MARIO THYER, Employee/Appellant, v. DALLAS STARS HOCKEY CLUB and AMERICAN HOME ASSURANCE, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 4, 2000

 

HEADNOTES

 

EVIDENCE - EXPERT MEDICAL OPINION; EVIDENCE ADMISSION.  Admissibility of a doctor=s report is not governed by the 120-day rule set forth in Minn. Stat. ' 176.155, subd. 1, where the doctor reviewed the employee=s medical records, but did not personally examine the employee.  Under the facts in this case, the employer and insurer=s medical expert=s opinion did not lack foundation, and the compensation judge could properly consider his reports.

 

TEMPORARY BENEFITS - EARNING CAPACITY.  An employee=s alleged lack of skill or ability to perform the job in which he was injured is not a material or dispositive fact in determining whether the employee=s ability to earn has been impaired by his work injury. The compensation judge erred in finding the employee failed to prove a causal relationship between his work injury and any loss of earning capacity based on his conclusion that the employee had not possessed the requisite skills to play professional hockey in the National Hockey League. 

 

Reversed and remanded.

 

Determined by: Johnson, J., Wheeler, C.J., and Pederson, J.

Compensation Judge: Paul V. Rieke

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s denial of his claims for temporary total and temporary partial disability benefits.  We reverse and remand for further findings in accordance with this opinion.

 

BACKGROUND

 

On February 28, 1992, Mario Thyer, the employee, sustained a personal injury to his right eye arising out of and in the course of his employment with the employer, the North Stars Hockey Club (now the Dallas Stars Hockey Club).  On that date, the employee=s weekly wage was $2,692.31.  The employer and American Home Assurance admitted liability for the employee=s personal injury and stipulated the employee sustained a 1.5 percent whole body permanent partial disability due to his right eye injury. 

 

The employee entered into a four-year contract with the employer to play hockey on June 20, 1989.  The contract covered the period from the fall of 1989 to the spring of 1993.  Under the terms of the contract, the employer agreed to pay the employee $140,000.00 for the 1991-92 hockey season.  (Pet. Ex. B.)  During the first year of his contract, the employee played hockey for the Kalamazoo Wings, a North Stars farm team in the International Hockey League (IHL).  That season, the employee also played five games for the North Stars.  Thereafter, the employee played exclusively for Kalamazoo.  The employee=s injury occurred at Kalamazoo during the third year of his contract with the employer. 

 

Immediately following the February 28, 1992 injury, the employee was seen at the Bronson Methodist Hospital emergency center.  He was treated and released.  (Resp. Ex. 1-2.)  On February 29, 1992, Dr. A.L. Schut, an ophthalmologist at Kalamazoo Ophthalmology, P.C, examined the employee.  The doctor diagnosed a traumatic hyphema, a hemorrhage within the anterior chamber of the eye.^[1]  Dr. Schut took the employee off work.  By March 4, 1992, the doctor noted the employee was Adoing better@ but still had a +4 cellular response.  On March 9, 1992, Dr. Schut noted the anterior chamber of the employee=s eye was clear and he stated the employee could Aassume his own activity and let his vision be his guide.@  By report dated May 28, 1992, Dr. Schut gave a final diagnosis of traumatic hyphema and rated no permanent partial disability.  However, the doctor stated the employee should be re-examined and the retina perphery checked, but he was transferred before this could be accomplished.  (Resp. Ex. 1.1.)

 

While the employee was off work following his injury, the North Stars traded him to the New York Rangers.  The Rangers assigned the employee to a farm team in the American Hockey League (AHL), the Binghamton Rangers.  At the end of the 1992 hockey season, the Rangers traded the employee back to the North Stars.  Effective July 17, 1992, the employer purchased the balance of the employee=s contract for $50,000.00 and released him.^[2]  (Pet. Ex. C.)  Thereafter, the employee was hired by the Cincinnati Cyclones of the IHL where he played during the 1992-93 hockey season.  The employee earned approximately $35,000.00 for the season.  At the end of the 1993 season, the employee=s agent found the employee a position with the Portland Pirates of the AHL.  The employee played three games for the Pirates and then left to play for a team in Germany.  The employee=s contract with the German team was for approximately $50,000.00 for the season, but the hockey team missed payroll payments and eventually went bankrupt a few months after the employee arrived.  The employee returned to the United States in January 1994, but was unable to find another minor league hockey job.

 

On May 10, 1994, the employee was examined by Dr. John E. Gaetani.  The doctor had first examined the employee in 1988 at which time his vision and ocular health were normal, although the employee was near-sighted.  The employee=s eyes continued to be normal through June 4, 1991, the employee=s last exam by Dr. Gaetani before his injury.  The doctor obtained a subsequent history of blunt trauma to the employee=s right eye resulting in a hyphema.  The employee=s chief complaint was of glare and chronic photophobia, an abnormal visual intolerance of light.^[3]  On examination, Dr. Gaetani noted the employee=s iris was fixed and mid-dilated.  The doctor related the employee=s condition to the lack of a normally functioning iris secondary to his work injury.  The doctor stated the Atonic pupil of Mr. Thyer=s right eye is a permanent, physical, and cosmetic impairment.  Based upon a reasonable degree of certainty, the injury which has rendered the right iris immobile, is permanent.@  The doctor stated the employee had no restrictions other than safety concerns, but concluded his right eye would never react normally to light.  The doctor further stated that because Aa re-bleed may occur, I have strong objections of Mr. Thyer returning to competitive hockey.@  Finally, the doctor noted some cataract formation in the right eye which he opined would require surgical correction in the future.  (Resp. Ex. 1-3.)

 

The employee played roller hockey during the summer of 1994.  His agent continued to look for employment opportunities as an ice hockey player.  The employee was offered positions with several teams in the East Coast Hockey League, but he declined due to the low pay.  In 1995, the employee returned to the University of Maine to obtain his undergraduate degree.  He completed a degree in business and finance in December 1995.  (T. 98-99.)  During the summer of 1995, the employee worked at a hockey school for two weeks and earned approximately $1,000.00.  In the fall of 1995, the employee accepted a job as an assistant hockey coach for the University of Maine.  The employee was paid approximately $30,000.00.  He continued in this position until the end of the 1998 college hockey season.  In November 1998, the employee began working as a sales and service representative for Fleet Bank.  (T. 104-105.)  He has obtained an insurance license and is able to sell annuities.  The employee plans to pursue the licensing necessary to become an investment specialist.  (T. 105-107.)  The employee=s salary with Fleet Bank is approximately $25,000.00 per year.

 

The employee was examined by Dr. Steven J. Grosser on June 11, 1999, at the request of his attorney.  The employee reported three symptoms which started right after the injury: photophobia in the right eye in bright lights, difficulty focusing up close with the right eye and bitemporal headaches when in the sun for more than four to five hours.  When asked by the doctor if his visual symptoms caused him to stop playing professionally, the employee stated Ahe was not sure.@  The employee reported, however, his symptoms interfered with playing hockey, especially in bright arenas.  On examination, the employee=s right pupil was slightly irregular and less reactive than the left pupil.  The inferior half of the right pupil did not react to light and was larger in the light than the left pupil.  In the dark, the pupils were symmetrical in diameter.  In the light, the right pupil was one millimeter larger.  The doctor also noted a cortical cataract in the right eye.  The doctor related these conditions and abnormal findings to the February 28, 1992 injury.  Dr. Grosser diagnosed permanent photophobia, post-traumatic mydriasis/anisocoria,^[4] permanent post-traumatic cataract, permanent headache and a suspicion of glaucoma.  Dr. Grosser stated the employee should wear appropriate eye protection if engaging in any activity that might reinjure his right eye.  Further, he opined the employee=s photophobia would interfere with prolonged activity in bright light, especially if sunglasses could not be worn.  The doctor opined the employee=s injuries diminished his ability as a hockey player.  (Resp. Ex. 1-6.)

 

Dr. James S. Allen, an ophthalmologist, was retained by the employer and insurer to review the employee=s medical records and render opinions.  Dr. Allen reviewed the records of Kalamazoo Ophthalmology, Bronson Methodist Hospital, Gaetani Eye Care, Dr. Richard Simon and Dr. Steven Grosser.  By report dated July 27, 1999, Dr. Allen diagnosed post-traumatic mydriasis/ anisocoria, permanent; post-traumatic cataract, permanent; photophobia secondary to post-traumatic mydriasis/anisocoria, permanent; glaucoma suspect, permanent and headaches of unknown etiology.  The doctor stated that generally patients with one mm of anisocoria function well without any symptoms and patients with light sensitivity due to anisocoria can be treated with dark glasses or contact lenses.  Dr. Allen opined the employee=s photophobia was not disabling, and his cataract was minor and did not affect his vision at the time the employee decided to retire from professional hockey.  Further, the doctor stated the employee=s photophobia caused by the anisocoria was very minor.  Dr. Allen opined the employee had a very low risk of developing glaucoma in the future, and concluded the employee=s headaches were not related to his February 28, 1992 injury.  The doctor stated the employee did not have work-related restrictions and opined the employee=s injuries did not prevent his playing professional hockey.  The doctor opined the employee=s symptoms could be easily treated and would not prohibit the employee from his work duties or activities of daily living.  Dr. Allen rated 2 percent permanent disability under Minn. R. 5223.0320, subp. 3.D.(2).^[5]  Using subpart 3.E. of the rule, Dr. Allen calculated a 0.5 percent disability of the employee=s visual system which, rounded up, yields a 1 percent whole body disability.  (Resp. Ex. 1-8.)

 

By report dated August 13, 1999, Dr. Grosser rated a 2 percent disability under Minn. R. 5223.0030, subp. 5, for loss of adaptation to light and dark and 2 percent for visual disability due to a cataract.  The doctor stated this translated to a 2 percent whole body disability.  Dr. Grosser then commented on Dr. Allen=s report and disagreed with Dr. Allen=s conclusion that one millimeter of anisocoria would cause only a minor degree of photophobia.  He opined the employee could have a large degree of photophobia with a small amount of anisocoria.  The doctor further noted the halogen lighting in arenas and reflection off an ice surface resulted in brighter conditions than the doctor=s examining room.  The brighter lights make a normal pupil constrict even further, thus increasing the employee=s anisocoria and photophobia.  Finally, the doctor opined the employee=s ability to play hockey was reduced as a result of his injury due to light sensitivity and poor pupil function.  The doctor opined the employee would have a decreased ability to see a fast-moving puck, see a teammate requiring right peripheral vision and maintain depth perception.  The doctor opined these difficulties would increase depending on the amount of glare off the ice or from the overhead lights which could momentarily blur the employee=s vision.  (Resp. Ex. 1-6.)

 

Dr. Allen prepared a supplemental report dated October 13, 1999, after review of Dr. Grossen=s medical reports.  Dr. Allen stated the disability schedules provide no rating for glaucoma suspect or cataract.  The doctor further opined that people with far greater degrees of anisocoria than the employee Aare able to function quite normally, even in extremely bright outdoor conditions.@  (Resp. Ex. 1-8.)

 

The employee=s claim for temporary total and temporary partial disability benefits was heard by a compensation judge at the Office of Administrative Hearings on October 15, 1999.  In a Findings and Order served and filed November 29, 1999, the compensation judge found the employee=s current earnings are representative of his present earning capacity.  The compensation judge further found the evidence did not support a conclusion that the employee would have eventually played in the National Hockey League.  The judge found the employee did not sustain a reduction in earnings as a hockey player and concluded the employee failed to prove his February 28, 1992 injury was a substantial contributing cause to his loss of earnings thereafter.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Report of Dr. Allen: Admissibility, Foundation

 

The employee first contends the compensation judge erroneously admitted the medical reports of Dr. Allen.  Minn. Stat. ' 176.155, subd. 1, requires that an examination by the employer=s physician be completed and the report of the examination served and filed within 120 days of service of the claim petition.  Dr. Allen=s reports were not served and filed within that time period.  Accordingly, the employee contends his reports should have been excluded by the compensation judge.  We disagree.

 

Minn. Stat. ' 176.155, subd. 1, provides the injured employee must submit to  an examination by the employer=s physician.  AThe examination shall be completed and the report of the examination shall be served on the employee and filed with the commissioner within 120 days of service of the claim petition.@  In this case, Dr. Allen did not examine the employee.  Rather, the doctor based his opinions on a review of the employee=s medical records.  Since Dr. Allen did not examine the employee, admissibility of the doctor=s report is not governed by the 120-day rule of the statute.  The judge did, however, afford the employee the opportunity to depose Dr. Allen.  (T. 19, 163.)  The employee was, therefore, afforded a right to cross examine the witness.  See Scalf v. LaSalle Convalescent Home, 481 N.W.2d 364, 46 W.C.D. 283 (Minn. 1992).  The compensation judge properly admitted Dr. Allen=s reports.

 

The employee further argues that Dr. Allen=s reports lack foundation because he did not examine the employee.  Since the reports lack foundation, the employee argues the compensation judge cannot consider them in evaluating the nature and extent of the employee=s injury.  To do otherwise, the employee contends, would render Minn. Stat. ' 176.155, subd. 1, meaningless.  We disagree.

 

As a general rule, the competency of a witness to provide expert medical testimony depends upon the degree of the witness=s scientific knowledge and the extent of the witness=s practical experience with the matter which is the subject of the offered testimony.  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  An expert=s opinion may be based on personal knowledge of the case, testimony heard during the trial or facts in evidence presented in the form of a hypothetical question.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).  So long as an expert witness is otherwise qualified to testify and has sufficient facts to permit the witness to give a reasonable opinion not based on speculation or conjecture, the expert has foundation to testify whether or not the doctor ever personally examined the employee.  See State Farm Fire & Casualty Co. v. Wicka, 474 N.W.2d 324 (Minn. 1991).

 

Dr. Allen reviewed the employee=s relevant medical records.  In his report of July 27, 1999, he set forth the history of the employee=s injury and subsequent medical treatment.  Dr. Allen accepted as fact the physical findings and test measurements of the employee=s treating physicians.  The doctor=s factual assumptions are consistent with the evidence at trial.  Clearly, Dr. Allen had sufficient knowledge of the subject matter of the litigation to render expert opinions.  Accordingly, Dr. Allen had foundation for his opinions and the compensation judge may consider his reports.  (Resp. Ex. 1-8.)

 

Earning Capacity - Causal Relationship

 

The compensation judge found the employee failed to prove his work-related injury on February 28, 1992, was a substantial contributing factor to any loss of, or reduction in, earnings after July 1992.  The employee contends this finding is legally erroneous and unsupported by substantial evidence.  He asserts the compensation judge=s denial of wage loss benefits is improperly based on the judge=s conclusion that the employee did not possess the requisite skill to play professional hockey in the National Hockey League.  The employee argues the judge=s conclusion does not resolve the issue of whether he sustained a loss of earning capacity causally related to his personal injury.  The employer and insurer respond that the employee was able to return to his pre-injury job, at no wage loss, until the North Stars exercised the fourth-year option and released him at the conclusion of the 1992 season.  Regardless of his injury, the respondents contend, the employee was never going to receive another $140,000.00 NHL contract.  Accordingly, respondents argue substantial evidence supports the compensation judge=s finding of no causation between the employee=s injury and his wage loss.

 

Claims by injured professional athletes for wage loss benefits present unique problems in resolving the issue of causation between the injury and any wage loss.  Often, an athlete=s date-of-injury wage is very high relative to that athlete=s potential earnings in another occupation.  Thus, a professional athlete, whether injured or not, may experience a significant wage loss after retirement from professional sports.  Further, a career in professional sports is inherently limited in duration.  Certainly, an injury can shorten or even terminate a professional athlete=s career.  But even without injury, at some point, most athletes become unable to perform at the skill level required by the particular sport.

 

The compensation judge found the employee failed to prove his work injury was a substantial contributing cause of his subsequent wage loss.  Generally, causation is a question of fact for the compensation judge.  As the employee contends, however, this finding was apparently based on the judge=s conclusion that the employee, even without his injury, never possessed the requisite skills to play hockey in the National Hockey League.^[6]  In his memorandum, the compensation judge stated there are Aa number of variables that enter into the longevity of a hockey player=s career and it is speculative to suggest that the employee=s injury was a substantial contributing factor to the extent of his hockey involvement after his departure from the employer.@  (Mem. at 6.)  Thus, the compensation judge apparently reasoned that the employee failed to prove his wage loss after his termination by the employer was caused by the injury rather than the employee=s lack of skill as a hockey player.

 

To establish entitlement to temporary total or temporary partial disability benefits, the employee must prove the injury caused disability resulting in a loss of an ability to earn.  Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  Termination by the employer due to the employee=s alleged lack of skill or ability to perform the job is not a material or dispositive factor on the issue of causation between the personal injury and any wage loss or loss of earning capacity.^[7]  An employee is not required to prove he was qualified for the job in which he was injured to be eligible for workers= compensation benefits.  An employee=s skills and abilities are personal to the employee and the employer accepts the employee with the employee=s inherent abilities or lack thereof.  While an employer may have the right to terminate an employee for substandard performance due to lack of the qualities or skills needed for the job, such lack of demonstrated skill or ability has no bearing on whether the injured employee=s ability to earn has been affected by the personal injury.  See, e.g., Dorn, id.  Rather, the question is whether the personal injury, in combination with the employee=s skills, age, training and experience, has impaired the employee=s ability to earn.  We, therefore, vacate finding 10.

 

Physical Disability

 

An injured employee=s entitlement to wage loss benefits, whether temporary total or temporary partial disability benefits, requires proof of some continuing physical impairment or disability caused by the personal injury.  See, e.g., Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967); Dorn at 454, 29 W.C.D. at 91.  The employee testified his physical abilities were diminished because of his personal injury and both parties offered medical records and opinions bearing on the question.  The compensation judge, however, made no finding whether the employee=s personal injury caused any physical impairment or limitation of function.  Accordingly, we remand the case to the compensation judge to make such a finding. 

 

If Athe employee is found medically able to return to work without restrictions, having suffered no residual disability from his work injury . . .@, the employee has no entitlement to wage loss benefits.  Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  If, however, the employee=s personal injury resulted in physical limitations or restrictions, the compensation judge must reconsider the causation issue taking into account the physical disability and the employee=s ability to work subject to the disability.