GEORGE PHILIP, Employee/Appellant, v. FORD MOTOR CO., SELF-INSURED, Employer/Cross-Appellant, and HEALTHPARTNERS, INC., MN DEP=T OF LABOR & INDUS., VRU, METROPOLITAN HAND SURGERY ASSOC., AND UNICARE, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 27, 2000

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including expert opinion, supports the compensation judge=s decision that the employee did not sustain a Gillette-type carpal tunnel injury in August of 1998, four months after he began work.

 

CAUSATION - TEMPORARY INJURY.  Substantial evidence, including contemporaneous medical records, supports the compensation judge=s conclusion that the employee=s work-related low back injury was merely temporary.

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the opinion of the employer=s own in-house plant physician, supported the compensation judge=s decision that the employee sustained a Gillette-type bilateral shoulder injury as a result of his work activities.

 

CAUSATION - SUBSTANTIAL EVIDENCE; EVIDENCE - CREDIBILITY.  Substantial evidence supported the judge=s denial of the employee=s claim of a specific work-related low back and shoulder injury, especially where the judge=s decision on this issue was based on her assessment of the employee=s credibility.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the judge=s finding of maximum medical improvement where there was little or no evidence of additional planned treatment or expected improvement in the employee=s condition.

 

WAGES - CALCULATION.  When using the 26-week averaging formula to calculate the employee=s weekly wage, the judge properly included earnings during a paid plant shutdown while excluding the shutdown period from days worked, pursuant to Fougner v. Boise Cascade Corp., 460 N.W.2d 1, 43 W.C.D. 286 (Minn. 1990).

 

NOTICE OF INJURY.  The compensation judge erred in concluding that the requirements of Minn. Stat. ' 176.141 had not been satisfied when records from the employer=s in-house medical department, together with outside medical records received by that department, established that the employer had at least Ainquiry notice@ that the employee=s conditions were work-related.

 

JOB SEARCH; REHABILITATION - COOPERATION.  Under the peculiar facts of this case, it was reasonable of the employee to expect to return to work for the employer for about a month following his going off work, obviating the need for an outside job search and entitling the employee to temporary total disability benefits for that period.  However, despite testimony by the employee=s QRC that the employee cooperated with rehabilitation efforts, which were directed at a return to work at the employer, the employee was not entitled to temporary total disability benefits after the date he received a letter from the employer, telling him that no work at the employer would be available in the foreseeable future, where he failed to either do an outside job search or inform his QRC of this communication.

 

Affirmed in part and reversed in part.

 

Determined by: Wilson, J., Johnson, J., and Pederson, J.

Compensation Judge: Carol A. Eckersen

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision denying his claim for benefits for alleged work-related injuries to his hand/wrists, shoulders, and back, contending that the judge erred in certain findings as to primary liability and notice of injury.  The employee also contends that substantial evidence fails to support the judge=s decisions as to maximum medical improvement and the diligence of the employee=s job search efforts after March 11, 1998.  On cross appeal, the self-insured employer contests the judge=s findings as to the occurrence of a work-related shoulder injury on September 4, 1996, the employee=s weekly wage on that date, and the employee=s cooperation with rehabilitation.  We affirm in part and reverse in part.

 

BACKGROUND^[1]

 

The employee was born on December 7, 1945, and lived much of his life in New York City.  His employment history includes time in the military and work as a pharmacist=s assistant, a federal correctional officer, and an ambulance attendant.  Sometime in 1987, the employee moved from New York to the Twin Cities.  He testified that, following the move, he received unemployment compensation for some period before obtaining a seasonal job loading boxes at Target.  Next he worked through an employment agency for Calhoun Maintenance, where he spent most of his shifts vacuuming.  He apparently worked about two months in the maintenance/vacuuming job.

 

On April 25, 1988, after passing a pre-employment physical, the employee commenced employment for Ford Motor Company [the employer] in their St. Paul truck assembly plant.  Over the next ten years, he performed a series of jobs for the employer, beginning with three jobs in the employer=s chassis department:  the tire mount job, the gusset job, and the rivet job.  All three jobs, which the employee performed for a week or two each, required repetitive use of the hands and/or wrists.  The employee testified that his wrists became black and blue on the tire mount job and that he was moved to the gusset job because he could not keep up with the necessary pace.  On the gusset job, the employee=s hands became blistered, causing him to go to the employer=s in-plant medical department for bandages and pain medication.  The rivet job required the employee to use several air guns, which hung from the ceiling, to tighten bolts, and he testified that the guns vibrated heavily and Apulled@ from the torque.  The employee further testified that he was moved from this job by his supervisor because he could not hold the guns.

 

Sometime in June of 1988,^[2] the employee began working in the employer=s Abody build@ department, in a position known as the Across member@ job, which involved using a large welding gun.  He performed this job for some months,^[3] and, during his assignment there, he received treatment for bilateral hand symptoms, both in the employer=s medical department and from other medical providers.  According to a June 25, 1988, treatment note by Dr. C. Manning, the employee had been experiencing hand pain for the past two or three weeks after having been on a new job Afor the last month in which he use[d] a machine that require[d] being gripped tightly all day long.@  While Tinel=s sign was negative, the employee reported numbness to light touch and pin prick at the palmar tips of the fingers on the right hand, and there was mild swelling of both palms.  Dr. Manning suspected Aat least an element of carpal tunnel syndrome@ as well as discomfort due to direct friction.  The employee was asked, but declined, to fill out a workers= compensation report.  Dr. Manning also recommended that the employee try to avoid gripping, that he use ice and ibuprofen, and that he follow up for further evaluation.

 

Ford=s plant doctor at the time, Dr. Nusrat Rajput, evidently referred the employee to Dr. Brian Krasnow for an EMG, which was performed on August 19, 1988.  According to Dr. Krasnow=s report, that test showed Amorbid right carpal tunnel syndrom[e] with right thenar denervation,@Amoderate left carpal tunnel syndrom[e],@ and no cervical radiculopathy or myopathy.  Dr. Paul Donahue, to whom the employee was also referred by Dr. Rajput, recommended bilateral carpal tunnel release surgery, which the employee declined, and issued restrictions on hand use.  A repeat EMG performed on November 18, 1988, was read by Dr. Neil Dahlquist as showing Aextremely severe bilateral carpal tunnel syndrome.@  Treatment for this condition included medication, cortisone injections, and use of splints.

 

The employee was eventually moved from the cross member job to the AA-post@ job in an attempt to comply with the restrictions recommended by Dr. Donahue.  The A-post job required the employee to lift fifteen-pound parts, A-posts, load them onto machines similar to conveyor belts, and apply a sealer with a sealer gun.  The employee testified that this job required constant bending and reaching to pick up the A-post stock and place it into the machine.  A fully assembled A-post weighed about 50 to 60 pounds, and the employee also had to remove them from the machine after assembly.  He apparently remained in the A-post job for several years.  During this period, in December of 1991, the employee received treatment for Atendinitis of the shoulders and low back,@ receiving cortisone injections for his shoulder symptoms.  Seven months later, in July of 1992, the employee sought treatment from Dr. D. L. Von Weiss for continued low back symptoms, which the doctor diagnosed as a strain.

 

In about September of 1993, the employee was moved from the A-post job to the roof assembly job when use of a welding gun was added to the A-post job requirements, exceeding the employee=s hand restrictions.  The roof assembly job involved repeated bending, reaching, and some heavy lifting, especially when a hoist used to lift larger truck roofs was not functioning.  The employee testified that this job caused him to experience hand, shoulder, and low back symptoms, but he continued to perform it for about two years.

 

During his time on the roof assembly job, on July 15, 1994, the employee was seen by a Dr. Rajamannan for Aa 2 year history@ of low back pain, Awith left lower extremity discomfort over the past six weeks.@  X-rays were remarkable for marked degenerative joint disease, spondylosis, and Grade II spondylolisthesis at L5-S1.  The employee was seen again for low back symptoms on July 19, 1994, and Dr. George Kramer took him off work from July 22, 1994, through July 25, 1994, completing a Ford Medical Leave Authorization form to this effect that was apparently received by the Ford medical department on July 26, 1994.

 

The following month, in early August of 1994, the employee was seen again by Dr. Donahue, who reiterated the employee=s hand-related restrictions and noted that the employee had evidence of mild impingement syndrome in his shoulder or shoulders.  At that time, Dr. Donahue apparently advised the employee to follow up with an orthopedic surgeon should his shoulder symptoms increase.

 

In about September or October of 1995, the employee moved from the roof assembly job to the radiator support job, which required reaching over shoulder level to hang radiator supports on hooks.  The employee testified that this job caused hand symptoms and strain to his shoulders but that he was able to perform it if he took ibuprofen.  He left this job when a drilling gun was added, exceeding his restrictions on repetitive squeezing.

 

The employee=s next job was the floor pan job, which he apparently began sometime in early 1996.  In this job, the employee and another worker would lift a heavy piece of metal, the floor pan, over a rod and into a machine, which necessitated lifting over shoulder level.  The employee testified that he experienced shoulder and low back pain while performing these work activities, but he was apparently on this job for eight or ten months.

 

In April of 1996, the employee was seen by Dr. Asa Kim for complaints of low back and leg pain that he related to standing at work.  Dr. Kim concluded that the employee=s low back pain was probably related to gluteal tendinosis, rather than nerve root irritation, and that the employee=s left leg pain was probably due to Adynamic spinal stenosis@ associated with L5-S1 spondylolisthesis.  A lumbar MRI scan performed on April 4, 1996, disclosed advanced degenerative hypertrophic facet changes and probable bilateral spondylolysis at L5 on S1 with impingement at the L5 nerve root, among other findings.  Dr. Kim subsequently gave the employee a cortisone injection and referred him for an epidural block to address his neural foraminal stenosis.

 

In mid August of 1996, the employee was evidently taken off the floor pan job by Dr. Zubeida Kahn, then head of the employer=s plant medical department, because of hand pain and swelling, possibly from a sliver or insect bite.  When he saw Dr. Donahue about two weeks later, on September 4, 1996, the employee was complaining of a sudden swelling in his right hand, which had been diminishing, as well as Abilateral shoulder pain and stiffness, frequent paresthesias in both hands, especially with heavy lifting and gripping.@  Prior to noting the employee=s complaints, Dr. Donahue indicated in his report that the employee had A[p]reviously [been] doing the floor pan job which involves lifting up to 48 pounds and work with the arms over the shoulder level.@  Dr. Donahue=s diagnosis was A[h]istory of cellulitis right hand, probably secondary to metal sliver,@ ongoing bilateral carpal tunnel syndrome, and A[b]ilateral shoulder stiffness, probable degenerative changes of the rotator cuffs.@  Dr. Donahue recommended that the employee Aremain on restrictions for carpal tunnel and for shoulder problems,@ now including no work with his arms elevated above shoulder level, and Ford=s medical department was notified of those restrictions.

 

On August 16, 1996, the employee tried a job in the employer=s paint department, the Ablack-out@ job, which he performed for less than one day, complaining that the fumes in his work area made him dizzy and that the job duties hurt his hands.^[4]  The employee apparently told Dr. Kahn the following day that the job exceeded his restrictions and then looked for other work within the plant.  Eventually, in late August or early September of 1996, the employee started a driver inspection job in the pre-delivery section of the plant.  This job involved visual inspection of trucks, using a checklist, as well as driving the trucks on the streets and highways.  While working in this job assignment, the employee was occasionally needed to perform other jobs because of worker absences.  At some point during the employee=s work in the driver inspection job, Dr. John Robrock, who had seen the employee periodically in the past at Park Nicollet Medical Center, became one of his primary treating physicians.

 

On January 28, 1998, while he was still in the driver inspection job, the employee was evaluated by Dr. Mark Friedland for purposes of assessing his need for restrictions, in accordance with the employer=s contract with the labor union.  After reviewing the employee=s medical records and examining the employee, the doctor diagnosed L5 spondylosis, Grade 1 spondylolisthesis and degenerative disc disease and facet arthrosis, severe bilateral carpal tunnel syndrome, and possible mild impingement syndrome without clinical evidence of rotator cuff tear.  As for the limitations related to these conditions, Dr. Friedland advised that the employee should observe restrictions on lifting, repetitive bending, twisting, and stooping, work with his arms above shoulder level, gripping, pinching and use of vibratory air tools, rapid or repetitive wrist flexion, and static positioning.^[5]  Because of the purpose of his evaluation, Dr. Friedland did not at that time address the question of causation of the employee=s conditions.

 

The employee was apparently taken off the driver inspection job in about mid February 1998 when the job became classified and thus subject to bidding under the union contract.  For about two weeks thereafter, the employee worked as a timekeeper back in the body build unit, losing this job when it too became classified.  After looking for other work in the plant for two days, the employee was placed on Ano work available@ status, meaning that the employer had no work for the employee within his restrictions.  Subsequently, on March 11, 1998, the employee was sent back to the black-out job, over his objections, after another plant physician, Dr. Richard Hirt, indicated that that job was compatible with his limitations.  The employee only worked the black-out job for about six hours before reporting to the employer=s medical department with complaints of back pain.  After he left work, the employee sought treatment in an urgent care clinic,^[6] complaining of exposure to noxious fumes.^[7]  The employee testified that he aggravated his low back and shoulder conditions in the black-out job and that the fumes in that job had again made him dizzy.  Following his brief attempt at performing the black-out job, the employee was again placed on Ano work available@ status, effective March 11, 1998.

 

On March 18, 1998, after retaining an attorney, the employee was seen again by Dr. Robrock for the purpose of Ahistorical review of his injuries, and to clarify his restrictions.@^[8]  According to Dr. Robrock=s report of that date, all of the employee=s visits to Park Nicollet over the preceding ten years Ahad been through [the employee=s] personal health insurance but patient states this apparently had been a mistake,@ in that his conditions had been work-related.  Dr. Robrock also indicated that review of the employee=s Park Nicollet chart disclosed that Athe only workers= comp injury that can be found in [the employee=s] file is dated 8/26/96 when he had an infection of his right hand.@  Because of Athe complex nature of the employee=s claim,@ Dr. Robrock referred the employee to Dr. Kevin O=Connell for assessment of the employee=s current physical abilities and long-term need for restrictions.

 

The employee was seen by Dr. O=Connell on April 8, 1994.  In his later report from that evaluation, Dr. O=Connell delineated the employee=s previously diagnosed hand, shoulder, and lumbar conditions as well as diagnosing Ahistory of chemical exposure with adverse reaction to solvents@ and chronic pain syndrome.  Dr. O=Connell concluded that the employee was capable of light-duty work as long as he observed various restrictions.  Dr. Robrock had issued reports with similar restrictions on March 18 and 20, 1998.  In a letter dated April 9, 1998, an unnamed representative of the employer=s workers= compensation department formally notified the employee of his placement on Ano work available@ status.

 

On May 15, 1998, the employee filed a claim petition, alleging entitlement to wage loss, medical, and rehabilitation benefits related to bilateral carpal tunnel syndrome, his low back condition, right and left shoulder injuries, and injury due to exposure to noxious fumes.  As dates of injury, the claim petition listed August 19, 1988; July 19, 1994; September 3 and 4, 1996; and August 11, 1998.  Although it had apparently been paying for medical treatment related to the employee=s carpal tunnel condition for many years, the employer ultimately denied liability for all claimed injuries.

 

On June 14, 1998, the employee sought assistance from the Department of Labor and Industry Vocational Rehabilitation Unit, and a rehabilitation consultation was eventually performed by QRC Michael Lawson in early August of 1998.  About a month later, in early September of 1998, the employee and QRC Lawson executed a rehabilitation plan with the goal of returning the employee to work with the employer.  At about the same time, on September 2, 1998, the employee attended a meeting with employer personnel at the St. Paul plant to identify jobs that might be within his restrictions.  QRC Lawson testified that he contacted the employer on two occasions early on and was never told that the employee was unlikely to return to work there.  Both before and after commencement of rehabilitation efforts, the employee confined his job search to the employer, calling plant personnel and checking job postings listed on the employer=s bid board.  Eventually, in February of 1999, the employee was notified by letter that, in effect, he need only call to check job availability every ten to fourteen days.  While the employee continued to inquire about jobs at the employer, he was never placed and remained off work, receiving private disability benefits from Unicare.

 

Hearing on the employee=s claim petition was held on five intermittent dates beginning on September 23, 1999, and ending February 9, 2000.  At the hearing, the employee was alleging entitlement to benefits for a Gillette-type^[9] carpal tunnel injury of August 19, 1988; a Gillette-type low back injury of July 19, 1994; a Gillette-type bilateral shoulder injury of September 3 or 4, 1996; and a Gillette-type low back and shoulder injury on March 11, 1998.  The employer denied that the claimed conditions were work-related and further contended that the employee had failed to give timely notice of injury with regard to the alleged low back injury of July 19, 1994, and the alleged bilateral shoulder injury of September 3 or 4, 1996.  Other issues included whether the employee had reached maximum medical improvement [MMI] with respect to his alleged injuries; his entitlement to temporary total disability benefits after March 11, 1998, with sub-issues of job search and cooperation with rehabilitation efforts; the employee=s weekly wage with respect to the alleged September 1996 bilateral shoulder injury; and the employee=s eligibility for rehabilitation assistance.

 

During the course of the five-day hearing, testimony was taken from the employee; QRC Lawson; Richard Zak, the employer=s current workers= compensation administrator; Stephanie DeBuck, a workers= compensation investigator for the employer^[10]; Steven France, an employer labor relations representative; Dr. Jetzer, who currently provides contract occupational medical services in the employer=s St. Paul plant; and Nancy Schillinger, a former co-worker of the employee who functioned as a first-line union representative during a portion of the employee=s employment with the employer.  Much of the testimony from the employer representatives concerned how work injuries are supposed to be reported at the employer, the functions of the employer=s workers= compensation department and in-house medical department, and the way specific jobs are obtained by plant workers, including injured workers, under the union contract and seniority system.  Other evidence submitted at hearing included the deposition testimony of Dr. Kahn; the employee private medical records beginning in 1988; the employer=s in-house medical department records; the employee=s rehabilitation records and job search logs; and two reports from Dr. Friedland.

 

In a decision issued on April 21, 2000, the compensation judge concluded that the employee had not sustained a work-related carpal tunnel injury on August 19, 1988, or a work-related low back and shoulder aggravation/injury on March 11, 1998.  While the judge did find that the employee had sustained a work-related but temporary low back injury on July 19, 1994, and a work-related shoulder injury on September 4, 1996, she also found that the employee had not given the employer statutory notice of either injury.  The judge further concluded that the employee had reached MMI effective August 18, 1998, that he had cooperated with rehabilitation assistance, that he had not conducted a diligent search for work after March 11, 1998, that he was not a qualified employee for purposes of rehabilitation assistance, and that his weekly wage at the time of his September 4, 1996, shoulder injury was $891.28.  All benefit and reimbursement claims were denied.  Both parties 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.

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993).

 

DECISION

 

Alleged August 19, 1988, Carpal Tunnel Injury

 

The employee alleged that he sustained a Gillette-type injury in the nature of bilateral carpal tunnel syndrome effective August 19, 1988, the date of his first EMG.  Certainly there is evidence in the record that would support that conclusion.  The employee testified that he had never experienced carpal tunnel-type symptoms prior to beginning his employment with the employer, and it is essentially undisputed that his work for the employer, especially his first several jobs, required repetitive hand and wrist use.  Moreover, the employee=s treating hand physician, Dr. Donahue, reported on several occasions that the employee=s carpal tunnel syndrome was causally related to his work activities for the employer, and Dr. Donahue=s records concerning the employee=s carpal tunnel treatment contain no references to preexisting symptoms.  However, there is also evidence to support the judge=s denial of the employee=s claim.

 

Dr. Friedland evaluated the employee first on January 28, 1998, to give an opinion on the employee=s restrictions, and then again on August 12, 1998, in an independent medical examination for the employer.  In his first report, Dr. Friedland wrote initially that the employee Adenie[d] having any pain in his hands . . . prior to [beginning work at the employer].@  However, later in the same paragraph, the doctor wrote, A[a]pproximately three or four months before [the employee] began work at Ford Motor Company he began noting symptoms of carpal tunnel syndrome bilaterally with numbness of the hands and cramping sensations of the hands with weakness of the grip.@  When addressing the causation issue in his second report, Dr. Friedland wrote as follows:

 

It is further my opinion that Mr. Philip=s bilateral carpal tunnel syndrome was not substantially caused by his work activities at the Ford plant.  This is based upon Mr. Philip=s own history to me of January 28, 1998 when he told me that his symptomatology of numbness, cramping and weakness of grip of both hands began three or four months before he began work at the Ford Motor Company.  This, therefore, certainly indicates the presence of carpal tunnel syndrome prior to his employment at Ford Motor Company.  This is further supported by the findings on EMGs of August 19, 1988 of severe carpal tunnel syndrome.  This degree of abnormality on EMG takes generally years to develop and certainly could not have developed within the short span of time after which Mr. Philip began work at the Ford Motor Company in 1988.

 

The compensation judge quoted from Dr. Friedland=s opinion before concluding that the employee had a preexisting carpal tunnel condition and that he had not sustained a Gillette injury on August 19, 1988, as claimed.  In her memorandum, the judge acknowledged that the employee had Aflatly denie[d] saying [to Dr. Friedland that] he had any problems with his hands before working for Ford,@ and that the employee had testified that he in fact never had any hand problems or treatment before commencing his employment there.  However, the judge then went on to reiterate Dr. Friedland=s opinion of no causation, prior to concluding, again, that the employee had not proven that his work activities caused or aggravated his carpal tunnel syndrome condition.

 

On appeal, the employee argues initially that Dr. Friedland=s first report is internally inconsistent, at one point recording a denial by the employee of previous hand problems while at another point recording that the employee had experienced carpal tunnel symptoms three or four months before beginning work at Ford.  However, while the employee may have a point as to this discrepancy, the fact remains that, in Dr. Friedland=s opinion, the severe degree of carpal tunnel syndrome evidenced by the employee=s August EMG could not possibly have developed in the short time the employee had worked for the employer prior to that test -- from April 25, 1988, to August 19, 1988.  In fact, Dr. Manning, the first non-Ford physician of record to treat the employee for hand symptoms, suspected carpal tunnel syndrome as early as June 25, 1988, only two months after the employee began his job.  We also note that, while it may be true that there are no pre-employment medical records concerning carpal tunnel syndrome or treatment, the employee, who was fifty-three years old when the hearing began, could not recall the names of any of the providers he had treated with, for any conditions at all, prior to his work for the employer.  As such, there are simply no available medical records of any kind for the employee prior to 1988.  The lack of such records, however, does not necessarily establish that no carpal tunnel treatment or symptoms existed prior to the period at issue.

 

It is evident to us that the compensation judge based her ultimate decision on a rejection of the employee=s testimony about his lack of prior hand symptoms, together with an acceptance of Dr. Friedland=s opinion on the significance of the extremely abnormal August 1988 EMG results.^[11]  Both credibility assessments and deciding between conflicting expert opinions are generally for the compensation judge.  See, e.g., Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989); Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Moreover, it is important to note that the issue here is not whether the employee=s ten years of work at the employer caused or aggravated his carpal tunnel condition but whether the employee sustained a Gillette-type bilateral carpal tunnel syndrome injury culminating four months after he began his job.  Therefore, while we find this to be a close question, we cannot conclude that the compensation judge=s decision is unsupported by the record as a whole, and we must affirm it.

 

Nature of the July 19, 1994, Low Back Injury

 

On July 19, 1994, the employee sought treatment for low back and leg pain, reporting that he had Anoticed intermittent back and leg pain over the past two years that has become more constant.@^[12]  The employee remembered no specific injury but reported that he stood all day at work and was required to reach while putting roofs on light trucks.  Following examination and x-rays, the doctor^[13] diagnosed spondylolisthesis at L5-S1 with transient radicular pain, and mechanical low back pain.  From July 22, 1994, through July 25, 1994, the employee was taken off work by Dr. Kramer, who also diagnosed spondylolisthesis and mechanical low back pain.

 

The compensation judge concluded that the employee had sustained a Gillette-type injury on July 19, 1994, and had been temporarily totally disabled from July 22, 1994, through July 25, 1994.  She also concluded, however, that the injury was merely a temporary aggravation of the employee=s preexisting condition, ending Aby July 25, 1994 when Dr. Kramer allowed him to return to work.@  In her memorandum, the judge wrote that, Ain hindsight, Dr. Robrock found the employee=s low back condition related to his work lifting tires and on the A-post job@; however, she  went on to note that A[i]t does not appear that Dr. Robrock was aware that the employee only worked on the tire mount job for at most three weeks,@ and that A[i]t is not clear if the doctor knew when or how long [the employee] worked on the A-post job.@  For these reasons, the judge found Dr. Robrock=s causation opinion unpersuasive.^[14]

 

On appeal, the employee contests the judge=s finding that the July 19, 1994, injury was merely temporary, noting that the employee had little or no low back treatment for the two years prior to July 19, 1994, but had continued intermittent low back symptoms and treatment thereafter.  However, as the compensation judge pointed out, the employee was returned to the same job on July 25, 1994, without any additional restrictions on his activities, supporting the conclusion that his low back condition had returned to baseline by that date.  Furthermore, Dr. Friedland reported that the employee=s low back condition was entirely the result of a Adevelopmental condition that occurs during childhood.@  Therefore, while the evidence on the issue is not extensive, we cannot say that the compensation judge erred in finding that the July 19, 1994, injury was merely a temporary aggravation of the employee=s underlying condition.

 

September 1996 Shoulder Injury

 

The compensation judge concluded that the employee had sustained a work-related Gillette-type bilateral shoulder injury on September 4, 1996, finding, in addition, that the employee has Amild bilateral shoulder impingement syndrome.@  The judge=s decision as to the nature of the employee=s shoulder condition is supported by the opinion of several physicians, including Dr. Friedland, the employer=s independent examiner.  On the issue of causation, the judge=s finding of work-relatedness is supported in part by the opinion of Dr. Kahn, who was head of the employer=s in-house medical department from early 1992 through early 1997.

 

In their appeal from the compensation judge=s decision as to this injury, the employer argues initially that Dr. Kahn lacked Athe expertise to render a causation opinion@ because she Ais a dermatologist by trade, and is not board certified in orthopedics or occupational medicine,@ and because Ashe has not had a residency in orthopedics, has never practiced in the area of orthopedics, and does not have any special training in orthopedics.@  This argument is specious.  Dr. Kahn was head of the employer=s own medical department for five years, treating work-related and nonwork-related injuries as well as evaluating jobs to determine whether those jobs were compatible with injured workers= limitations.  Dr. Kahn also had substantial previous occupational medicine experience in Nova Scotia and while working for Disney World and Delta Airlines.  Clearly this experience gave Dr. Kahn any necessary Aexpertise@ to offer an opinion as to causation of the employee=s shoulder condition.

 

The employer also argues that Dr. Kahn=s opinion should be disregarded or rejected because the doctor did not take a complete medical history or personally examine the employee=s shoulders.  However, these facts go to weight and were for the compensation judge to evaluate.

 

Finally, the employer challenges Dr. Kahn=s opinion on grounds that the doctor attributed the injury to the employee=s work on the roof assembly job, whereas the employee was actually working on the floor pan job just prior to September 4, 1996.  However, Dr. Kahn testified that she was familiar with both the floor pan job and the roof assembly job, that both jobs required lifting and reaching, and that the employee=s jobs that required lifting and reaching substantially contributed to the employee=s shoulder condition.

 

The compensation judge did not specifically cite to Dr. Kahn=s opinion in explaining her decision as to the employee=s shoulder injury claims.  However, that opinion, together with the employee=s testimony about his work as well as entries in contemporaneous medical reports,^[15] reasonably supports the judge=s finding of a Gillette-type shoulder injury effective September 4, 1996.^[16]  We therefore affirm that decision.

 

Weekly Wage - September 4, 1996, Injury

 

Using the statutory twenty-six-week averaging formula, see Minn. Stat. ' 176.011, subd. 3,^[17] the compensation judge concluded that the employee=s weekly wage on September 4, 1996, was $891.28.  On appeal, the employer contends that the compensation judge erred in her calculation by including the employee=s pay from the employer=s annual paid two-week July plant shutdown in determining the employee=s total pay during the relevant pre-injury period, while at the same time excluding the shutdown period when determining days worked.  However, this precise issue was addressed by the Minnesota Supreme Court in Fougner v. Boise Cascade Corp., 460 N.W.2d 1, 43 W.C.D. 286 (Minn. 1990), where the court wrote as follows:

 

The employer has asked this court to rule . . . that if vacation and holiday pay are to be included, then the corresponding number of vacation days and holidays taken should also be included in the wage basis calculation; but that would appear to be contrary to the plain language of the statute.  Although including vacation and holiday pay without also including the corresponding vacation days and holidays in the calculation seems to be anomaly, that is a question more properly addressed by the legislature.

 

Id. at 2 n.1, 43 W.C.D. at 288 n.1.  The judge=s wage calculation, consistent with Fougner, is therefore affirmed.

 

Notice of Injury

 

While finding that the employee sustained a temporary low back injury on July 19, 1994, and a bilateral shoulder injury on September 4, 1996, the judge nevertheless denied the employee any benefits, concluding that A[t]he employee did not give notice of an injury to his employer.@  The employee appeals, arguing that substantial evidence does not support the judge=s decision denying benefits on this basis.  After review of the entire record, we agree.

 

According to representatives of the employer who testified at hearing, workers at the employer=s St. Paul plant are required by union contract and/or plant rules to report work-related injuries to the employer=s workers= compensation department.  In the present case, the record reasonably establishes that the employee failed to comply with this notice policy with regard to either the July 19, 1994, low back injury or the September 4, 1996, bilateral shoulder injury; even the employee essentially agrees that he did not report these injuries to the employer=s workers= compensation department.  However, the inquiry does not end there.

 

The employer=s in-house medical department began keeping computerized records in about 1992, in order to satisfy OSHA requirements.  Each employee visit to the department is coded either AO@ for occupational or AP@ for personal, in that the medical department sees workers for work injuries and nonwork injuries alike.  The computerized records also contain restrictions set by a worker=s personal physician and notations regarding notifications received from those physicians, together with certain diagnoses and/or brief treatment notes.  According to Dr. Kahn, medical department personnel enter AO@ and AP@ designations based on what a worker tells them.  For example,

 

[W]hen Mr. Philip reported the injury, he felt it was an occupational injury and, therefore, the nurses are supposed to enter it as occupational, they are not supposed to change it other than if I would diagnose it otherwise, or his outside primary physician would diagnose it.  That=s an OSHA regulation.^[[18]]

 

Examples under the AP@ designation in the employee=s medical department records include entries for diverticulitis and a kidney stone.  Entries for carpal tunnel syndrome, for which the employer and insurer admitted notice, are marked with an AO.@  Yet other entries, in conjunction with certain other evidence, establish that the employer had at least Ainquiry notice@ of the employee=s July 1994 and September 1996 injuries for purposes of the notice requirements contained in Minn. Stat. ' 176.141.^[19]

 

As previously indicated, the employee sought treatment from his personal physicians for low back symptoms on July 14 and July 19, 1994.  Dr. Kramer completed a Ford AMedical Leave Authorization for Hourly Employees,@ indicating that the employee was unable to work beginning on July 22, 1994, because he Areported increased pain and inability to work due to low back [and] leg pain.@  On that same form, Dr. Kramer checked a blank indicating that the employee=s disability was Adue to his/her occupation.@  The employer=s medical department records from July 26, 1994, establish that the department received a letter from the employee=s personal physician stating that the employee Ahas reported increased pain and inability to work due to low back and leg pain,@ language identical to Dr. Kramer=s, and that the employee had been disabled by his personal physician from July 22, 1994, to July 25, 1994.  This computer entry also contains a diagnosis of Asprain/strain lumbar - sacral@ and is designated AO@ in the coding.  This evidence, taken together, compels the conclusion that Ford medical department personnel had Aknowledge of such information as would put a reasonable man on inquiry@ as to the existence of a work injury for purposes of the Aactual knowledge@ requirements of Minn. Stat. ' 176.141.  Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867, 40 W.C.D. 270, 273 (Minn. 1987), quoting Pojanowski v. Hart, 288 Minn. 77, 81, 178 N.W.2d 913, 916, 25 W.C.D. 206, 209 (1970).  That is, the medical department had not only information as to the employee=s disability but information connecting work activity with that disability.  See id.

 

The evidence as to the employee=s September 1996 shoulder injury is substantially similar.  In his September 4, 1996, report, Dr. Donahue wrote in part as follows:  APreviously [the employee] was doing the floor pan job which involves lifting up to 48 pounds and work with the arms over the shoulder level.  He has complaints of bilateral shoulder pain and stiffness, frequent paresthesias in both hands, especially lifting and gripping.@  Diagnosing several conditions, including A[b]ilateral shoulder stiffness, probable degenerative changes of the rotator cuffs,@ Dr. Donahue advised that the employee should Aremain on restrictions for carpal tunnel and for shoulder symptoms,@ including, for the first time, Ano work with arms elevated over shoulder level.@  Dr. Donahue=s report is marked Acc:  Dr. Kahn, Ford Motor Company.@  In addition, Dr. Donahue=s AWork/Activity Status@ form from that same date sets the same restrictions for carpal tunnel syndrome and Ashoulder stiffness.@  A September 13, 1996, entry in the employer=s in-house medical department records, coded AO@ for occupational and describing the employee=s condition as Ainjury other,@ indicates that that department had received a notification letter from the employee=s personal medical doctor, containing Dr. Donahue=s restrictions, and that the employee had spoken to Dr. Kahn about those restrictions, including the limitation on work above shoulder level.  It is clear that at least one of Dr. Donahue=s two September 1996 reports was received by the medical department by September 13, 1996, and that evidence, in conjunction with the AO@ coding, is again sufficient to establish that the Ford medical department had at least inquiry notice with regard to an alleged work-related shoulder condition as of September 13, 1996.^[20]

 

In response to the employee=s appeal on this issue, the employer argues initially that the issue was not whether the employer had Aactual knowledge@ but whether the employee himself gave the employer statutorily adequate notice.  We reject this argument.  The hearing record does indicate generally that the employer was denying Anotice@ of both injuries, but a notice defense necessarily implies a lack of actual knowledge, as well, and we cannot conceive of denying compensation on notice grounds in cases in which the record establishes timely actual knowledge.

 

The employer also appears to suggest that notice to or knowledge by Ford=s medical department is not determinative, because the union contract requires Ford workers to report work injuries to Ford=s workers= compensation department.^[21]  This argument is also unpersuasive.  Certainly an employer is entitled to set rules for reporting work injuries, and it may enforce those rules through disciplinary procedures, perhaps even termination.  However, an employer=s rules as to notice are entirely irrelevant to the issue of whether the requirements of the statute have been satisfied.  We would also note that the record here establishes that Ford=s workers= compensation department is located virtually right next to their in-house medical department, and Ford representatives acknowledged that the workers= compensation department has the authority to access all computerized medical department records coded with an AO,@ for occupational.  The fact that the workers= compensation department has no procedure in place to check or follow-up on such entries is something for the employer to rectify, if it so chooses, but it has no bearing on the parties= rights and obligations under the workers= compensation act.

 

It is true, as the employer points out, that the employee testified that he could not remember exactly what he told his supervisor, or the plant medical department, about the cause of his low back and shoulder symptoms.  The fact remains, however, that the employer=s in-house medical department records, coded with AO,@ in conjunction with the reports received by them from the employee=s private physicians, establish that the employer had timely Aactual knowledge@ of injury pursuant to Minn. Stat. ' 176.141.  We therefore reverse the judge=s decision to the contrary.

 

Alleged March 11, 1998, Aggravation

 

The employee alleged that he aggravated his low back and shoulder conditions on March 11, 1998, during his brief attempt to perform the black-out job for the second time.  Ford=s in-house medical records for March 12, 1998, indicate that the employee was given nonprescription pain medication for complaints of pain on the left side of his low back.^[22] However, when he was seen in urgent care on that same date, the employee complained only of exposure to noxious fumes.  Then, in subsequent treatment records, the employee indicated that he had aggravated his low back and shoulders at work on March 11, 1998.

 

The compensation judge determined that the employee had not sustained an aggravation/injury on March 11, 1998, explaining in her memorandum as follows:

 

The last injury the employee claimed was that he sustained an aggravation of his preexisting low back condition and his shoulders on March 11, 1998.  Mr. Philip=s complaint on the date of injury was that he had been exposed to fumes which left him feeling dizzy.  He reported that he wrenched his back when he reached over a truck.  He also reported that he strained his back and shoulders when he was overcome by the fumes.  I did not find the employee=s testimony credible.  He appeared to overstate the effects of each incident he had at work.  Mr. Philip=s treatment for his low back and shoulders and any restrictions related to these conditions did not change after the March 11, 1998 incident.  The employee has not shown by a preponderance of the credible evidence that he sustained an injury or aggravation as a result of the March 11, 1998 incident.

 

In his appeal from the judge=s decision on this issue, the employee points to various medical records and reports subsequent to March 11, 1998, that support his theory of causation.  However, as can be seen from the judge=s explanation, quoted above, the judge based her decision in large part on her assessment of the employee=s credibility, an assessment uniquely within the province of the judge.^[23]  See, e.g. Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 41 W.C.D. 79 (Minn. 1988).  Therefore, notwithstanding certain medical support for the employee=s claim, we find no reasonable grounds to reverse the judge=s decision as to the occurrence of the alleged March 11, 1998, injury.

 

MMI

 

MMI is defined as the Adate after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability . . . .@  Minn. Stat. ' 176.011, subd. 25.  A decision on the issue is one of ultimate fact.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989).  In the present case, the compensation judge concluded that the employee had reached MMI on August 18, 1998, effective with service of Dr. Friedland's report.^[24]

 

In view of our decision on other issues, the only work-related injuries relevant to MMI are the employee=s July 19, 1994, low back injury and the September 4, 1996, bilateral shoulder injury.  The July 19, 1994, low back injury drops out of the equation because of the judge=s finding, which we have affirmed, that the injury was merely temporary, ending by July 25, 1994.  See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).  As for the employee=s bilateral shoulder condition, there is no evidence of any new planned treatment or that any medical provider expects any significant improvement in that condition.  As such, the judge=s MMI decision is supported by substantial evidence in the record as a whole, and we affirm it.

 

Temporary Total Disability; Job Search; Cooperation with Rehabilitation

 

The compensation judge found that the employee had sustained a work-related low back aggravation on July 19, 1994, and that he had been Atemporarily totally disabled from July 22, 1994 through July 25, 1994 as a result of the temporary aggravation.@  The employer did not appeal from these findings, and, because we have reversed the judge=s finding as to lack of notice of this injury, the employee is entitled to temporary total disability benefits for this period.

 

The more difficult issue concerns the employee=s claim for temporary total disability benefits after March 11, 1998, his last day of work for the employer.  We have affirmed the judge=s finding of a work-related shoulder injury on September 4, 1996, in the nature of mild impingement syndrome, and we have reversed her decision as to notice of injury, meaning that benefits for this injury are not foreclosed by Minn. Stat. ' 176.141.  We have also affirmed the judge=s decision that the employee reached MMI effective August 18, 1998.  As such, the period of inquiry, for temporary total disability benefits, is from March 12, 1998, through November 16, 1998, the 90th day following MMI.  See Minn. Stat. ' 176.101, subd. 1(j).

 

It is evident from the record that the employee=s restriction on reaching is related at least in part to his shoulder condition and that that restriction adversely affects his ability to perform various jobs at the employer.  In her alternative findings,^[25] however, the judge concluded that, while the employee had cooperated with the rehabilitation assistance provided by Mr. Lawson, the employee had nevertheless failed to diligently search for work by refusing to extend his job search outside of the employer.  On appeal, the employee argues that the judge erred in concluding that the employee was required to look for work outside of Ford.  The employer, on the other hand, argues that the judge erred in concluding that the employee had cooperated with rehabilitation efforts.  After review of the record, we conclude that the employee is entitled to wage loss benefits for part, but not all, of the period at issue.

 

The employee went off work March 11/12, 1998, contacted the state department of vocational rehabilitation services in June of 1998, and began receiving rehabilitation assistance through that agency in early August of 1998, when QRC Lawson conducted a rehabilitation consultation.  The employee=s rehabilitation plan, executed in early September of 1998, called for a job search only at the employer, with the goal of rehabilitation being to return the employee to employment there.  Throughout his time off work after March 11, 1998, the employee checked the employer=s bid board and called into the employer periodically to check for available jobs.  QRC Lawson testified that the employee had cooperated with rehabilitation efforts, and, ordinarily, when an employee has rehabilitation assistance, the issue with regard to wage loss benefits is not so much whether the employee conducted a diligent job search as whether he or she cooperated with rehabilitation.^[26]   See, e.g., Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).  Therefore, in the usual case, the compensation judge=s finding of cooperation, if affirmed, might well warrant an award of temporary total disability benefits after March 11, 1998, through the end of 90 days post MMI.  There are, however, other facts peculiar to this case that influence the analysis and result.

 

By letter dated April 9, 1998, the employer=s workers= compensation department notified the employee as follows:

 

This letter is in regard to your workers= compensation claim and recent lost time.

 

The Workers= Compensation Department has been notified that the Labor Relations/Medical Department has placed you on a Ano work available@ leave due to your restrictions.  It appears that Ford Motor Company will not have work available within your restrictions in the foreseeable future.  If you intend on pursuing your workers= compensation claim, you are required to search for work within your restrictions under workers= compensation rules.  Even though we have denied liability for your workers= compensation claim, rehabilitation and job search assistance may be available through the Department of Labor and Industry=s Vocational Rehabilitation Unit.  You can reach them by calling (612) 297-1114 or 1-800-342-5334.  Please be advised that acceptance of a job outside of Ford Motor Company does not affect your recall rights.

 

If you have any questions, feel free to contact our office at the numbers below.

 

(Emphasis added.)  QRC Lawson testified that he was not aware that Ford had sent this letter to the employee and that he would have devised a different rehabilitation plan had he known that the employee was unlikely to return to work for Ford.  He further acknowledged that the employee would probably have found some kind of work outside of Ford had he looked for it.  The employee testified that he would be willing to look for work and/or work outside of Ford only if he could earn what he had been earning there.

 

The employee had a reasonable expectation of being placed in suitable work by Ford for at least some period after going on Ano work available status@ on March 11, 1998, especially since the employer had always found him work within his restrictions in the past.  Therefore, we conclude that the judge erred in imposing outside job search obligations on the employee from March 12, 1998, through April 9, 1998, when he received Ford=s letter, and we find the employee entitled to temporary total disability benefits during this period.^[27]  However, the judge did not err in determining that the employee had acted unreasonably in continuing to limit his job search, after receiving the April 9, 1998, letter, and in failing to tell his QRC about that communication from the employer.  This, in combination with the QRC=s testimony about available work, reasonably supports the judge=s implicit conclusion that the employee did not establish total disability after April 9, 1998, and, on this basis, we affirm the judge=s denial of temporary total disability benefits from April 9, 1998, through November 16, 1998.^[28]

 

Medical and Rehabilitation Benefits

 

The parties= dispute over medical and rehabilitation benefits appears predicated primarily on the disputes over primary liability and/or notice of injury.  That is, it appears that the parties assumed that medical expenses and rehabilitation benefits would follow from the judge=s findings as to the compensability of the claimed injuries.  Therefore, to clarify, the employer and insurer are liable for medical expenses related to the July 19, 1994, temporary low back injury, for medical expenses for shoulder treatment from and after September 4, 1996, and for rehabilitation services provided through the date of hearing.  To the extent that the parties continue to dispute Aqualified employee@ status for ongoing rehabilitation purposes, the parties have the option of initiating additional proceedings.  At this point, however, especially given the arguments in the briefs of both parties, we see no reason to remand this case to the compensation judge.  The employer and insurer are liable for benefits in accordance with this opinion.