TIFFANY N. SIMONSEN, Employee/Cross-Appellant, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., Employer/Appellant, and FAIRVIEW HOSP. & HEALTHCARE SERVS., MINNEAPOLIS ORTHOPAEDIC & ARTHRITIS INSTITUTE, LTD., and PARK NICOLLET CLINIC, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 29, 2000

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Where the employee=s physicians indicated there was a causal relationship between her work activities and her pain symptoms, the compensation judge was supported by substantial evidence in finding such a causal relationship existed even though the diagnostic tests were negative and there were few objective findings to support that conclusion and the self-insured employer=s medical expert did not support a causal relationship.

 

MEDICAL TREATMENT & EXPENSE - SUBSTANTIAL EVIDENCE.  Where the self-insured employer=s only defense to the reasonableness and necessity of the medical treatment was its causation argument, once that argument was rejected the compensation judge=s award of medical expenses should be affirmed.

 

TEMPORARY TOTAL DISABILITY - JOB SEARCH.  Where it was evident that the employee was going to be returning to work when the self-insured employer made certain accommodations to her work station the employee was excused from making a diligent job search while she waited for the modifications to be made.

 

REHABILITATION - CONSULTATION.  Where the self-insured employer=s only defense to a rehabilitation consultation was a primary denial of liability and where that defense was found inadequate, the compensation judge was required to approve the rehabilitation consultation performed when the employer delayed accommodating her restrictions and delayed her return to work.

 

PENALTIES.  Where the self-insured employer=s position in denying primary liability was supported by a medical expert=s opinion finding no injury and no causal relationship between the employee=s subjective symptoms and her work the compensation judge=s denial of penalties was supported by substantial evidence.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge:  Gary P. Mesna

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The self-insured employer appeals from the compensation judge=s determination that the employee=s September 21, 1998 Gillette-type^[1] injury of bilateral upper extremity overuse syndrome was causally related to her work activities, his award of temporary total disability from January 14 through June 6, 1999, and the award of payment of medical expenses.  The employee cross appeals from the compensation judge=s determination that she was not entitled to rehabilitation services and that no penalties should be awarded.  We affirm the compensation judge=s determinations with respect to causation, temporary total disability, medical expenses, some rehabilitation services and penalties, but reverse as to the employee=s entitlement to a rehabilitation consultation.

 

BACKGROUND

 

The employee, Tiffany N. Simonsen, who was born on August 23, 1973, attended the University of Minnesota as a student from 1991 through 1994.  She did not complete her studies at the University, although on the date of hearing she was several credits short of a degree in political science with a minor in Japanese.  She worked at various part-time Astudent@ jobs for the University from April 1994 until she was hired as a full-time office specialist in disability services with the employer on July 24, 1995.

 

The employee testified that in May 1996 she transferred to an office specialist position in the purchasing department where she did filing and purchasing assistant duties, which called for four to five hours of keyboarding daily.  She indicated that thereafter she had occasional problems relating to her upper extremities, which she associated with the keyboarding activities.  She stated that once a month she experienced numbness and pain in her hands and tingling in her fingers, which sensations lasted for approximately five minutes.  (T. 40-42.)  As the symptoms did not persist, she sought no medical treatment.

 

The employee continued to work for the employer in the purchasing department and in October of 1997 was promoted to a full-time purchasing assistant position, which increased the amount of keyboarding she was required to do to five to six hours per day.  The employee testified that with these additional responsibilities she noted an increase in symptoms related to her wrists and hands.  As the symptoms continued to be minor and intermittent she did not seek medical treatment.  She testified that she noticed a significant increase in difficulties with her wrists and hands as of September 21, 1998.  She continued to work, with a daily occurrence of pain, until November 5, 1998, when she first sought medical assistance for pain and numbness in her hands and wrists.  On September 21, 1998, the employee had a weekly wage of $468.40.  (T. 11.)

 

The employer initially accepted liability for the employee=s treatment and disability based on a diagnosis of bilateral carpal tunnel syndrome.  A brief period of temporary total disability was paid by the employer from December 14, 1998, through January 4, 1999.  On January 5, 1999, the employee returned to work with restrictions.  The employee testified that from January 5 through January 13, 1999, she did little actual work activity because her supervisor had not received instructions on how to accommodate her restrictions.  (T. 56.)  She indicated that on January 14, 1999, she reported to work in the human resources department to do filing.  She was unable to work because of her pain, and left at 10:30 a.m.  (T. 58.)  In early February 1999, an ergonomic evaluation was done of the employee=s work station by the employer.  The evaluation recommended a new chair, arm support, voice recognition software and a foot mouse.  (Ex. M; T. 68.)  The employee initially was led to believe that these changes would be accomplished within one to two months.  (T. 73.)  She was able to return to work on June 7, 1999, after the employer had installed voice-recognition software and made other modifications to her working environment to accommodate her restrictions.

 

The employee was seen by a nurse practitioner at her primary health service, Fairview Uptown Clinic, on November 5, 1998.  The employee was then seen by Dr. James Anderson, at the employer=s direction, at Fairview Healthwork.  He approved a referral to the Fairview Hand Center and scheduled the employee for an EMG.  She was evaluated and treated at the Hand Clinic from November 12 through December 3.  The employee saw Dr. David Bucher on December 14 and he removed the employee from work for three weeks.  (T. 54.)  Subsequently, Dr. Bucher opined that the employee=s symptoms were caused by her work activity.  (Ex. C, report of 4/14/99.)  On December 16, the employee had an EMG performed on both upper extremities, which was determined to be negative.  (Ex. I.)  Dr. Bucher approved a consultation by orthopedic specialist Dr. Douglas Becker, who examined the employee on December 21, 1999.  He diagnosed an overuse syndrome caused by her work activity and indicated that she could return to work with restrictions.  (Exs. A, E.)  Later, in a report dated June 7, 1999, Dr. Becker reiterated his earlier opinion that the employee=s symptoms were the result of her work activities.  (Ex. A.)  Subsequently, on January 4, the employee was referred to an upper extremity specialist, Dr. William Call, who indicated that, as a result of the normal EMG, the employee=s condition was not amenable to surgical treatment.  In an injury report form dated February 3, 1999, Dr. Call indicated that he believed the employee=s symptoms were related to her work activities.  (Ex. B.)  In his office notes he stated that his opinion was primarily based on the history given by the employee.  (Ex. F.)  Dr. Call referred the employee to Dr. Constance Pries, an occupational medical specialist, on January 8, 1999.  In her work ability reports of January 15, February 3 and 26, and a report dated February 12, 1999, Dr. Pries indicated that the employee=s condition was due to overuse of her upper extremities and was related to her work activities.  (Exs. D and H.)  Dr. Pries ordered a cervical MRI which proved to be negative.  In a later office note, dated April 8, 1999, Dr. Pries stated that the etiology of the employee=s symptoms was Aunclear.@  (Ex. H.)

 

On February 16, 1999, the self-insured employer served a notice of primary denial on the employee, in which it stated as follows:

 

Originally you were diagnosed with bilateral carpal tunnel syndrome.  Further medical documentation has indicated a different diagnosis and we have asked for clarification from your treating physicians.  Diagnostic testing, i.e., MRI and EMG, were both normal.  Medical documentation also supports no improvement in your symptoms even though you are currently not working.  Please be advised that all payments made to-date have been paid under mistake in fact.  It is our opinion at this time, that your condition is non-occupational.  (Ex. 4.)

 

On March 26, 1999 the employee filed a claim petition seeking payment of temporary total disability benefits after January 14, 1999, payment for medical expenses and for the rehabilitation services of QRC David N. Mickelson.

 

During the period between January 14 and June 6, Dr. Pries was the primary coordinator of the employee=s treatment.  (T. 63.)  Under her care, the employee=s symptoms improved, decreasing faster on the left than on the right.  (Ex. H.)  By the time the employee returned to work on June 7, she was not wearing a splint on her left arm and was only using a partial one on the right.  (T. 63-4.)

 

On June 23, 1999 the employee was examined at the request of the self-insured employer by orthopedic surgeon Dr. Chris Tountas.  At the time of that examination the employee complained only of some soreness in the left hand and wrist at the end of the day.  She gave a history of no numbness or tingling on the left for two months.  She described pain in the right upper extremity primarily located over the volar distal aspect of the right forearm.  The employee indicated that she still had some difficulty with flossing her teeth, doing housework and yard work and cutting her food.  She had returned to work at the University of Minnesota on June 8, working full time, using voice recognition software and a foot mouse for her computer.  Dr. Tountas indicated that his physical examination was negative for any objective findings and there was no basis for a diagnosis of any condition involving the employee=s upper extremities.  He stated that there was nothing to support the work-related etiology of the employee=s subjective complaints and he thought that there was a significant element of functional overlay or somatoform disorder which had and was causing the employee=s complaints of pain.  He further stated that the employee had been able to work without restrictions during the period of her unemployment from January until June and that the medical treatment she had received was not necessitated by any work activity.  On August 4, 1999, after having reviewed the April 1999 report of Dr. Bucher and the June 1999 report of Dr. Becker, both of which indicated that the employee=s condition was related to her work activities, Dr. Tountas pointed out that neither doctor had substantiated any significant objective findings and that their opinions relative to causation, diagnosis, treatment and permanency were without foundation.  (ER Ex. 1.)

 

The matter came on for hearing before a compensation judge at the Office of Administrative Hearings on July 27, 1999.  In his Findings and Order, issued September 10, 1999, the compensation judge determined that the employee=s bilateral hand and wrist difficulties were a Gillette-type injury arising out of her work activities for the self-insured employer.  He found that the medical treatment the employee had received was reasonable and necessary.  He also awarded temporary total disability benefits for the period January 14, 1999 through June 6, 1999.  The compensation judge denied the employee=s claim for entitlement to rehabilitation services, finding that the employee was not a Aqualified employee@ because she was expected to return to work with her date-of-injury employer.  He refused to award penalties against the self-insured employer for its denial of primary liability.  The self-insured employer appealed and the employee cross appealed.

 

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

 

Causation

 

The compensation judge stated that as a result of the employee=s work activities, she developed a Gillette-type injury to her upper extremities, specifically Aan overuse syndrome.@  (Finding 4.)  In his memorandum, the compensation judge further stated:

 

The Court is persuaded by the opinions of Drs. Becker, Bucher, Call, and Pries, that the employee=s symptoms are related to her work activity.  The Court is not persuaded by the opinion of Dr. Tountas, who appears to believe that unless there are objective findings there is nothing physically wrong and that all of her problems are in her head.  The Court is also not persuaded by the videotaped surveillance that the employee is exaggerating or misrepresenting her disability, including her ability to drive.  The videotape did not show any particularly inconsistent activity by the employee or that she drove significantly further than she claimed that she was capable of driving.  Considering all of the evidence in this case, the Court is persuaded that the employee has a physical injury to her upper extremities for which her work activities was [sic] a substantial contributing cause.

 

On the issue of the employee=s credibility concerning whether she had a prior wrist problem in 1992 that was related to the difficulties she developed in 1998, the court made the following observations in its memorandum:

 

The Court is concerned that the employee did not always reveal that she had prior wrist problems in 1992.  Her lack of candor casts some doubt on her credibility.  Nevertheless, the Court does not find that this lack of candor is enough to defeat her claim.  In other respects the Court found her to be credible.  Moreover, there is little to indicate that the upper extremity problems that she had in 1998 were related to the prior condition, for example, there is little evidence of ongoing symptoms between 1992 and 1996.  Even if the recent upper extremity problems were related in some way to the 1992 problems, the Court would still find that the work activity in the interim was a substantial contributing cause.

 

On appeal, the principal argument put forth by the self-insured employer is that the compensation judge=s decision is clearly erroneous because he relied on medical opinions which either did not clearly state that there was a causal relationship between the work activities and the employee=s difficulties or that were based on inadequate foundation. 

 

With respect to the first argument, we have reviewed the opinions of the physicians relied on by the compensation judge and find that a number of them indicate, either in the form of their work ability reports or in narrative comments in reports or office notes, that the work activity engaged in by the employee, namely many hours of keyboarding for several years prior to September 21, 1998, resulted in an overuse syndrome which caused the employee=s symptoms of pain and numbness in her hands and wrists.  The compensation judge was reasonable in interpreting these reports and office notices from these physicians as supporting the conclusion that there was a causal relationship between the work activity at the self-insured employer and the employee=s wrist difficulties.

 

With respect to the question of foundation for the physicians= opinions, the self-insured employer points out that the physicians failed to mention or account for the employee=s prior wrist difficulties in 1992.^[2]  In addition, the self-insured employer argues that employee improperly failed to disclose, in her deposition taken May 6, 1999 and in discovery, the existence and nature of her prior wrist problems in 1992.  They particularly point out that the employee apparently had an EMG performed in 1992 but that she failed to disclose this either at the deposition or during discovery.  (T. 114.)  Normally, we might think the employee=s failure to make such a disclosure was significant, but in this case the compensation judge apparently accepted as credible the employee=s testimony that the difficulties she had in 1992 were completely different than those she encountered in 1998.  She described her problems in 1992 as cramping of the muscles in her hand, which she associated with grasping and with the taking of laxatives in connection with an anorexic/bulimic condition she was struggling with at that time.  (T. 119.)  The employee testified that in 1992 she did not have any wrist pain or numbness, that her problems subsided in 1992, and that they were completely unlike the difficulties she had in 1998.  She argues that as she did not consider the 1992 problems to involve a similar condition, she had not received any physical therapy treatment and her problems were not associated with an injury, all but one of her answers in the deposition were accurate.  (T. 119-20.)  She further testified that she disclosed the nature of her 1992 problems to her physicians, who indicated that they were not relevant to her 1998 problems.  (T. 115, 128.)  The employee also points out that she disclosed the name of her family physician in Wisconsin, Dr. O=Malley, and provided an authorization to the employer to obtain Dr. O=Malley=s records, which should have contained information concerning her 1992 condition, including the results of the EMG.^[3]  (T. 115.)

 

The compensation judge was made aware of the employee=s failure to disclose the 1992 difficulties with her wrists, including her admission that her deposition testimony was incorrect when answering the question of whether she had Aany problems at all before May of 1996.@  He commented that her testimony in this regard placed some doubt on the employee=s credibility, but that doubt was not sufficient to cause him to find her other testimony to be false.  In addition, the compensation judge was free to find, based on the employee=s testimony concerning her conversations with her doctors, that she had advised her physicians of her earlier problems and that they had found them not to be significant.  As questions of credibility are primarily for the determination by the compensation judge, we will not disturb his findings on that issue.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  As a result, the compensation judge=s decision to honor the medical reports of the employee=s treating physicians over that of Dr. Tountas cannot be said to lack adequate foundation.  In cases where there are conflicting medical opinions, it is the compensation judge=s responsibility to resolve those disputes, and where there is adequate foundation for the opinions relied upon, the compensation judge=s resolution of those disputes will be affirmed by this court.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

In addition, in this case the compensation judge found that even if the 1992 upper extremity difficulties had been in some way related to the employee=s 1998 hand and wrist symptoms, that her extensive keyboarding activities from 1995 through 1998 were a substantial contributing cause of the employee=s difficulties after 1998.  This is not an unreasonable finding by the compensation judge and is fully in accord with the standards for the determination of a Gillette injury.  Such an injury need not be solely the result of the work activity of the employee but can also be due to work activities which combine with or aggravate an underlying preexisting condition.  In addition, subjective symptoms of pain, numbness and tingling can be the basis for imposition of restrictions on an employee=s ability to work and can form the basis both for the finding of a Gillette injury and an award of wage loss benefits.  As a result, we affirm the compensation judge=s determination that there was a causal relationship between the employee=s work activities with the self-insured employer and her wrist and hand pain, numbness and tingling.

 

Medical Expenses

 

The employer=s appeal with respect to the compensation judge=s finding that the medical expenses incurred by the employee were reasonable and necessary was based primarily on the opinion of Dr. Tountas that the employee had no objective symptoms and that her work activities did not cause her subjective complaints.  As we have affirmed the compensation judge=s finding of a causal relationship between the employee=s work activities and her problems, the self-insured employer=s argument with regard to the medical treatment has no merit.  As a result, we affirm the compensation judge=s award of medical treatment expenses.

 

Temporary Total Disability

 

The compensation judge determined that the employee was entitled to temporary total disability benefits from January 14 until the date she returned to work for the self-insured employer on June 7, 1999.  Although he found the employee had not engaged in a diligent job search, he found that the employee did have a reasonable expectation that she would be returning to her employer, and that she would have returned sooner but for the fact that the employer was unable to modify her work station until June 1999.  The employee testified that initially she was told that it would take at most one to two months to obtain the necessary modifications to her work station, but that there were unforeseen delays and the software and a new computer were not installed until June 1999.

 

Under the circumstances of this case, we cannot find the compensation judge=s determination to be unreasonable.  While there is an obligation to engage in a diligent job search in order to be entitled to temporary total disability, the compensation judge is given latitude to excuse such a failure if forcing an employee to look for other work would be inconsistent with the employee=s efforts to return to work with the employer.  Given the short period of time involved in this case, we do not find the compensation judge=s waiver of the requirement of a diligent job search to be unreasonable.  As a result, the award of temporary total disability benefits is affirmed.

 

Rehabilitation Assistance

 

The compensation judge determined that the efforts of QRC David N. Mickelson were unnecessary since the employer was actively working to return the employee to her pre-injury position.  He also found that the employee was not a Aqualified@ employee under Minn. Stat. ' 176.102 and as a result no rehabilitation assistance was required.

 

Following the self-insured employer=s denial of liability, the employee=s attorney arranged for the employee to obtain the services of QRC Mickelson.  Mr. Mickelson conducted a rehabilitation consultation on April 5, 1999, and made a number of telephone calls in connection with the employee=s case.  His total charges were approximately $300.00 for the initial report and consultation on April 5, 1999, and approximately $310.00 for later services of monitoring the employee=s efforts to return to work.  (T. 144-45; Ex. L.)  The compensation judge indicated that the employee was not entitled to rehabilitation services and the bill for such services by Mickelson Rehabilitation Consultants, Inc., would not be awarded.  In making this determination, the compensation judge made the following finding:

 

The employee is not a qualified employee because it was reasonably expected by all parties that she would return to suitable gainful employment with the date-of-injury employer as soon as certain job modifications were made.  Although there was some delay in getting the modifications, there never appeared to be any significant doubt that the modifications would be made and that she would return to work at the University.

 

(Finding 7.)

 

On appeal the employee contends that, at a minimum, the employee was entitled, as a matter of law, to a rehabilitation consultation with QRC Mickelson.  We agree.

 

Minn. Stat. ' 176.102, subd. 4(a), provides that a Arehabilitation consultation must be provided by the employer to an injured employee upon request of the employee, the employer or the commissioner.@  An insurer may not challenge an employee=s right to a rehabilitation consultation on the basis that the employee is not qualified for rehabilitation services.  Rather, the purpose of the rehabilitation consultation is Ato determine whether the employee is a qualified employee . . . to receive rehabilitation services . . . .@  Minn. R. 5220.0100, subp. 26.  See Goodwin v. Byerly=s, Inc., 52 W.C.D. 90 (W.C.C.A. 1994).  An employer and insurer are not, however, always indefinitely responsible for providing a rehabilitation consultation at the request of the employee merely because the employee sustained a personal injury.  In response to an employee=s request for a rehabilitation consultation, an employer and insurer may make certain defenses and raise threshold liability issues such as, but not limited to, allegations of complete recovery from the injury, lack of causal relationship, lack of notice and expiration of the statute of limitations.  Lewis v. Honeywell, Inc., 53 W.C.D. 364 (W.C.C.A. 1995); Judnick v. Shalom Home, slip op. (W.C.C.A. Aug. 4, 1995); Frazier v. RNW Assocs., slip op. (W.C.C.A. Sept. 30, 1999). 

 

In this case, the self-insured employer denied liability for the injury of September 21, 1998, but the compensation judge appropriately found this defense to lack merit.  As a result, the self-insured employer cannot assert any of the defenses recognized by the decisions cited above to the employee=s right to a rehabilitation consultation under Minn. Stat. ' 176.102, subd. 4(a).  We therefore reverse the compensation judge=s denial of payment for the rehabilitation consultation provided by QRC Mickelson, as she was entitled to the consultation as a matter of right under the statute.  However, the compensation judge=s decision that the employee was not a Aqualified@ employee, as defined by Minn. R. 5220.0100, subp. 22,^[4] and was not entitled to any rehabilitation services in addition to a consultation is affirmed as it is supported by his finding that the parties reasonably expected the employee to return to work for the self-insured employer.  The admission by the QRC that he stayed in the Abackground@ and that he could not point to any of his efforts which facilitated the employee=s return to work support the compensation judge=s conclusion.  (T. 147.)  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). 

 

Penalties

 

The employee claims that the compensation judge erred in failing to award penalties against the self-insured employer for its February 16, 1999 denial of primary liability, given the reports of Dr. Call and Dr. Pries that the employee=s symptoms were work related.  The compensation judge rejected this request, finding that the self-insured employer=s defenses were not frivolous.  The employer argues that its denial was supported by the facts that the medical reports were not clearly supportive of a causation finding, that all diagnostic tests were negative and that the employee=s symptoms did not improve when she ceased working.  The employer also points out that later, in April 1999, Dr. Pries indicated that she did not know what had caused the employee=s problems and that in June Dr. Tountas stated there was no causal relationship between the employee=s work and her symptoms.  Under these circumstances, we cannot say the compensation judge clearly erred in finding that the self-insured employer had a bona fide defense and that penalties were inappropriate.