SUSAN TRONE, Employee, v. UNIPAC SERV. and TRAVELERS INS. CO., Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 3, 2000

 

HEADNOTES

 

EVIDENCE - CREDIBILITY.  Despite some inconsistencies between the employee=s testimony and the rest of the record, there was insufficient justification to reverse the compensation judge=s decision that the employee=s testimony was credible.

 

CAUSATION - PSYCHOLOGICAL INJURY.  Substantial evidence, including expert opinion, supported the compensation judge=s finding that the employee=s work injury was a substantial contributing cause of the employee=s depression.

 

CAUSATION - SUBSTANTIAL EVIDENCE; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert opinion, supported the compensation judge=s findings as to the nature of the employee's injury and that she had not reached maximum medical improvement.

 

MEDICAL TREATMENT & EXPENSE - CHANGE OF PHYSICIANS.  Substantial evidence, including the employee=s testimony, supported the compensation judge=s decision that the employee had good cause to change physicians.

 

TERMINATION OF EMPLOYMENT - MISCONDUCT.  Substantial evidence, including the testimony of the employee and of a representative of the employer, supported the compensation judge=s implicit conclusion that the employee was not terminated from her employment for misconduct.

 

Affirmed.

 

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

Compensation Judge:  James R. Otto

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s findings that the employee=s testimony was credible, that the employee sustained a work-related injury that entitled her to temporary disability benefits, that the employee had not yet reached maximum medical improvement, that a change of physicians was appropriate, that the employee sustained a consequential injury in the nature of depression, and that the employee was not terminated for misconduct.  We affirm.

 

BACKGROUND

 

The employee began working at Unipac Service [the employer] in February of 1998.  She started there as a temporary worker through an employment agency, but in May of 1998 she was transferred to the claims department as an employee of the employer.  The employee worked thereafter as a claims processor, a job that involved computer work, filing, stapling, telephoning, copying, and other secretarial-type tasks.

 

On November 24, 1998, the employee reported aching in both wrists while typing.  A First Report of Injury, prepared by the employer, described the nature of the injury as Aaching in both wrists while typing due to repetitive motion.@  The employer and insurer accepted liability for the work injury.

 

On December 2, 1998, the employee sought medical treatment with Dr. Barbara Gibson, at Regions Hospital, at the direction of the employer.  Dr. Gibson diagnosed lateral epicondylitis, right greater than left, and wrist pain, right greater than left.  Dr. Gibson gave the employee a right wrist splint to wear while doing data entry work and directed that such work be interspersed with breaks every thirty minutes for stretching and exercises.  Dr. Gibson also referred the employee to Minnesota Hand Rehabilitation for physical therapy.^[1] 

 

The employee returned to Dr. Gibson on December 9, 1998, complaining that her symptoms were significantly worse and that her left upper extremity condition was nearly as bad as her right.  At that time, Dr. Gibson restricted the employee to two hours of work per day for the rest of the week, then four hours per day thereafter until her next appointment.  Dr. Gibson also limited typing/data entry to thirty minutes on, fifteen minutes off.  The employer and insurer paid temporary total disability benefits for December 9, 1998, and temporary partial disability benefits thereafter.  On December 16, 1998, Dr. Gibson released the employee to work four hours per day for that week, with an increase to six hours per day for the next week, and then an increase to eight hours per day thereafter.  Dr. Gibson also referred the employee for an EMG. 

 

The EMG, performed on December 21, 1998, was normal.  The employee reported significant pain from the EMG and returned to Dr. Gibson=s office that same day.  Dr. Gibson was not available, so the employee was seen by Dr. W. Lohman, who refused to take the employee off work, instead releasing her with the same restrictions. 

 

The employee returned to Dr. Gibson on December 30, 1998, reporting no change in her symptoms and still complaining of pain after her EMG.  The employee reported that she was still working four hours per day and had not increased her hours as recommended.  Dr. Gibson reported that the EMG was normal, recommended that the employee wear splints bilaterally, and referred the employee to Dr. Chris Tountas.

 

The employee was examined by Dr. Tountas on January 22, 1999.  Dr. Tountas ordered a bone scan and MRI^[2] and diagnosed functional overlay and symptom magnification.  He stated that the employee was capable of returning to work eight hours per day, without restrictions.

 

The employee returned to Dr. Gibson on January 28, 1999.  Dr. Gibson diagnosed chronic bilateral upper extremity myalgia, with no objective findings, and released the employee to work eight hours per day without restrictions.  However, the employee did not return to full-time work.

 

Also in approximately January of 1999, the employer instituted a benefits package called Time Choice Advantage [TCA], which allowed employees to accrue time on a monthly basis and then use that for vacation, personal, or sick time.  On March 1, 2, and 3, 1999, the employee left work early due to pain in her hands and wrists.  On each occasion, she was given a verbal and/or written warning that she had no TCA time remaining and that further time loss might lead to further disciplinary action up to and including termination.

 

On March 4, 1999, the employee left work more than three hours early and was seen by Dr. Craig Paulson of St. Croix Orthopaedics.  Noting a positive Phalen=s and swelling over the ulnar border of the wrist, in the ulnar column, and along the flexor carpi radialis tendon, Dr. Paulson diagnosed flexor carpi radialis tendinitis and intermittent carpal tunnel syndrome, and he restricted the employee to four to six hours of work per day with varied tasks.  The employee took those restrictions to the employer.  She once again left work, due to pain, after working less than eight hours on March 8, 1999, and was terminated on March 10, 1999.^[3]

 

On May 3, 1999, Dr. Paulson noted tenderness of the lateral epicondyle.  He performed a series of corticosteroid injections, and, in July of 1999, opined that the employee Ais developing secondary chronic pain related problems@ and prescribed Zoloft.  On September 20, 1999, Dr. Paulson opined that the employee Ahas a very significant chronic pain management problem@ and suggested a chronic pain program and treatment for depression.

 

The employee began treating with psychologist Marilyn Mason on August 2, 1999.  Ms. Mason diagnosed severe depression and opined that the November 24, 1998, work injury was a substantial contributing cause of that condition.  Ms. Mason also opined that the employee was totally disabled due to the depression. 

 

The employer and insurer filed a notice of intention to discontinue benefits on January 27, 1999, alleging that as of January 1, 1999, the employee was to increase her work hours each week until she was again working full time by January 26, 1999, and that she had not done so. When the NOID proceeded to administrative conference on February 25, 1999, the employee represented herself, and a compensation judge allowed the discontinuance.  On March 24, 1999, the employee, then represented by an attorney, filed an objection to discontinuance.

 

The objection to discontinuance proceeded to hearing on October 19, 1999.  In a decision filed on November 10, 1999, a compensation judge found that the employee was credible, that she did sustain a work-related injury that entitled her to temporary disability benefits, that she had not reached MMI, that she had developed a consequential depression, that she had good cause to change physicians to Dr. Paulson, and that she was not terminated for misconduct.  The employer and insurer appeal.^[4]

 

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

 

Credibility

 

The judge made a specific finding that the employee=s testimony Ahas been received as highly credible.@  The employer and insurer contend that the judge=s finding as to credibility is Afundamentally flawed and manifestly, contrary to the weight of the evidence.@  While we are troubled by the numerous inconsistencies between the employee=s testimony and the other evidence of record, as well as the repeated suggestions by medical providers that the employee was magnifying her symptoms, or malingering, we find insufficient justification to substitute our judgment for that of the compensation judge.^[5]  There is no indication that the judge failed to review all of the exhibits or that he was unaware of the inconsistencies in the records.  Assessment of witnesses= credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), citing Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).  Therefore, while the employer and insurer=s position certainly has some merit, we affirm the judge=s credibility determination.

 

Nature of Injury and MMI

 

The employer and insurer=s argument in this regard is that the compensation judge erred in concluding that the employee was suffering from a severe and disabling condition.  The employer and insurer argue that the employee=s contentions of severe symptoms are not borne out by any objective findings or positive test results and that any physical injury Awas merely temporary in nature.@  In making this argument, the employer and insurer rely on the records of Dr. Lohman, Dr. Pat McManmon, Minnesota Hand Rehabilitation, Dr. Gibson, and Dr. Tountas, all of which note that the employee had no objective findings on examination.  The employee, however, relies on the opinion of Dr. Paulson to support her claims.

 

Dr. Paulson first examined the employee on March 4, 1999, and noted that the employee had very small hands and wrists, a positive Phalen=s sign at the wrist, and swelling in the right  wrist.  The arthrogram recommended by Dr. Paulson revealed an abnormal flow of dye into the wrist flexor tendon on the palm side of the wrist, and the doctor testified that this finding Acorrelated with the other objective features on our physical exam, which was localized swelling and tenderness, and her subjective complaints of localized pain in there.@  At that time he diagnosed flexor carpal radialis tendinitis at the wrist flexor tendon with intermittent carpal tunnel syndrome, predominantly on the right.  When Dr. Paulson examined the employee again on May 3, 1999, the carpal tunnel and flexor carpal radialis tendonitis were still bothering her, but lateral condylar discomfort predominated.  On at least one subsequent office visit, Dr. Paulson noted swelling in both wrists along the ulnar column along the extensor carpi ulnaris tendon.  Dr. Paulson opined that the employee=s conditions were causally related to her work activities at the employer and that the employee had not yet reached maximum medical improvement [MMI].

 

The employer and insurer contend that Dr. Paulson=s opinion is based on the employee=s representation to him that her job with the employer involved 90% keyboarding, a representation that they contend is not supported by substantial evidence.^[6]  While Dr. Paulson  testified that it was his understanding that the employee did extensive keyboarding in her job with the employer, he stated on cross examination only that his opinion as to causation Amight@ change if in fact the keyboarding involved was substantially less and not sustained.  Further, on re-direct, the doctor testified that the employee had significantly smaller hands and wrists, which made her more susceptible to carpal tunnel syndrome.  A compensation judge=s choice between expert opinions is generally 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).  As the employee=s testimony supports the facts assumed by Dr. Paulson, we affirm the judge=s finding that the employee sustained a work-related injury from which she had not reached MMI as of the time of hearing.^[7] 

 

Consequential Depression

 

The employer and insurer contend that Athe determination as to whether the employee suffers from a consequential mental injury is contingent upon whether the employee has been truthful.@  Having affirmed the judge=s finding as to the employee=s credibility, we will not address that issue again.

 

The employer and insurer also contend that psychologist Mason=s opinions are Amedically unsound@ because she did not review any medical records.  However, Ms. Mason did testify that she reviewed the hypothetical that the employer and insurer gave to Dr. Keith Hartman at his deposition.^[8]  That hypothetical contained a detailed description of the employee=s medical treatment, including psychological treatment before the work injury.  The employer and insurer point to no specific information missing from their own hypothetical that would be crucial to Ms. Mason=s opinions. 

 

Finally, the employer and insurer attack the opinions of Ms. Mason because she did not know whether the employee was treating with a psychiatrist, she had never diagnosed a client as malingering, she did not have a Abasic understanding of the DSM IV factors for major depression,@ and her opinion regarding return to work was Aabsurd.@  These factors, however, go to weight, or persuasiveness, not foundation.  Again, the compensation judge is in the best position to choose between conflicting expert opinions, and his decision here to accept the opinion of psychologist Mason over psychiatrist Hartman was not clearly erroneous and will not be reversed.  Nord, 360 N.W.2d 337, 37 W.C.D. 364.

 

Change of Physician

 

The employer and insurer again contend that the employee=s lack of credibility requires reversal of the compensation judge=s finding that the employee had good cause to change treatment providers from Dr. Gibson and Dr. Lohman to Dr. Paulson.  The employee testified that she changed providers because she Aknew there was something wrong.  Their doctors could not seem to find the problem, and I needed some treatment to help with the pain.@  The judge found the employee=s testimony to be credible, and we have affirmed that finding.  The judge=s finding as to change of physicians is affirmed, as the employee=s testimony provides substantial evidence to support it.

 

Termination

 

The employer and insurer appeal from the judge=s implied finding that the employee was not terminated for misconduct.  The judge noted in his memorandum that the employee took Dr. Paulson=s restrictions to the employer on or about March 4, 1999, and the employer took no action to implement those restrictions.  This determination is supported by substantial evidence in the record, including the testimony of the employee and her supervisor.

 

The judge also commented in his memorandum that the employee was terminated on March 10, 1999, because she did not have any personal leave time available to cover her time off work due to her work injury.  This determination is also consistent with the evidence, specifically that of the employee=s supervisor, who testified that the employee told her that she was leaving work early due to pain in her hands and wrists and that the employee was terminated because she had no TCA to cover the lost time.

 

Given these facts and this court=s affirmance of the judge=s finding as to the employee=s credibility, the judge=s implied finding that the employee was not terminated for misconduct is affirmed.