JOYCE E. RAWLEY, Employee, v. MEDTRONIC, SELF-INSURED/ESIS, Employer/Appellant, and MEDICA/HEALTHCARE RECOVERIES, INC., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 18, 2000

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee=s doctor stated that the employee could not engage in any work activity pending carpal tunnel surgery, the compensation judge was supported by substantial evidence in awarding temporary total disability benefits until the date the doctor changed his mind and released the employee to return to work with restrictions.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Following the employee=s release to return to work, the compensation judge was supported by substantial evidence in awarding temporary total disability benefits where the employee testified that for the brief period between the release and the date of hearing she unsuccessfully looked for work and cooperated with her QRC.

 

REHABILITATION - SUBSTANTIAL EVIDENCE.  Where the employer had fired the employee and refused to reconsider her for rehire, and where the employee was under severe permanent work restrictions, the compensation judge was supported by substantial evidence in finding the employee was entitled to additional rehabilitation assistance.

 

Affirmed.

 

Determined by Wheeler, C.J., Wilson, J., and Pederson, J.

Compensation Judge:  Bradley J. Behr

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The self-insured employer, Medtronic, appeals from the compensation judge=s award of temporary total disability benefits from September 14, 1999, through the date of hearing and continuing, and his award of rehabilitation services.  We affirm.

 

BACKGROUND

 

The employee, Joyce Rawley, was first hired by the self-insured employer, Medtronic, on August 16, 1991.  On August 22, 1997, the employee sustained an admitted Gillette-type^[1] injury to her upper extremities in the nature of deQuervain=s syndrome.  At the time of the injury, the employee was 48 years of age and had a weekly wage of $348.80.

 

The employee first sought medical attention on August 26, 1997.  At that time she saw Dr. Michael Metcalf, at the Northland Clinic in Princeton, complaining of pain in both of her wrists.  She explained that she worked on production for the employer, using pliers and clippers, and that this work activity resulted in pain in her thumbs, right worse than left, and pain into her wrists.  (Jt. Exs. 1, 3.)  The employee was referred to Dr. Kurt Anderson, an orthopedist at Fairview Northland.  He prescribed splints and took the employee off work for several weeks in September 1997.  (Jt. Ex. 3.)  The self-insured employer paid temporary total disability benefits during the employee=s period of disability.

 

The employee returned to work on September 29, 1997, and was given a light-duty data entry job until January 1998, when she was off work for several months because of a bronchitis condition.  She returned to the light-duty job in March of 1998, continuing until August 17, 1998, when she had deQuervain release surgery performed by Dr. Michael Holm on her right wrist.  Following a brief period off work, during which time she received temporary total disability, she returned to her light-duty job until a second surgery was performed on her left wrist on October 26, 1998, also by Dr. Holm.  For approximately a month thereafter, the employee received temporary total disability, and on November 23, 1998, she returned to her light-duty job, which she kept until sometime in January of 1999.  Thereafter, she performed some light-duty rotating jobs which had been assigned to her following an on-site job analysis on January 13, 1999.

 

As a result of problems associated with the rotating positions, on March 29, 1999, the employee ceased working on the advice of Dr. Holm.^[2]  An EMG was performed on April 9, 1999, and was found to be normal for both upper extremities.  A functional capacity evaluation [FCE] was performed at the behest of the employee=s QRC, Kristen Peterson, on May 24-25, 1999.  On June 1, 1999, Dr. Holm reviewed the results of the FCE and issued restrictions consistent with the FCE findings.

 

On June 23, 1999, an on-site analysis of five jobs at the employer was completed.  (T. 123.)  The job descriptions were presented to Dr. Holm by the employee=s QRC on July 7, 1999.  Dr. Holm indicated that the employee could not perform these positions, as they would aggravate her bilateral problems.  He stated that he believed at that time that the employee was a candidate for carpal tunnel syndrome surgery and he released her from all work pending the surgery.  (Jt. Ex. 10.)

 

On July 21, 1999, the employee was examined by Dr. William Call at the request of the self-insured employer.  Dr. Call concluded that the employee=s symptoms were not consistent with a diagnosis of carpal tunnel syndrome.  He stated that her symptoms were Apurely subjective@ and he found no objective clinical evidence of ongoing deQuervain=s disease or carpal tunnel syndrome.  He did state that, AI anticipate that Ms. Rawley will have some ongoing symptoms, but there is no objective evidence of any damage at present.@  He further stated that upon return to work she should be seen by an occupational medical doctor familiar with the jobs at Medtronic and that Ashe might use light wrist splints or other thumb spica splints if she felt they were comfortable for her.@  He further stated that he could find no objective reason for placing any permanent restrictions on the employee=s ability to return to work.  He specifically indicated that bilateral carpal tunnel release was not necessary until such time as the employee had a positive result on EMG.  He recommended that a new EMG be performed once per year for the following two years.  (Jt. Ex. 11.)

 

Based on Dr. Call=s opinion, on August 6, 1999, the employer made a job offer to the employee.  The position made available to the employee was Amanufacturing team member.@  The duties of this job included rotating five work positions during a day.  These included the five jobs reviewed by the QRC on June 23, 1999: wave solder operator, lead trim operator, return product cleaner, packaging and 7434 tester operator.  (T. 123-25.)  On August 12, 1999, the self-insured employer filed a notice of intention to discontinue benefits based on Dr. Call=s medical opinion and the fact that the employee had been formally offered a job which was within her restrictions.  (Resp. Ex. 3.)  The employee did not formally respond to the employer=s job offer, although the QRC=s testimony and her reports indicate that the self-insured employer was notified by the QRC that the employee would be unable to accept any work until she had completed the carpal tunnel syndrome surgery recommended by Dr. Holm.^[3]  (Pet. Ex. A, report of 7/16/99.)  The issue of discontinuance came before a compensation judge in the settlement division of the Office of Administrative Hearings and an order approving the discontinuance was issued on September 22, 1999.  On September 30, 1999, the employee was terminated from employment by the employer for failure to accept the employer=s job offer.  On October 4, 1999, the employee filed an objection to discontinuance.

 

The employee returned to see Dr. Holm with her QRC on October 18, 1999.  In his letter report of that date, Dr. Holm indicated that the employee=s symptoms Awere most consistent with ulnar neuritis at the elbows.@  He withdrew his recommendation for carpal tunnel surgery Aat this time.@  He stated that whether her symptoms were related to carpal tunnel syndrome or ulnar neuritis, they were causally related to her August 26, 1997 work injury.  (Resp. Ex. 1.)  In his office notes and report of workability, Dr. Holm stated that the employee could return to work on October 19, 1999 under severe restrictions.  (Jt. Ex. 10.)

 

The matter came on for hearing before a compensation judge at the Office of Administrative Hearings on November 24, 1999, and in Findings and Order issued December 22, 1999, he awarded temporary total disability benefits from September 14 through the date of hearing, and made a finding that the employee was precluded from returning to her pre-injury position because of her restrictions and was likely to benefit from rehabilitation assistance.

 

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

 

Temporary Total Disability

 

The compensation judge awarded temporary total disability benefits from September 14, 1999 through the date of hearing.  He specifically found that the employee was credible.  (Finding 1.)  He stated that after June 1, 1999, the employee was subject to significant restrictions on her ability to use her upper extremities, based on the functional capacity evaluation and Dr. Holm=s restrictions.  (Finding 2.)  He found that until October 18, 1999, the employee was restricted from all work activity by Dr. Holm, in anticipation of recommended carpal tunnel syndrome surgery.  (Finding 3.)  He also found that after October 18, 1999, when Dr. Holm indicated that the decision to have carpal tunnel syndrome surgery was being withdrawn and that the employee was released to return to light-duty work, the employee had made a reasonably diligent job search, had cooperated with her QRC and had been unable to find work within her restrictions.  (Finding 4.)  He also found that the August 6, 1999 job offer involved substantial work activities which exceeded the employee=s restrictions as established by the functional capacity evaluation performed in May of 1999.  (Finding 5.)

 

The self-insured employer contends that the compensation judge=s decision to award temporary total disability is not supported by substantial evidence in the record and is clearly erroneous.  In that regard, it makes several contentions:  (1) the only disease process admitted to by the self-insured employer was deQuervain=s syndrome, which was temporary in nature and which had abated following the surgical procedures performed by Dr. Holm in 1998; (2) the EMG performed in April 1999 was negative for any evidence of carpal tunnel syndrome; (3) the only evidence that the employee has any difficulties are her subjective complaints of pain; (4) Dr. Holm=s opinions, other than that part of his October 18, 1999 report which supported the conclusion that carpal tunnel syndrome surgery was not necessary, lacked foundation; (5) Dr. Call=s opinion is adequately founded and provides a firm diagnosis of no work-related injury; (6) the employee refused a suitable job and pursuant to Minn. Stat. ' 176.101, subd. 1(i), was not thereafter entitled to any further temporary total disability benefits; and (7) following her release to return to work in October 1999, the employee did not engage in a reasonably diligent job search.

 

We believe there is adequate evidence in the record to support the compensation judge=s award of temporary total disability benefits.  The evidence in this case includes the employee=s testimony that she has had ongoing pain in her upper extremities associated with her work activities.  The compensation judge specifically found the employee to be credible and that finding will not be disturbed on appeal.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  In addition, Dr. Holm=s opinion of October 18, 1999, while indicating that carpal tunnel syndrome surgery may not be necessary Aat this time,@ does state that on October 18, 1999, the employee exhibited symptoms which Awere most consistent with ulnar neuritis at the elbows.@  He also indicated that the employee=s ability to work was severely restricted by her upper extremity condition, Awhether those of carpal tunnel syndrome or of ulnar neuritis.@  He stated that the employee could return to work on October 19, 1999 subject to severe restrictions, including wearing wrist braces and elbow pads and lifting only two to three-pound objects.  He also stated that all of her difficulties were causally related to her work activities at the employer.  (Resp. Ex. 1; Jt. Ex. 10, 10/18/99 office note and report of work ability.)  There is no reason to believe that Dr. Holm was not familiar with the facts related to the employee=s condition, since he had treated her since July 9, 1998 and had performed two surgeries on her upper extremities.  As a result we can find no basis to accept the self-insured employer=s argument that Dr. Holm=s opinions lacked foundation.  While Dr. Call did issue a contrary opinion with respect to the employee=s condition, finding that there were no objective signs of injury, we note that he did indicate that she may need splints or the help of an occupational medicine specialist in order for her to be accommodated in her work activities.  On this basis we find no reason to question the compensation judge=s choice of Dr. Holm=s opinion as to causation and the extent of the employee=s disability over that of Dr. Call.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Since Dr. Holm=s opinion supports the conclusion that the employee should not have been working until at least October 18, 1999, and that she was released to return to work under severe restrictions after that date, we find support for the compensation judge=s award of temporary total disability through the date of hearing.^{[4], [5]}

 

As a result, we find that there is substantial evidence in the record to support the compensation judge=s award of temporary total disability benefits and that determination is affirmed.  Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235.

 

Rehabilitation Benefits

 

We note that the compensation judge did not make a specific order with respect to rehabilitation benefits.  He did state, however, that the employee was precluded from returning to her pre-injury employer, was subject to restrictions which decreased her ability to work and was Alikely to benefit from rehabilitation assistance.@  (Finding 8.)  On appeal, the self-insured employer argues that the employee is not a qualified employee because she is not precluded from returning to her pre-injury employer because of deQuervain syndrome, the diagnosis which had been the original basis for the voluntary payment of benefits by the self-insured employer.  They contend that under the appropriate standard of review and resolution of issues raised in the notice of intention to discontinue benefits, that the compensation judge should not be permitted to consider any medical condition other than deQuervain syndrome in making his determination.  In addition, the self-insured employer argues that Dr. Call stated that the employee has no restrictions on her ability to work and that she would be able to return to her pre-injury work activity.

 

The issue before us is whether there is substantial evidence in the record to support the compensation judge=s findings that the employee has ongoing restrictions that prevent her from returning to her pre-injury employer and that she is likely to benefit from rehabilitation assistance.  The evidence in the record which supports the compensation judge=s findings includes the employee=s testimony concerning the relationship between her work activity at the various types of jobs offered by the employer in August and her upper extremity symptoms.  In addition, Dr. Holm, in his July 7, 1999 office note, specifically stated that the positions reviewed by the QRC in late June 1999 and suggested by the employer, which were subsequently offered to the employee on August 6, were outside her capabilities because they were Aall quite repetitive.@  (Jt. Ex. 10; T. 125.)  Also relevant is the employer=s apparent decision to not rehire the employee even if she could perform the tester function.  (T. 132.) With respect to the question of the appropriate diagnosis of the employee=s symptoms to be considered by the compensation judge, the judge was not precluded from considering the most recent diagnosis by Dr. Holm that the employee had either or both carpal tunnel syndrome and/or ulnar neuritis at the elbows.  The fact that the diagnosis at the time of the original admission of the injury was deQuervain=s syndrome does not preclude the compensation judge from taking into consideration new diagnoses that occur as the employee=s treatment progresses.  It was clear from the employee=s testimony that she had symptoms of pain which were associated with certain work activities, as substantiated by the functional capacity evaluation and supported by Dr. Holm=s expert opinions.  Under these circumstances, there was adequate evidence in the record to support the compensation judge=s determination that the employee would benefit from rehabilitation and at this time would not be able to return to her pre-injury employer.