a later report, showed A[d]ramatic improvement . . . for all four neuropathies.@  As a consequence of that improvement, Dr. Ryberg rescinded his recommendation for surgery.  At the same time, Dr. Ryberg reinstituted the employee=s previous restrictions, indicating that those restrictions were now permanent.  A few weeks later, the employee began working part time for friends, Gertrude and Butch Sieg, on their farm, earning fifty dollars in cash a week, plus room and board, which Ms. Sieg also valued at fifty dollars a week.  The employee continued living with and working for the Siegs until early November of 1996, when he entered in-patient alcohol treatment.

 

On January 9, 1997, the employee underwent surgery in the nature of submuscular transposition of the right ulnar nerve, performed by Dr. Donahue.  In his reports, Dr. Donahue indicated that the surgery was performed to treat Aright cubital tunnel,@ which was causing paresthesias in the ring finger and small finger on the employee=s right hand.  Dr. Donahue also noted that those symptoms had improved following surgery, and the employee concurred with this assessment in his testimony at hearing.

 

Dr. Donahue=s records indicate that the employee was restricted from using his right arm for eight weeks after his January 9, 1997, surgery, and the employee testified that he began looking for work upon his release to do so.  In early May of 1997, the employee began receiving rehabilitation assistance through the Department of Labor and Industry Vocational Rehabilitation Unit.  Beginning July 25, 1997, the employee was employed through Delta Plus Temporaries at Arden International Kitchens.  The job was essentially full time and paid about $7.70 an hour.  A representative of Arden International testified that the employee was a good worker, and, as of the hearing date, the employee was considering two job openings with that employer directly.

 

The matter came on for hearing before a compensation judge on October 10 and December 16, 1997.^[2]  At that time, the employee was claiming that he had sustained a Gillette-type injury effective October 25, 1994, and that he was entitled to wage loss benefits, medical expenses, and rehabilitation benefits as a result of that injury and/or the earlier December 5, 1988, work-related injury.  As medical support for his claim, the employee relied largely on the records and reports of Drs. Ryberg and Bland.  The employer and insurer denied that the employee had sustained a Gillette injury on October 25, 1994, and denied that any benefits were due as a result of the December 5, 1988, injury, asserting, based primarily on the deposition testimony of Dr. Galbraith, that there was essentially nothing wrong with the employee that required treatment or affected his earning capacity.^[3] The employer and insurer also contended that the employee had unreasonably refused the employer=s July 1995 job offer, that the employee had not made a diligent effort to find other work, and that the employee=s employment at Sieg farm was Asham@ employment not representative of the employee=s earning capacity.

 

In a decision issued on March 3, 1998, the compensation judge concluded that the employee had not proven a Gillette injury on October 25, 1994, in large part because Dr. Bland=s opinion lacked Afoundation,@ and the judge denied the employee=s claims, in their entirety, with little additional explanation.  On the employee=s appeal from the compensation judge=s decision, this court reversed and remanded the matter for reconsideration, concluding that the judge erred in rejecting Dr. Bland=s opinion on foundation grounds, and noting that there was no indication of how the judge weighed the other medical opinions supporting the employee=s claims.  We further explained that A[t]he findings denying the employee=s claim for benefits [were] simply too general to allow us to ascertain or review the judge=s conclusions as to the continuing effects of the 1988 injury or as to the employer and insurer=s several noncausation-based defenses to the employee=s claim.@  Olson v. Menasha Corp., 59 W.C.D. 14, 22-23 (W.C.C.A. 1998).  Finally, our instruction to the judge on remand read as follows:

 

On remand, the judge should reconsider the employee=s October 1994 Gillette injury claim in view of all the medical evidence, including the adequately-founded opinion of Dr. Bland.  Even if the judge ultimately again denies the employee=s 1994 Gillette injury claim, for legitimate reasons, he must evaluate the wage loss and other benefit issues in the context of the admitted 1988 injury, which may necessitate findings as to the employee=s restrictions, earning capacity, job search, cooperation with rehabilitation, and alleged refusal of suitable employment, among other issues.  By our decision here we do not intend to imply that the judge must award the benefits in dispute, only that he must make findings adequate to resolve the dispute and to provide a reasonable basis for review in the event of another appeal.  The judge may on remand require additional submissions from the parties if he deems it appropriate.

 

Id.  Our decision in this matter was summarily affirmed by the Minnesota Supreme Court on January 25, 1999.

 

On August 2, 1999, the compensation judge issued a nineteen-page decision on remand.  In that decision, the judge resolved essentially all issues in the employee=s favor, concluding that the employee had sustained a Gillette injury on October 25, 1994, as claimed; that the employee was totally disabled during the periods of unemployment at issue (except while participating in in-patient alcohol treatment); that the employee had conducted a reasonably diligent job search during relevant periods; that the employee=s earnings from his work at Sieg farm and through Delta Plus Temporaries were reasonably representative of his earning capacity; that the employee=s medical treatment after October 25, 1994, was reasonable, necessary, and causally related to his work injuries; that the employee was a qualified employee for purposes of rehabilitation benefits; and that the employee had reasonably rejected the employer=s July 1995 job offers.^[4]  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@  Id.

 

DECISION

 

The Compensation Judge=s Decision on Remand

 

The employer and insurer contend that the judge=s decision on remand is inconsistent with Minn. Stat. ' 176.371, Abecause the Findings and Order on Remand do not demonstrate that the Compensation Judge adequately evaluated the evidence@ and Ado not demonstrate the Compensation Judge=s reasoning and basis for his decision.@^[5]  The employer and insurer also complain that the judge merely quoted lengthy excerpts from the medical records and the employee=s testimony, without clearly explaining Athe relevance of the bulk of the findings,@ that he did not explain his Areasoning in drawing conclusions from the evidence,@ and that he did not Aprovide any meaningful analysis of the evidence presented by the Employer and Insurer.@  Accordingly, the employer and insurer argue, the matter should be remanded once again for further findings and explanation.

 

The employer and insurer=s arguments are not entirely without merit, in that the compensation judge=s decision on remand does in fact consist largely of recitations of the evidence.  Such recitations do not constitute findings of fact and are not particularly helpful in ascertaining a judge=s reasoning.  At the same time, however, our decision in the prior appeal suggested that we were looking for some discussion as to how the compensation judge viewed the conflicting evidence.  More importantly, while more explanation as to the judge=s rationale might have been useful, the judge=s decision as a whole provides adequate basis for review of the disputed issues.  Finally, we have stated on several occasions that a judge is not required to discuss every piece of evidence submitted at hearing, see, e.g., Smith v. The Press, slip op. (W.C.C.A. Apr. 27, 1995), and we are not persuaded that the judge overlooked or inappropriately discounted the evidence presented by the employer and insurer.  This is especially so because the record here was extensive and the issues numerous.  Therefore, again, while more explanation as to rationale might have been helpful, we find no compelling reason to remand the matter yet again for reconsideration and further findings.

 

Gillette Injury

 

The judge=s finding as to the employee=s claimed 1994 Gillette injury reads as follows:

 

12.       Viewing the entire evidentiary record as a whole, including the well-founded opinions of Dr. Bland, the preponderant weight of the evidence of record establishes that as a result of the heavy and repetitive work required of the employee in his employment with the employer the employee did sustain a Gillette-type personal injury to his cervical spine and shoulders and upper extremities, and causing bilateral ulnar nerve entrapment, or substantially aggravating any pre-existing ulnar nerve entrapment, such injury being the result of the cumulative effects of subacute daily trauma over a period of time, culminating in injury on October 25, 1994.

 

In their appeal on this issue, the employer and insurer contend that substantial evidence does not support the judge=s finding because (1) the judge made no finding as to exactly what the employee=s work activities were or how they caused the Gillette injury to occur; (2) the employee=s job was not Aheavy and repetitive work@ as found by the judge; (3) no medical opinion Aaccurately discusses the Employee=s work activities and any causal connection between those work activities and the claimed October 25, 1994 injury@; and (4) there is no logical explanation for the shift in the employee=s symptom complaints during his first two weeks of post October 25, 1994, treatment.  We are not persuaded by any of these arguments.

 

Contrary to the employer and insurer=s suggestion, nothing in case law requires that a judge make a finding Aas to exactly what the Employee=s work activities were . . . and how they caused any Gillette injury to occur.@  As to the judge=s finding that the employee=s work was heavy and repetitive, the evidence is conflicting, but the employee testified that he considered the work heavy, that the mechanical device was not always available to move the paper rolls, meaning that he at times had to push the rolls as hard as he could, that the waste paper he had to dispose of could weigh as much as 75 pounds, and that he had to change paper rolls several times an hour, depending on the particular kind of corrugated board in production.  Therefore, while the evidence regarding the employee=s job duties is not particularly easy to follow, the record adequately supports the judge=s characterization of the work.  As for the employer and insurer=s arguments regarding adequate medical opinion, we implicitly found Dr. Bland=s opinion adequate in our prior decision, and we see no need to discuss that point again here.^[6]  Finally, the fact that the employee=s complaints varied during his first weeks of treatment does not necessarily mean that he did not sustain any work-related injury, and that fact in any event was for the compensation judge to weigh and provides insufficient justification for reversal.

 

A finding as to the occurrence of a Gillette injury is primarily dependent on the medical evidence.  Steffen v. Target Stores, 517 N.W.2d 579, 50 W.C.D. 464 (Minn. 1994).  While not expressly adopting it, the compensation judge was evidently persuaded on remand by the opinion of Dr. Bland.  As we indicated previously, Dr. Bland had adequate foundation for his opinion, and that opinion, in conjunction with the other evidence, adequately supports the judge=s conclusion.  We therefore affirm the judge=s finding on this issue.^[7]

 

1995 Job Offer

 

In June of 1995, the employee met with his disability case manager and the employer=s human resources manager to discuss return to work options.  According to a June 15, 1995, letter, the disability case manager evaluated five proposed jobs on site and concluded that all of the jobs were compatible with the restrictions recommended by Dr. Ryberg.  A letter from the human resources manager to the employee, dated July 7, 1995, indicates that the employee had been expected to contact the employer by June 19, 1995, regarding the jobs, but had failed to do so.  In that letter, the employee was advised that the employer would allow the employee to take one of the positions through the employer=s labor pool and would give the employee a permanent job assignment when such an assignment became available.  The human resources manager indicated that he expected to hear from the employee, regarding the job offer, no later than July 24, 1995.  However, on July 12, 1995, Dr. Ryberg took the employee off work completely pending the surgery that he had been recommending for months, and he kept the employee off work until at least February of 1996.  As a consequence, the employee did not respond to the employer=s job offer.  The compensation judge concluded in his memorandum that A[t]he fact that the employee was unable to work made the [employer=s July 1995] job offer . . . one which the employee could reasonably reject.@

 

On appeal, the employer and insurer contend that the record does not support the judge=s finding that the employee=s rejection of the employer=s job offer was reasonable.  In support of their argument in this regard, the employer and insurer note that Dr. Ryberg=s records disclose no change in objective findings that would justify restricting the employee from all work.  We cannot conclude that the judge=s finding is clearly erroneous and unsupported by substantial evidence in the record as a whole.  Dr. Ryberg=s reports for the period in question indicate that the employee=s function was very limited.  Moreover, in a November 10, 1995, letter, Dr. Ryberg explained his decision to take the employee off work as follows:

 

This letter is to reinforce our earlier discussion today regarding Norm Olson.  I intentionally took Mr. Olson completely off work earlier this year because he was continuing to show symptoms and signs of progression despite his not working.  I saw no way that he could return to work even with restrictions.  It remains my firm conviction that surgery is needed before maximum medical improvement and return to work can be considered.

 

Dr. Ryberg later changed his mind about the advisability of surgery, explaining that a repeat EMG showed Adramatic@ improvement in all of the conditions that had prompted his previous surgical recommendation.  However, the fact remains that the employee was taken totally off work by his treating physician at the time of the employer=s job offers, and, while the compensation judge could perhaps have found it unreasonable for the employee to follow Dr. Ryberg=s recommendation in this regard, the judge was certainly not required to do so.  See, e.g., Krutsch v. Federal Cartridge, 48 W.C.D. 156, 165 (W.C.C.A. 1992).  Therefore, because the record supports the judge=s conclusion as to the reasonableness of the employee=s response to the employer=s job offer, we affirm that conclusion.

 

Earning Capacity

 

The compensation judge awarded the employee temporary partial disability benefits, based on actual earnings, during the employee=s farm employment by the Siegs and during his employment as a laborer, through Delta Plus Temporaries, at Arden International Kitchens.  The employer and insurer dispute both awards.  However, with regard to the employee=s entitlement to benefits during his employment through Delta Plus, the employer and insurer argue only that the employee=s earning capacity was established by the employer=s July 1995 job offer.  Since we have already affirmed the judge=s conclusion that the employee reasonably rejected that offer, we need not consider this issue further.

 

The judge=s award of benefits during the employee=s employment by the Siegs presents a somewhat closer question.  The work was only part time, and the pay, including the provision of room and board, was only $100.00 a week.  Also, we agree with the employer and insurer that, contrary to the judge=s finding, there is little evidence in the record to support the conclusion that the employee conducted a reasonably diligent job search while working for the Siegs; the only evidence that we could find in this regard is the employee=s testimony that, AYeah, I checked on some jobs.@  However, the existence of a job search is not determinative of entitlement to temporary partial disability benefits, even during part-time employment; it is merely one fact for the judge to consider.  See, e.g., Nolan v. Sidel Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  Moreover, we cannot say that, as a matter of law, the employee=s pay by the Siegs was so low or the circumstances so suspicious as to compel a finding of sham employment or insubstantial income.  Compare Herrly v. Walser Buick, slip op. (W.C.C.A. July 15, 1994).  We also note that the employer and insurer have made no argument that the actual value of the room and board provided by the Siegs was higher than the value set by Ms. Sieg of $50.00 a week.

 

The judge=s finding as to the employee=s earning capacity during his employment at the Sieg farm reads in part as follows:

 

25.       The week ending April 5, 1996 through October 18, 1996 Mr. Olson was an employee on the Butch and Gertrude Sieg farm.  During that period he earned $100.00 per week.  He did light duty work, including operating a riding lawn mower, driving Butch to Northfield or Hastings to get parts [Butch had no driver=s license], drove a small tractor occasionally.  He worked four hours a day, five days a week, 20 hours a week at $5.00 per hour.  Each week he was paid $50.00 in cash.  In addition he was furnished room and board with a value of $50.00 per week.  While employed on the Sieg farm, the employee looked for other work.  Considering the problems with which the employee was then dealing, including his restrictions from his work-related personal injuries, the lack of any vocational rehabilitation services to assist him, his 8th grade education, his lack of experience in job search, his age, his limited work experience, his depression, this job constituted employment adequate upon which to conclude that for the period of the employment with Sieg that job accurately reflected his ability to earn, . . . .^[8]

 

Determinations of earning capacity are factual in nature, see Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976), and, given the factors considered by the judge, we cannot conclude that the judge=s award of temporary partial disability benefits, during the employee=s employment by the Siegs, is unsupported by evidence that a reasonable mind might accept as adequate.  The fact that another factfinder might have denied benefits during this period is not determinative.

 

Treatment and Rehabilitation Expenses

 

The employer and insurer contend that the claimed rehabilitation expenses and the treatment by Noran Neurological Clinic are not compensable Abecause the evidence in the record fails to establish that the Employee sustained a Gillette injury on October 25, 1994, or that the employee=s disability or need for [medical treatment or rehabilitation services] after October 24, 1994 is causally related in any way to the Employee=s claimed December 5, 1988 injury.@  Because the record adequately establishes causation, and because this is the employer and insurer=s only argument as to these expenses, we affirm.