OPAL R. ROBINSON, Employee, v. NORTHWEST AIRLINES and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and MINNEAPOLIS CLINIC OF NEUROLOGY and THE MANSFIELD ASSOCS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 18, 2000

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION.  Where the judge acknowledged the IME=s opinion that the employee=s low back injury was only a temporary aggravation of a preexisting condition but nevertheless concluded contrary to that opinion based on the employee=s own expressly credited testimony and a review of the employee=s medical records but without a supporting detailed medical opinion from the employee=s treating doctors, the compensation judge did not err as a matter of law by "ignoring" uncontroverted medical testimony.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where they were reasonable conclusions in light of the evidence, the compensation judge=s findings that the employee=s admitted work injuries were not yet resolved by the time of her claim, that the employee was not employed during the period of her claim, that the employee was not off work during that period for conditions unrelated to her admitted injuries, and that the employee=s wage loss during that period was not due solely to a labor situation rather than to the employee=s physical condition were not clearly erroneous and unsupported by substantial evidence, and, given also evidence of record that the employee=s admitted work-related injuries were substantial contributing factors in her ongoing disability, the judge=s award of temporary total disability benefits was affirmed.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Where the nature and continuing disabling effect of the employee=s right arm symptoms and previous right arm work injury were issues reasonably in dispute at the hearing, the compensation judge=s award of payment for medical treatment exclusive of treatment for the employee=s neck but inclusive of a cervical MRI intended to rule out neck problems as the source of the employee=s hand symptoms was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employer and insurer had expressly conceded only a right elbow injury.

 

Affirmed.

 

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

Compensation Judge:  Nancy Olson

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's award of various benefits based on findings that the employee=s current low back and right arm conditions and certain past and proposed treatments for them are causally related to the employee=s work injuries of May 8, 1997, and June 24, 1995, respectively.  We affirm.

 

BACKGROUND

 

On June 24, 1995, Opal Robinson sustained a work-related injury to her right arm in the course of her employment as a part-time baggage handler with Northwest Airlines, a physically demanding job that required her to perform heavy lifting.  At the time of her injury, Ms. Robinson [the employee] was forty years old and was earning a weekly wage of $200.79.  Dr. John Kipp at the Airport Medical Clinic diagnosed a myoligamentous right elbow strain and released the employee to work with restrictions.  By July 5, 1995, Dr. Kipp had revised his diagnosis to right arm strain or low grade epicondylitis and relaxed the employee=s restrictions.  The employee returned to work at her job with Northwest Airlines [the employer] without restrictions in August of that year, but her arm pain continued, and Dr. Kipp prescribed physical therapy and added medications.  On September 11, 1995, Dr. Kipp indicated that the employee was Adoing very well@ and had reached MMI with no continuing disability.  The employee subsequently worked unrestricted at her job until early May 1997.  On May 8, 1997, she sustained also a work-related injury to her low back, following which she was temporarily unable to stand up.  At the time of this second injury, the employee was forty-two years old and was earning a weekly wage of $220.00.  The employer ultimately admitted liability for both injuries and paid consequent benefits.

 

Following her May 8, 1997, low back injury, the employee commenced treatment with occupational medicine specialist Dr. Thomas Jetzer, for pain in her low back and also for continuing pain in her right arm.  In his report on that same date, Dr. Jetzer diagnosed right lateral epicondylitis and acute regional lower back strain, noting Adoubt disc injury or radiculopathy although there is some suggestion of some possible nerve root contusion.@  In his report the following day, Dr. Jetzer diagnosed work-related right tennis elbow, work-related right regional lower back strain, and a history of nonwork-related neck discomfort.  Dr. Jetzer restricted the employee to light duty and prescribed some medications and physical therapy.  A few days later, on May 13, 1997, the doctor diagnosed resolving right tennis elbow and mild right lower back strain, with intentions to rule out radiculitis.  Two days after that, Dr. Jetzer reported that the employee=s Aelbow seems to be quite mild in terms of symptoms,@ while A[t]he rest of her upper extremity examination is negative.@  Dr. Jetzer referred the employee for a lumbar MRI scan, which was conducted May 16, 1997, and revealed a moderately advanced degenerative disc disease at L5-S1, with a right-sided full-thickness annular tear and associated annular bulging causing mild impingement on the right S1 nerve root.

 

Apparently beginning late May 1997, the employee commenced treatment with Dr. Dennis Hines at the Bloomington-Lake Clinic, who diagnosed medial and lateral epicondylitis, brachioradialis of the right elbow, and L5-S1 lumbar disc syndrome with mild impingement of the nerve rootlet.  Dr. Hines ordered an EMG study of the ulnar nerve across the right elbow, which revealed some slowness in conduction velocity across the elbow consistent with mild injury but no evidence of significant damage.  On October 23, 1997, the employee was examined also by orthopedic surgeon Dr. John Sherman, who concluded that the employee=s symptoms were Amost likely due to degenerative disc disease at the L5-S1 level.@  Dr. Sherman recommended that the employee either Acontinue as she has with [a] good overall conditioning program@ or Aproceed with discograms to further delineate the source of her symptoms.@  The doctor indicated that, should the discograms result in reproduction of pain at the L5-S1 level, Athen she may be a potential candidate for a fusion at that level.@

 

After being taken off work by Dr. Hines for a week in early November 1997 and then making a brief attempt to return to work thereafter, the employee was taken off work entirely on December 3, 1997, and referred for care by neurologist Dr. Jack Hubbard.  After examining the employee on December 31, 1997, Dr. Hubbard prescribed myofascial trigger point therapy.  When the employee=s symptoms did not improve significantly by January 28, 1998, Dr. Hubbard recommended a pain management program, and by March 10, 1998, the employee=s condition was improving.  On April 8, 1998, the employee underwent a functional capacities evaluation, and in June and July she underwent several acupuncture treatments with Dr. Jessica Heiring.  Later in July the employee returned to work for the employer in a light duty job writing travel credit vouchers for passengers in the employer=s Revenue Management Support department.

 

The employee continued in her Revenue Management job until August 18, 1998, when she returned to see Dr. Hubbard with complaints of neck and shoulder discomfort and numbness into the palm and fourth and fifth fingers of her right hand.  Dr. Hubbard restricted the employee again from working, indicating in his report on that date that he was recommending an MRI of the employee=s cervical spine, Ato rule out the possibility of a C8 nerve root impingement,@ and a return to every-other-day myofacial therapy, because the employee had had a Aworsening@ of her symptoms.  The employee was off work for about four weeks and then was released by Dr. Hubbard to return to work again in September of 1998.  By this time, however, the employee had evidently been informed by letter from the employer that her job was no longer available to her due to a labor strike that had begun in her absence, and this information was evidently reiterated when she called the Revenue Management Support department specifically to inform it of her availability to go back to work writing travel vouchers.  In a progress note about that same time, on September 24, 1998, Dr. Hubbard indicated that the employee Acontinues to experience a burning pain into her right hand, particularly in her medial forearm and the 4^th and 5^th digits of her right hand,@ and that she had had Arecent difficulties with dropping of objects from her right hand and trouble with gripping of her right hand@ and continued to experience Apersistent low back pain.@  Eventually, on November 3, 1998, the employee returned to work for the employer at a temporary job doing filing work in the employer=s Labor Relations department, a job she performed evidently very successfully for about the next nine months.

 

On November 9, 1998, the employee filed a Medical Request, alleging entitlement to payment for a cervical MRI scan, as recommended by Dr. Hubbard, to rule out the possibility of a C8 radiculopathy.  On November 16, 1998, the employee filed also a Claim Petition, alleging entitlement to temporary total disability benefits continuing from August 17, 1998, consequent to a work-related injury to her back and right elbow on May 8, 1997.  On November 25, 1998, the employer and insurer filed a Medical Response, refusing to pay for the requested MRI scan on grounds that any treatment of the employee=s cervical spine was not related to her admitted low back and right elbow work injuries.  On December 2, 1998, the employer and insurer filed also an Answer to the employee=s claim petition, denying the employee=s entitlement to the benefits claimed.

 

On January 29, 1999, the employee underwent an independent medical evaluation [IME] by Dr. John Dowdle at the request of the employer and insurer.  Dr. Dowdle diagnosed a myoligamentous injury of the cervical spine, mechanical low back pain, and degenerative disc disease.  Upon conclusion of his examination, Dr. Dowdle offered the following opinions: (1) that the employee=s work injury on May 8, 1997, was a temporary aggravation of an underlying degenerative disc condition; (2) that the employee=s right elbow injury in June 1995 was also temporary in nature; (3) that the employee had not been totally disabled, was capable of light duty work, and had been so since August 1998; (4) that the employee=s medical treatments after May 1997 had been reasonable and necessary and causally related to her work May 1997 work injury for a period of three months, after which they were related only to the underlying degenerative disc condition; (5) that the employee had reached maximum medical improvement [MMI] from her May 1997 work injury three months after the injury, without need for further treatment other than enforcement of her restrictions; (6) that the employee was subject to a permanent impairment of 7% of the whole body related to her underlying condition, without causal relationship to her May 1997 temporary aggravation; and (7) that the employee could work with restrictions and was not expected to require further treatment.

 

On February 24, 1999, the employee was examined by Dr. Manuel Pinto at the Twin Cities Spine Center, who diagnosed disc disease at L5-S1 with a tear and mild bulge and ordered a discogram and a steroid injection.  On March 31, 1999, the employee underwent an MRI scan of her cervical spine, which was read to reveal no abnormalities.  By an order filed April 29, 1999, the employee=s medical request and claim petition were consolidated for purposes of hearing.  On May 26, 1999, the employee underwent the lumbar discography and therapeutic steroid injection ordered by Dr. Pinto.  The discography revealed in part abnormal disc morphology at L5-S1 and minimally abnormal disc morphology at L4-5.  Dr. Pinto saw the employee again the following day and recommended an anterior/posterior fusion with instrumentation.  By letter to the Office of Administrative Hearings filed June 16, 1999, the employee amended her claim petition to allege entitlement to compensation for permanent partial disability to 10.5% of her whole body consequent to her May 8, 1997, work injury.  On July 26, 1999, the employee filed a Rehabilitation Request, seeking rehabilitation services and requesting that the matter be consolidated with the compensation and medical issues for hearing.

 

  The employee evidently performed well in her officially temporary job doing filing work in the employer=s Labor Relations department, and the job was two or three times extended to the limits permitted under the employer=s labor contract.  The employer evidently contemplated making the position permanent for the employee, but the union refused to permit that breach of the contract, and the employee was terminated from the position on July 29, 1999.  Since that time the employee and her QRC have continued unsuccessfully to seek work for the employee only at the employer.

 

On September 24, 1999, the employee underwent another IME by Dr. Dowdle.  Dr. Dowdle reiterated most of the opinions that he had issued in his previous IME in January 1999, adding (1) that the employee had not been temporarily or totally or otherwise disabled since July 30, 1999; (2) that any medical treatment since Dr. Dowdle=s previous examination of the employee had been reasonable but unrelated to the employee=s May 8, 1997, work injury and related only to her previous Amultiple injuries to her low back and longstanding back problems,@ including injuries resulting from two motor vehicle accidents in 1984 and a falling accident in 1986^[1]; (3) that prospective surgery to relieve the employee=s back pain was a reasonable option but, again, was unrelated to the employee=s work injury; (4) that the employee had no permanent physical impairment of the cervical spine; and (5) that the employee=s prognosis was good.

 

The matter came on for hearing on October 22, 1999.  Issues at hearing included the following: (1) the sufficiency of the employee=s job search and other elements of entitlement to temporary total disability benefits from August 18 to November 2, 1998, and also continuing from July 30, 1999, as a consequence of her admitted work injuries; (2) the employee=s entitlement to compensation, with or without apportionment to a preexisting condition, for a permanent partial disability to 7% of her whole body consequent to her low back condition; (3) the employee=s entitlement to compensation, with or without apportionment to a preexisting condition, for a permanent partial disability to 3.5% of her whole body consequent to a cervical injury on June 24, 1995; (4) the employee=s entitlement to fusion surgery at L5-S1; and (5) the employee=s entitlement to various other medical treatments consequent to her work injuries.  Stipulations at hearing included the agreement that, if the employee was found to have been off work due to the effects of either her June 24, 1995, elbow injury or her May 8, 1997, low back injury, or both, the employee would be entitled to rehabilitation benefits and the employer and insurer would pay the outstanding reasonable charges.  It was also stipulated that the proposed low back fusion surgery and the past medical care for which payment was claimed, including the March 31, 1999, MRI scan, were reasonable and necessary and would be compensable by the employer and insurer if they were found to be causally related to the employee=s June 1995 and May 1997 work injuries.  The parties also stipulated that the employee has 7% permanent partial disability to the body as a whole related to her lumbar spine condition, although the employer and insurer did not concede that that permanent impairment was causally related to the employee=s May 1997 work injury.  Finally, it was also stipulated at hearing that the employee had prior permanent partial disability to 12% of the body as a whole--8% attributable to the cervical spine and 4% attributable to the low back--and the employee agreed that apportionment would be appropriate if permanent partial disability was found to be causally related to the work injuries at issue.

 

Evidence submitted at hearing included testimony from the employee and from her QRC, Laura Marion.  QRC Marion testified in part that the employee=s rehabilitation plan had always contemplated a return to work with the employer and that the employee had always been eager to return to her job and exemplary in her cooperation with rehabilitation efforts.  The employee testified in part that, about the time she was released to work by Dr. Hubbard in September of 1998, she received a letter from the employer indicating, Abecause I was still technically an E[quipment] S[ervice] E[mployee],@Athat I was on a layoff status.@^[2]  She testified that she then Acalled Revenue Management and said that I was available for work [writing travel credit vouchers], and they said, well, at this time because of the strike we won=t need you.@  It was and is the employee=s position that she was of the understanding at the time that she herself was not on strike and that she had not been terminated by the employer.

 

By Findings and Order filed November 10, 1999, the compensation judge concluded in part that the employee had failed to prove that she sustained an injury to her cervical spine at the time of her June 24, 1995, right elbow injury.  The judge did find, however, based on the employee=s medical records and testimony, that the employee had sustained a permanent aggravation of a preexisting degenerative low back condition on May 8, 1997.  The judge concluded that the employer and insurer were responsible for compensation for a 3% whole-body impairment consequent to this aggravation, representing a total 7% impairment less the 4% that the employee had conceded to be attributable to a preexisting low back condition.  The judge concluded also that the employee=s need for lumbar fusion surgery at L5-S1 was causally related to that injury, noting in particular evidence that the employee=s low back degenerative changes had not been symptomatic from 1992 to 1997 but had been symptomatic ever since May 1997.  The judge also found the employee=s other claimed medical care compensable, concluding that any portion of that care that might be attributable to the neck was at office visits where the low back and elbow were also being treated.  Although she had concluded that the employee had not sustained a work related neck injury in June of 1995, the judge found also that the employee=s March 31, 1999, cervical MRI scan was compensable as a diagnostic tool in the treatment of her June 1995 right elbow injury, to rule out cervical problems as a cause of continuing right arm symptoms.   The judge concluded in an unappealed finding that it was the employee=s understanding that she had not been terminated by the employer, and she found also that the employee had a reasonable expectation of returning to work with the employer during the periods of her claimed total disability.  Therefore, the judge concluded, any failure on the employee=s part to search for work with a different employer after July 30, 1999, did not bar her receipt of temporary total disability benefits continuing from that date.  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 employer and insurer appeal from the compensation judge=s decision on grounds that (1) the judge erred as a matter of law by ignoring uncontroverted testimony as to the nature and extent of the employee=s May 1997 low back injury, (2) the judge=s award of temporary total disability benefits was both factually unsupported by the evidence and erroneous as a matter of law, and (3) the judge=s award of medical treatment was also factually unsupported and erroneous as a matter of law.

 

Consideration of the Medical Evidence

 

Dr. Dowdle opined that the employee=s May 8, 1997, injury was only a temporary aggravation of a preexisting degenerative low back condition.  In Finding 13, the compensation judge expressly rejected that opinion, on grounds that it was Anot consistent with the fact that the employee has not yet returned to her pre-injury status.@  The employer and insurer contend that Dr. Dowdle=s opinion was uncontroverted and that therefore, in concluding as she did, the compensation judge erred as a matter of law by ignoring uncontroverted medical testimony.  We are not persuaded.

 

Although, under Flansburg v. Giza, 284 Minn. 199, 201-02, 169 N.W.2d 744, 746, 25 W.C.D. 3, 6 (1969), unopposed expert medical testimony may not be disregarded, such testimony is not necessarily conclusive upon the trier of fact.  Tuomela v. Reserve Mining Co., 299 Minn. 203, 204, 216 N.W.2d 638, 639, 27 W.C.D. 312, 313 (1974).  In her memorandum, the compensation judge expressly acknowledged Dr. Dowdle=s opinion that the employee=s May 1997 low back injury was only a temporary aggravation of a preexisting condition.  The judge nevertheless concluded, however, properly, that A[t]his was a medical and factual issue@ and found contrary to Dr. Dowdle=s opinion, explaining that, A[a]lthough the employee=s treating doctors did not present a detailed medical opinion on this point, a review of the employee=s medical records support[s] that the May 8, 1997, injury was a permanent aggravation.@  The judge went on to cite evidence from the employee=s medical records to support her position, adding, Aa detailed medical opinion on causation is not absolutely necessary to establish causation.@  The judge properly documented this assertion by citing the decision in Reimer v. Minnit Tool/M.I.T. Tool Corp., 520 N.W.2d 397, 51 W.C.D. 153 (Minn. 1994), and other decisions of this and the supreme court.  Clearly the judge did not Aignore@ the opinion of Dr. Dowdle, nor did she even base her decision only on nonmedical evidence, as she may have been entitled to.  The judge=s factual conclusion contrary to the opinion of Dr. Dowdle was not clearly erroneous as a matter of law, nor was it factually unreasonable, given other medical evidence of record and the testimony of the employee as to the intensity and pattern of her symptoms.  The judge found this testimony to be Avery persuasive,@ and that express conclusion warrants further deference.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  Therefore we will not reverse the judge=s decision on grounds that she ignored unopposed medical testimony.

 

Temporary Total Disability

 

The compensation judge found that the employee was entitled to compensation for temporary total disability from August 18 to November 2, 1998, and from July 30, 1999, through the date of hearing and continuing thereafter.  The employer and insurer contend that the judge=s award was inappropriate (a) because the employee=s June 1995 and May 1997 injuries were only temporary aggravations that preceded any period of claimed total disability by over fifteen months; (b) because the employee was working during all of the periods of alleged total disability; (c) because the employee was taken off work with the employer during the first period of alleged disability due to neck and upper extremity conditions, conditions unrelated to the employee=s low back and right arm work injuries; and (d) because any wage loss suffered by the employee during the periods alleged Arelates to the labor situation at [the employer], not [to] her physical condition.@

 

Injury Was Temporary

 

Based on the opinion of Dr. Dowdle, the employer and insurer contend that the employee=s May 1997 low back injury was only a temporary aggravation of a preexisting condition, suggesting that that aggravation had fully resolved before the August 1998 commencement of the first period for which the employee has claimed benefits.  They contend also that the employee=s June 1995 right arm injury was equally unrelated to any claimed period of disability, in that A[t]he employee acknowledged that she fully and completely recovered from [her June 1995 right arm] injury by the end of August 1995@ and A[f]urther, she was released to return to work without restrictions by that time.@   We are not persuaded.

 

We have already affirmed the judge=s decision not to rely on Dr. Dowdle=s opinion and to rely instead on contrary medical evidence and the testimony of the employee, that the employee=s low back injury in May 1997 was a new injury still ongoing in August of 1998.  With regard to the employee=s 1995 right arm injury, we find the employer and insurer=s argument misleadingly simplistic.  The medical records of Dr. Kipp suggest that the treatment and the resolution of the employee=s right arm symptoms in the summer of 1995 were quite problematic.  Although the employee was eventually released by Dr. Kipp to work without restrictions and declared by him to be at MMI, it is clear from the records of Dr. Jetzer in May of 1997 that the employee=s elbow pain was still very immediately evident and diagnosable as Awork-related@ tennis elbow.  While the condition was fairly soon thereafter found to be Aresolving@ again, the compensation judge=s apparent inference that it had never entirely disappeared does not seem to us to be unreasonable.  Nor does the employee=s tacit agreement on cross-examination that the condition Aresolved@ constitute in our opinion an admission by the employee that she Afully and completely recovered@ from the injury.  Because it was not unreasonable, we will not disturb the judge=s inference.  See Even v. Kraft, Inc., 445 N.W.2d 831, 834, 42 W.C.D. 220, 225 (Minn. 1989) ("[a]lthough the Workers' Compensation Court of Appeals is required to look at all the evidence in performing its review function, it must give due weight to the compensation judge's opportunity to judge the credibility of the witnesses and must uphold the findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn"), citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d at 59-60, 37 W.C.D. at 239-40 (Minn. 1984).

 

Employee Was Working

 

The employer and insurer contend that, according to her own testimony and to records at the Minneapolis Clinic of Neurology, the employee was working in a gift shop that she operated during all periods during which she has alleged temporary total disability.  As the employer and insurer themselves have acknowledged, however, the employee was in the process of liquidating that business as of August of 1998, when the period of her disability claim commenced.  Moreover, it was the employee=s express testimony not only that she no longer drew any income from the business but also that the business was Anot in operation@ at all anymore Abecause I can=t do the business anymore@ and that she spent only two or three hours a week at even the liquidation activities.  It was not unreasonable for the compensation judge to conclude from this evidence that the employee was not working during the period of her claim.

 

Restriction Was Related to Other Conditions

 

The employer and insurer argue that the employee was taken off work in August 1998 Abecause of the condition of her arm and shoulder,@ that Ashe never sustained an injury to her neck@ at the employer, and that Athe relevant injury to this period of wage loss, her elbow injury, had resolved approximately 2 years prior to the [period=s] commencement.@  Therefore, they argue, to any extent that the employee may have been totally disabled during this period, it was not for reasons based on her low back or elbow work injuries.  Moreover, they contend, when she was eventually released to work again by September 24, 1998, her doctor=s restrictions related solely to functions of her neck, not to functions of her low back or elbow.  Again, we are not persuaded.

 

It was the employee=s credited testimony that, when she was taken off work in August 1998, she Awas having some problems with my arm, as well as my back.  The hand intensity that [her light duty] job required was really affecting my arm and my hand.@  Moreover, in his treatment records for August 17, 1998, Dr. Hubbard indicated that the employee Acontinues to experience neck and shoulder discomfort, as well as a complaint of numbness as being predominantly into the 4^th and 5^th digits of her right hand, as well as into the hypothenar region@ (emphasis added).  It was based on these neck, shoulder, and right hand symptoms that Dr. Hubbard took the employee off work and scheduled a cervical MRI scan, to rule out a specifically cervical problem.  The scan ultimately did rule out such a cervical problem, rendering the employee=s restriction from work apparently more arm-related than neck-related.  In light of the employee=s expressly credited testimony and these records of Dr. Hubbard, it would not have been unreasonable for the compensation judge to conclude that the employee=s right arm symptoms, and so by association her June 1995 work injury, were at least as substantial a contributing factor in her restriction from work beginning August 18, 1998, as was any purported neck condition.  Nor does it appear to us, as the employer and insurer have suggested in their Reply Brief, that the employee must be claiming a Gillette-type injury to her right arm by testifying to a recurrence of right-arm symptoms in August 1998, three years after her admitted right elbow injury.  As we have noted earlier, that recurrence of right-arm symptoms was recognized and addressed in the employee=s medical records at least as early as Dr. Jetzer=s treatment in May of 1997, and we conclude that it was not unreasonable for the compensation judge to treat the employee=s claim as one related to the original injury rather than as a claim of a new injury, whether Gillette-type or specific.

 

Wage Loss Was Related to Labor Issues

 

Finally, the employer and insurer contend that, even if the employee had a work-related disability that might have impacted her ability to work during the periods of her claim, it was a strike at the employer, together with the fact that the employee limited her job search only to the employer, that left the employee unemployed during the first period of her claim.  Moreover, they contend, during the second period of her claim, Ait was the Union, not the employee=s physical condition,@ that left the employee without a work option.  Once again, we are unpersuaded.

 

As the employee has argued, case law implies that an injured employee=s entitlement to wage loss benefits is not forfeited as a result of strike activity.  See Fielding v. George A. Hormel Co., 439 N.W.2d 12, 41 W.C.D. 942 (Minn. 1989).  It is true that, if the employee has voluntarily gone out on strike, that entitlement may be temporarily suspended until such time as Ait has become demonstrable that the disability due to the work injury is the cause of the employee=s inability to find work elsewhere.@  Id., 439 N.W.2d at 14, 41 W.C.D. at 945.  However, in this case the employee=s job was apparently withdrawn by the employer as a result of the strike; the employee herself did not voluntarily go out on strike.  Nor was it unreasonable for the employee to presume that she had not been formally terminated by the employer^[3] and that, given the large turn-over of jobs at the employer,^[4] work with the employer would eventually be available again.  Therefore it was not unreasonable for the compensation judge to conclude that the employee=s failure to search for work at another employer either during or subsequent to the strike did not preclude her entitlement to benefits during either period of her claim.  See Goss v. Ford Motor Co., 55 W.C.D. 316, 327 (W.C.C.A. 1996) (where an employee has a reasonable expectation of returning to work with the employer, the employee=s claim to total disability benefits is not necessarily precluded by the employee=s failure to engage in an immediate search for other work), citing Jacobson v. Seaboard Farms, slip op. (W.C.C.A. May 6, 1996); Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995).

 

Because the judge=s conclusions on the four issues raised by the employer and insurer with regard to temporary total disability were not unreasonable, and because there is evidence in the record on which the judge could reasonably have concluded that the employee=s 1995 and 1997 work injuries were substantial contributing factors in the employee=s temporary total disability during the periods claimed, we affirm the judge=s award of temporary total disability benefits.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

Medical Treatment

 

The compensation judge awarded payment of all claimed medical expenses related to the employee=s low back, plus expenses related to the employee=s March 1999 cervical MRI scan for diagnostic purposes, but the judge excluded expenses related solely to treatment of the employee=s cervical spine.  Reiterating generally their objection to payment of any medical expenses, apparently on the causational grounds argued earlier, the employer and insurer contend specifically that the judge erred in awarding payment for the cervical MRI scan, in that A[t]here is no dispute that the employee did not sustain an injury to her cervical spine at work@ and Ano dispute that the employee=s right elbow injury resolved within two months of that June 1995 injury.@  We are not persuaded.

 

At the time of the hearing, there was a dispute as to the nature and disabling effect of the employee=s right arm symptoms and injury during the periods of disability for which benefits were being sought.  This is implicit in at least the following three elements of the judge=s decision: (1) Stipulation 2, which establishes A[t]hat, if the employee is found to have been off work due to the effects of one or both of the above injuries [the May 8, 1997, low back injury and the June 24, 1995, right arm injury], the employee would be entitled to rehabilitation benefits@; (2) Issue 1, which asks, ADid the employee sustain a cervical injury on June 24, 1995?@; and (3) the employee=s claim for temporary total disability benefits in general after August 18, 1998, when she was taken off work for symptoms that included right hand and arm symptoms in addition to neck and shoulder symptoms.  Although the employer and insurer, in Stipulation 4, expressly conceded only a right elbow injury, the employee=s right arm symptoms were still at issue in these various other regards.  Nor was it unreasonable for the compensation judge to award payment for medical treatment exclusive of treatment for the employee=s neck but inclusive of diagnostic measuresBi.e., the cervical MRI-- intended to rule out neck problems as the source of the employee=s hand symptoms.  Therefore we affirm the judge=s award of medical benefits.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.