CEREATHA SMITH, Employee, v. DATA CARD CORP. and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer/Appellants, and MEDICA/HEALTHCARE RECOVERIES, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 26, 2000

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s work activities were a substantial contributing cause of her wrist condition.

 

NOTICE OF INJURY; PRACTICE & PROCEDURE - REMAND.  Where the parties agreed that notice of injury was at issue at hearing but the judge failed to make any findings in that regard, the matter was remanded.

 

TEMPORARY BENEFITS - FULLY RECOVERED.  Where the judge made apparently irreconcilable findings regarding the existence of restrictions and the employee=s entitlement to temporary total disability benefits, the matter was remanded for reconsideration and clarification.

 

Affirmed in part, vacated in part, and remanded.

 

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

Compensation Judge:  Bonnie A. Peterson

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s decision that the employee sustained a work-related injury, from the judge=s award of temporary total disability benefits, and from the judge=s failure to make a finding regarding notice.  We affirm the finding of a work injury, vacate the finding of temporary total disability, and remand the case for findings on notice, restrictions, and temporary total disability.

 

BACKGROUND

 

The employee began working for Data Card Corporation [the employer] in 1992 as a janitor.  She did vacuuming, raking of plush carpets, mopping, cleaning windows, and polishing furniture on a daily basis.  She also emptied 220-230 wastebaskets and tied 125 waste bags shut per night.  Less regularly, her job required her to wipe window blinds and shampoo carpets.

 

On April 5, 1996, the employee was seen by Dr. Thomas N. Conner, apparently on referral from Dr. Roseann Taylor.  At that time, the employee complained of pain primarily about the palms and across the wrists, which had been present Aover the past months.@  The doctor=s notes reflect that A[t]his does bother her at nighttime.  It also bothers her at work and she is employed in a custodial service.@  Dr. Conner noted that AEMG results reveal bilateral carpal tunnel syndrome slightly greater on the right than the left,@ and he suggested using splints at night.

 

The employee returned to Dr. Conner on April 26, 1996.  At that time, she reported that she continued to have paresthesias at night, particularly on the left, but noted that her right side was more painful.  Dr. Conner recommended carpal tunnel release surgery.  On May 28, 1996, the employee called Dr. Conner=s office to schedule surgery, and on May 29, 1996, Dr. Conner completed an Application for Short-Term Disability Form, indicating that the employee would be totally disabled from work commencing June 5, 1996, and continuing for three to four weeks.

 

The employee underwent a carpal tunnel release procedure on the right side on June 5, 1996.  Approximately seven days later, the employer terminated the employee.  The employee was seen in follow-up by Dr. Conner on June 19, 1996, and July 26, 1996.  On both occasions, the doctor noted that the employee was making progress.  Between appointments, on July 18, 1996, the doctor completed a form indicating that the employee would be totally disabled for an indeterminate period.  At the time of the July 26 examination, the doctor noted that the employee had moderate swelling about the hand and wrist and some discomfort with full flexion into the palm, and he suggested that she be seen by a hand therapist to help with motion.  On September 11, 1996,  Dr. Conner completed an Attending Physician=s Statement, indicating that he had last seen the employee on July 26, 1996, and that at that time he had anticipated that the employee would be able to return to her regular job on approximately September 26, 1996.  He also stated that the employee was making slow progress and that she was going back to hand therapy on September 13, 1996, to work on right hand swelling as well as joint mobilization.   

 

The employee returned to Dr. Conner on September 25, 1996, complaining of Anumerous difficulties with both upper extremities.@  However, Dr. Conner noted that physical therapy had helped with the swelling in the right hand.  On examination, the doctor found full range of motion about the fingers, wrists, and elbows on both sides, but the employee=s right shoulder was stiff with some loss of internal rotation and flexion.  Dr. Conner suggested Athat the hand therapist [have] some additional visits for shoulder immobilization to help with apparent impingement-like syndrome of the shoulder and stiffness.@  The employee did not see Dr. Conner thereafter.^[1]

 

An October 11, 1996, notation in Dr. Conner=s records reflects that the employee was following up with Dr. Taylor.^[2]  Also on that date, the employee went through psychological testing with Dr. Judy L. Guerrero.  Following the testing, Dr. Guerrero concluded that the employee functions within the mild range of mental retardation and that she has difficulty with social judgment, the ability to manipulate numbers in her head, working in a timely fashion with her hands, and reproducing abstract designs.  Dr. Guerrero also concluded as follows:

 

It is likely that she will be unable to do jobs that require a lot of manipulation with her hands or a lot of standing or sitting at one time.  She also has difficulty with her verbal skills so she would have some trouble doing some type of work that also involves a lot of reading, writing, or math.

 

Her ultimate conclusion was that A[the employee] would have great trouble in any type of competitive setting and really does need a lot of assistance.@

 

On December 6, 1996, the employer completed a First Report of Injury, listing the claimed injury date as A11/95?@  The first report goes on to state that the injury is unknown, that the A[i]nsurance carrier received letter of representation from Ms. Smith=s attorney referencing 11/95 injury,@ and that the A[e]mployee did not submit a claim or report.@  The first report was filed with the Department of Labor and Industry on December 16, 1996.

 

The employee filed a claim petition on January 9, 1997, claiming a work-related injury in the form of bilateral carpal tunnel syndrome, temporary total disability benefits continuing from June 4, 1996, and an undetermined amount of permanent partial disability related to the hands and wrists. The employer and insurer answered, denying a work-related injury, notice, and disability.

 

On October 8, 1997, the employee was seen by Dr. Mark Sigmond.^[3]  At that time, the employee indicated that the pain and numbness was gone from her right hand but that she noticed an itching sensation in it.  The employee also denied any numbness or aching in the left hand.  On examination, Dr. Sigmond found that the employee had a well-healed surgical incision on the right, full range of motion, normal muscle bulk, and excellent grip strength.  He also found that the employee=s left hand was normal.  Finally, the doctor opined that the employee could use both her right and left hands in an unrestricted fashion and that she could perform her custodial work with the employer without restrictions.

 

On March 24, 1998, Dr. Conner responded to a request from the employee=s attorney for a medical report regarding the employee=s bilateral carpal tunnel syndrome.  In that report, Dr. Conner stated that Ait appears that her bilateral carpal tunnel syndrome was related to her employment as a janitor.@  He also stated that at the time of her last appointment (September 25, 1996), the employee Awould have been limited to a light-duty position with only minimal simple grasping or fine manipulations [and to a] l5-10 pound lifting restriction and only occasionally at that limit.@  He opined that the employee could not have returned to her regular job at that time.

 

The employee was examined by independent medical examiner Dr. Jeffrey Husband on August 5, 1998.  At that time, the employee was complaining of right and left upper extremity pain, numbness, and tingling.  On examination, Dr. Husband noted negative Tinel sign over the median nerve at both wrists, although percussion over the median nerve on the left produced pain radiating up to the elbow.  Further, while a Phalen test was negative bilaterally, it did create a sensation of pressure in the right wrist.  There was no swelling, deformity, or limitation of motion of the employee=s wrists or digits.  The doctor opined that, while the employee had symptoms and signs of bilateral carpal tunnel syndrome confirmed with electrodiagnostic testing, his examination did not support that diagnosis, and he was unable to make a specific organic and anatomic diagnosis.  It was his opinion that the employee=s work activities did not Ameet the criteria for repetition@ and therefore Adid not lead to or significantly aggravate the diagnosis of carpal tunnel syndrome.@  He had no recommendations for further treatment and opined that the employee had reached maximum medical improvement [MMI] as of the date of his exam and could work without restriction with regard to her upper extremities.

 

The matter proceeded to hearing on April 6, 1999.  In findings and order filed on June 2, 1999, the compensation judge found that the employee=s work activities Adid aggravate her wrist problems resulting in surgery in June of 1996,@ that Athe opinions of Dr. Sigmond and Dr. Husband in regard to restrictions [were] given greater weight,@ that the employee Ahas made little or no attempt to find work within any restrictions since recovering from her surgery,@ and that the employee was entitled to temporary total disability benefits from June 4, 1996, through August 5, 1998, the date of her visit with Dr. Husband.  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

 

Primary Liability

 

The employer and insurer concede that the medical report of Dr. Conner provides the requisite causation opinion, but they argue that the opinion must nevertheless be rejected because it lacks adequate foundation.  We are not persuaded.

 

Dr. Conner=s March 24, 1998, report was apparently written in response to a letter from the employee=s attorney dated February 17, 1997.  In that letter (part of Exhibit A), the attorney explained that the employee=s work as a janitor involved extensive use of her hands, and he went on to list specific work activities.  The hypothetical contained in that letter was consistent with the employee=s testimony at hearing and with the written description of her job duties received as an exhibit at hearing.  In addition to the activities listed in the February 17, 1997, letter, the employee testified to extensive use of her hands in emptying and tying shut waste bags.

 

Dr. Conner was the employee=s treating doctor from April 5, 1996, through September 25, 1996.  Contrary to the employer and insurer=s argument, a doctor is not required to list every fact and date upon which the doctor relied in forming his opinion.  A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Here, where the facts presented to the doctor were supported by the evidence, we uphold the judge=s choice of expert opinion and the finding that the employee=s bilateral carpal tunnel syndrome was causally related to her work activities with the employer.

 

Notice

 

Both the employee and the employer and insurer agree that notice was raised as an issue at trial but was not addressed by the compensation judge.  We therefore remand this matter to the judge for findings on this issue.  We note that a finding as to notice may necessitate a finding as to the date of injury.^[4]  We would also point out that the burden of proof as to timely notice is on the employee and that the judge should explain her decision with regard to the specific requirements of Minn. Stat. '176.141.  If the judge so chooses, she may request written arguments from the parties on this issue.

 

Temporary Total Disability

 

The employer and insurer argued at oral argument that the judge=s findings are contradictory and irreconcilable as they relate to temporary total disability benefits.  We agree.

 

At Finding 22, the judge observed that the Aopinions of Dr. Sigmond and Dr. Husband in regards to restrictions [were] given greater weight since [they] apparently contain[] more foundational information,@ and Drs. Sigmond and Husband both stated that the employee had no restrictions.  Moreover, in unappealed Finding 20, the judge found that the employee Ahas made little or no attempt to find work within any restrictions since recovering from her surgery.@  However, at Finding 24, the judge found that the employee Awas temporarily and totally disabled from June 4, 1996 through August 5, 1998, the date of her visit with Dr. Husband.@

 

In Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), the supreme court held that ongoing temporary total disability benefits are not payable to an employee who is medically able to return to work without restrictions or residual disability.^[5]  If the judge in fact adopted the opinion of Dr. Sigmond, as Finding 22 suggests, then temporary total disability benefits would not be payable, at least from and after the date of his opinion, if not before.  However, there are other possible interpretations of the record.  If the judge adopted the opinion of Dr. Conner^[6] and the testimony of the employee,^[7] then the employee was released to return to work with restrictions as of September 25, 1996.  An employee capable of working must generally make a diligent job search to establish entitlement to temporary total disability benefits, even if MMI has not been reached, unless factors such as age, physical condition, training, and experience indicate that the employee is incapable of obtaining anything but sporadic work with insubstantial income.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).^[8]  The judge=s finding of restrictions but Alittle or no attempt to find work@ would seem to mandate a denial of temporary total disability benefits, unless the judge concluded that a job search would be futile given the employee=s disabilities, work-related and otherwise.   

 

The judge=s memorandum is of little help in clarifying the contradictory findings or explaining her thinking as to the employee=s restrictions, or lack thereof, and her ultimate award of temporary total disability benefits.  For this reason, and because the evidence could be interpreted in a number of ways, we vacate Finding 24 and remand the issue of temporary total disability benefits to the compensation judge for reconsideration and clarification.  On remand, the judge should make a specific finding as to the employee=s restrictions and should apply, if necessary, the 104-week limit on temporary total disability benefits contained in Minn. Stat. '176.101, subd. 1(k).