WILLIAM CARROLL, Employee/Cross-Appellant, v. UNIVERSITY OF MINN., SELF-INSURED/SEDGWICK CLAIMS MGMT. SERVS., Employer/Appellant, and CAPITOL ORTHOPEDICS, LTD., HEALTHPARTNERS, INC., and HARTFORD LIFE & ACCIDENT INS. CO., Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 30, 2002

HEADNOTES

ARISING OUT OF & IN THE COURSE OF - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s finding that the employee=s left foot injury, in the nature of a permanent aggravation of a pre-existing condition, arose out of and in the course of his employment.

TEMPORARY TOTAL DISABILITY - JOB SEARCH.  Where the employee was placed on medical leave by the employer and was not provided rehabilitation assistance, the compensation judge could reasonably conclude that the employee had a reasonable expectation of returning to work for the employer.

TEMPORARY TOTAL DISABILITY - 104 WEEK LIMIT; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD 1(k).  Where the employee sustained a shoulder injury in 1997 and a foot injury in 1998, and was temporarily totally disabled for 104 weeks as a result of the foot injury, the fact that the employee=s disability during the 104-week period was due in part to his left shoulder condition does not extend the employer=s liability for temporary total disability benefits caused by the 1998 foot injury beyond 104 weeks.

Affirmed in part, reversed in part, and modified in part.

Determined by Rykken, J., Johnson, C. J., and Stofferahn, J.

Compensation Judge James R. Otto.

OPINION

MIRIAM P. RYKKEN, Judge

The self-insured employer appeals the compensation judge=s findings that the employee=s left foot injury arose out of his employment, that the employee was not disqualified from receiving temporary total disability benefits for failure to make a reasonable and diligent job search, that the employee was entitled to recommencement of temporary total disability benefits for his left shoulder injury, and that the employee was entitled to receive temporary total disability benefits for 104 weeks for his September 8, 1997, shoulder injury and also for his December 3, 1998, left foot injury for a total of up to 208 weeks of temporary total disability benefits.^[1]  The employee cross-appeals the compensation judge=s denial of penalties.  We affirm in part, reverse in part, and modify in part.

BACKGROUND

On September 8, 1997, William Carroll, the employee, sustained a Gillette injury to his left shoulder rotator cuff while working as a ventilation mechanic for the University of Minnesota, the self-insured employer.  The employee had worked for the employer since July 1986 and earned a weekly wage of $663.20 on September 8, 1997.  The employee=s shoulder was surgically repaired on November 17, 1997, by Dr. Randy Twito at Capitol Orthopedics.  The employer initially denied primary liability for this injury, and after an evidentiary hearing, the employee=s shoulder injury was adjudicated to be work-related, a finding which was affirmed by this court.  The employee received approximately 19 weeks of temporary total disability benefits as a result of that injury.  The employee also claimed benefits for an alleged 1995 knee injury, which was also addressed at the hearing and was determined not to be work-related.  See Carroll v. University of Minn., slip op. (W.C.C.A. May 4, 1999).

The employee returned to work with restrictions related to his shoulder injury in March 1998, and without restrictions in April 1998.  The employee continued to have problems with his shoulder, and a July 31, 1998, MRI scan indicated a recurrent tear, but the employee was able to continue working his regular ventilation mechanic position.  The employee=s position as a ventilation mechanic was classified as heavy work; the job included functions such as servicing and repairing supply and exhaust fans, servicing window air conditioning units, and servicing and replacing lights, and had physical requirements of frequent lifting up to 50 pounds, frequent over the shoulder work, frequent walking and standing and walking on elevated and uneven surfaces. 

In July 1998, the employee began treating for pain in his left heel and foot, and was diagnosed with plantar fasciitis.  The employee claimed that he notified his supervisor of this condition in June 1998, but no first report of injury was filed until November 1998.  On December 3, 1998, the employee injured his left foot while working; he testified that he was walking down some stairs at work when he felt a pop and burning sensation in his left foot.  On that date, the employee earned a weekly wage of $698.80.  The employee was diagnosed with a plantar fascia rupture of the left foot and restricted from work.  While off work for the left foot condition, the employee treated with Dr. Twito for his ongoing left shoulder problems.  Dr. Twito diagnosed a recurrent rotator cuff tear and performed a second shoulder surgery on April 14, 1999.  The employee was under work restrictions for his shoulder until June 14, 2000, when he apparently told Dr. Twito that he could self-modify his work activities.  At that point, Dr. Twito  released the employee to work without restrictions. 

However, the employee did not return to work at that point, as he continued to be disabled as a result of his December 3, 1998, left foot injury.  Following the employee=s left foot injury, he remained off work.  In September 1999, the employee started treating with Dr. Lowell Lutter, an orthopedic foot specialist.  Dr. Lutter opined that the employee could return to work, but that he would be limited to sedentary employment.  The employee did not return to work.  On May 17, 2000, Dr. Lutter performed surgery on the employee=s left plantar fascia.   On July 6, 2000, Dr. Lutter released the employee for sedentary work.  After a follow-up visit in September 2000, Dr. Lutter released him to work without restrictions, apparently also because the employee indicated that he could self-limit his activities at work.  The employee requested that the employer return him to his pre-injury ventilation mechanics position.  The employer required the employee to undergo a medical evaluation, which was performed by Dr. T.G. Domino at Fairview Healthworks Clinic on November 2, 2000.  Dr. Domino concluded that the employee had continuing restrictions related to his left shoulder, left knee, and left foot conditions, including working with the left arm below chest level, a 30 pound lifting restriction, avoiding ladder climbing, limiting walking to 20 minutes per hour, and avoiding hyper-flexing of the left foot.  Dr. Twito and Dr. Lutter agreed that the employee had permanent restrictions and that the requirements of the ventilation mechanic position exceeded the employee=s restrictions.  The employer advised the employee that the ventilation mechanic could not be modified on a permanent basis, and that he would have to be released to work without restrictions in order to return to his pre-injury position. 

On August 24, 2000, the employee underwent a medical evaluation with Dr. Gary Wyard, at the employer=s request.  Dr. Wyard concluded  that the employee=s left foot injury Awas caused or substantially contributed to by his work activities.@  Dr. Wyard also determined that the employee would need a sedentary job and that he should not be going up and down stairs or climbing ladders for a prolonged period. 

In January 2001, the employer provided a QRC to assist the employee in a job search.  In February 2001, the employee accepted a position with the employer as a building and grounds worker.  The employee experienced further problems with his left foot, and in May 2001, he was taken off work at Dr. Lutter=s recommendation.  The employee has not returned to work since that time.

On February 25, 2000, the employee filed a claim petition for temporary total disability benefits and medical expenses.  He later amended his claim to include temporary partial disability benefits for the period of time he returned to work in 2001.  A hearing was held on September 13, 2001, and October 24, 2001.  The compensation judge found that the employee=s re-tear of his left rotator cuff was a consequence of his 1997 left shoulder work injury.  He also found that the employee did not sustain a work-related injury to his left foot in June 1998, but that he did sustain a work-related injury to his left foot on December 3, 1998, in the nature of a permanent aggravation of a pre-existing plantar fasciitis condition which probably ruptured while the employee was either walking or walking down a flight of stairs at work.  The compensation judge also found that the employee was entitled to temporary total disability benefits claimed after December 2, 1998, for a total of up to 208 weeks of temporary total disability benefits, based on Aup to@ 104 weeks for each of his injuries on September 8, 1997, and December 3, 1998.  The self-insured employer appeals, and the employee cross-appeals the compensation judge=s denial of penalties under Minn. Stat. ' 176.225. 

STANDARD OF REVIEW

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.  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

Arising out of Employment

The self-insured employer argues that the compensation judge=s finding that the employee=s December 3, 1998, injury arose out of the course and scope of his employment is erroneous and not supported by substantial evidence.  A personal injury is defined as an Ainjury arising out of and in the course of employment.@  Minn. Stat. ' 176.011, subd. 16.  The Aarising out of@ requirement is a causation test.  For an injury to arise out of the employment, there must be a causal connection between the employment and the injury.  Lange v. Minneapolis-St. Paul Metro. Airport Comm=n., 257 Minn. 54, 99 N.W.2d 915, 21 W.C.D. 61 (1959).  The requisite causal connection Aexists if the employment, by reason of its nature, obligations or incidents may reasonably be found to be the source of the injury-producing hazard.@  Nelson v. City of St. Paul, 249 Minn. 53, 55, 81 N.W.2d 272, 275, 19 W.C.D. 120, 123 (1957).  The burden of proving a personal injury arising out of the employment is on the employee.  Minn. Stat. ' 176.021, subd. 1.  The issue on appeal is whether the employee sustained that burden. 

The employer argues that the compensation judge=s finding of causation is inconsistent with his finding that the employee=s testimony had not been received as fully credible as to whether he was walking on a flat floor or down a flight of stairs at the time that his plantar fascia ruptured.  The employee had given histories to different doctors that indicated either that he was walking, stepping forward, or walking down stairs at the time of his injury.  The compensation judge found that the employee was at work at the time that the injury occurred.  The alleged differences in the employee=s histories are not so inconsistent that the compensation judge could not rely upon the employee=s general testimony.  Further, the compensation judge relied upon Dr. Wyard=s medical opinion, as outlined in his initial reports and deposition testimony that the employee=s December 3, 1998, left foot injury was work-related.  The employee=s work required walking or standing for long hours on cement or concrete floors, frequent walking and standing, ladder climbing, and walking on elevated and uneven surfaces.  Dr. Wyard testified that there was no specific injury, but that the employee=s work activities could contribute to the condition.  In a deposition dated September 6, 2001, Dr. Wyard testified that the employee=s left foot injury was caused or substantially contributed to by his work activities.  Dr. Lutter also opined that the employee=s work activities were a substantial contributing factor to his rupture in the plantar fascia.  Substantial evidence supports the compensation judge=s finding that the employee=s left foot injury on December 3, 1998, arose out of and in the course of his employment, and we affirm.

Job Search

The employer also argues that the compensation judge erred by awarding temporary total disability benefits, claiming that the employee did not conduct a reasonable and diligent job search. Employees capable of working must generally make a reasonably diligent search for work in order to establish entitlement to benefits for total disability.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988).  The reasonableness of a job search is dependent on all of the facts and circumstances in the case.  Id. at 734, 40 W.C.D. at 956.  The determination of whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).  The reasonableness and diligence of the employee's work search is viewed within the context of the scope of rehabilitation assistance which has been provided by the employer and insurer.  Okia v. David Herman Health Care Ctr., 38 W.C.D. 261, 263 (W.C.C.A. 1985) (citation omitted), summarily aff'd (Minn. Nov. 27, 1985); see also Taylor v. George A. Hormel & Co., 42 W.C.D. 633, 639 (W.C.C.A. 1989). 

The employer argues that the employee=s focus on returning to his pre-injury job was unreasonable and even fraudulent, asserting that the employee had been told he could not return to this job unless he was released without restrictions, and claiming that he obtained such releases by misleading his doctors by telling them that he could self-limit his work activities.  The employer does not explain its reasons for not providing the employee with a rehabilitation consultation or services to assist the employee in returning to work or finding another position until January 18, 2001, even though they informed the employee by letter in March 1999 that he could not return to work with restrictions.  That same letter indicated that the employee would be placed on a medical leave of absence until he was able to return to his pre-injury job without restrictions.  This leave was later extended through March 1, 2001, by letter dated November 28, 2000.  This second letter indicated that if the employee had not returned to work with the employer as of March 1, 2001, his employment would be terminated.  Given the employer=s delay in providing rehabilitation assistance and the employer=s placement of the employee on medical leave, the compensation judge could reasonably conclude that the employee had a reasonable expectation of returning to work for the employer.  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).  Under these circumstances, the compensation judge could reasonably conclude that the employee is not disqualified from receiving temporary total disability benefits on the grounds that he failed to make a reasonable and diligent job search.  We affirm.

Temporary Total Disability Benefits

With regard to temporary total disability, the compensation judge found that

Mr. Carroll is entitled to receive payment for up to 104 weeks of benefits for temporary total disability for his injury on September 8, 1997 and his injury on December 3, 1998 for a total of (up to) 208 weeks of temporary total benefits laid back-to-back.

(Finding No. 13.)

Minn. Stat. ' 176.101, subd. 1(k), provides that temporary total benefits generally cease when 104 weeks have been paid.  The employee claims that he is entitled to 104 weeks of temporary total disability benefits for each injury, that there is no statutory authority for limiting benefits for multiple injuries to a single 104-week period, and that the employee=s dates of disability for each of his injuries are separate and readily identifiable in his physicians= respective chart notes.  By contrast, the employer argues that since the employee=s periods of disability for each injury overlap, each substantially contributing to the employee=s inability to work for a period of time, the 104 week cap for both injuries must be reduced for each week of combined disability.  The employer also argues that the employee is not entitled to recommencement of temporary total disability benefits related to his left shoulder injury, under Minn. Stat. ' 176.101, subd. 1(e)2, since the employee was not working at the time of his second shoulder surgery in April 1999.

In this case, the employee sustained a right shoulder injury on September 8, 1997, and received approximately19 weeks of temporary total disability benefits between November 17, 1997, and March 30, 1998, as a result of that injury.  He returned to work in March 1998, and missed some time from work in June and July due to a nonwork-related injury to his left foot.  For the 104-week period following his work-related injury to his left foot on December 3, 1998, the employee was temporarily totally disabled from work, as a substantial result of his left foot injury, and, from April 15, 1999, through October 15, 1999, also as a substantial result of his left shoulder injury.  (Ee=s Exh. M.)  Under these circumstances at least, where the employee was already totally disabled due to his left foot injury at the time of his shoulder surgery, the fact that the employee=s disability during the 104-week period was due in part to his left shoulder condition does not extend the employer=s liability for temporary total disability benefits caused by the 1998 foot injury beyond 104 weeks.

When the 104-week period expired on December 4, 2000, the employee continued to be disabled due to his left foot injury, and he made no claim that his shoulder condition substantially contributed to his ongoing disability after that date.  (See Ee=s Exh. M.)  As such, because the statutory limit for the employee=s foot injury had been reached and there was no total disability claim relative to the shoulder, we reverse the compensation judge=s award of temporary total disability benefits after December 3, 2000.  Exactly what benefits remain available, due to the employee=s shoulder condition, need not be determined at this time.  We also modify the award of reimbursement to intervenor, Hartford Life and Accident Insurance Company, to limit its reimbursement to those short-term and long-term disability benefits paid to the employee during that same period.  Under these circumstances, we need not address the employer and insurer=s argument that temporary total disability benefits related to the employee=s shoulder could not be recommenced under Minn. Stat.  ' 176.101, subd. 1(e)2.

Penalties

The employee cross-appeals the compensation judge=s denial of penalties claimed under Minn. Stat. ' 176.225 for unreasonable delay in payment of workers= compensation benefits.  Minn. ' 176.225, subd. 1, provides for an additional award of penalties in certain circumstances, where an employer or insurer has Ainstituted a proceeding or interposed a defense which does not present a real controversy but which is frivolous or for the purpose of delay,@ or Aneglected or refused to pay compensation.@  The compensation judge found that the employee  was not entitled to an award of penalties.  The employee contends that the employer offered no reasonable defense for its continuing refusal to pay his claimed benefits.  

In Hines v. Kobiela, 308 Minn. 20, 241 N.W.2d 814, 28 W.C.D. 400 (1976), the supreme court held that a penalty under Minn. Stat. ' 176.225, subds. 1(a) and (c), may be imposed where Athe reason for [the] neglect and refusal to pay compensation [is] patently ill-founded and unwarranted.@  However, the assertion of a defense is not frivolous where the question of legal causation is close enough to warrant review.  See Jolly v. Jesco, Inc., 283 Minn. 139, 166 N.W.2d 708, 24 W.C.D. 801 (1969).  In general, a defense is frivolous when it is unsupported by any positive evidence.  Jackson v. Eveleth Mines, 49 W.C.D. 591 (W.C.C.A. 1993).  An award of penalties is not appropriate, however, where the employer and insurer interpose a good-faith defense.  Heise v. Honeywell, Inc., 48 W.C.D. 523 (W.C.C.A. 1993).  The fact that the employer and insurer do not ultimately prevail on their defense does not necessarily create a basis for the imposition of penalties.  Greene v. Independent Sch. Dist. #202, 36 W.C.D. 601 (W.C.C.A. 1984).

In claiming that penalties are warranted, the employee cites the compensation judge=s findings, that there did not appear to be any genuine dispute as to whether the employee=s re-injury of his left shoulder was causally related to his 1997 work injury or that the rupture of his left plantar fascia was causally related to his employment.   The employer raised a defense to the causation of the employee=s left foot injury, relying on a supplemental medical report by Dr. Wyard that  the employee=s left foot injury was not work-related, but rather was idiopathic in nature.  In addition, the employer raised multiple defenses to payment of benefits, including credibility and lack of diligent job search, and did not limit its defense to causation arguments.   AThe assertion of a defense is not frivolous where the question of legal causation is close enough to warrant review.@  Gerulli v. USX Corp., slip op. (W.C.C.A. Nov. 14, 2000).  In view of the medical evidence and testimony in the record, the employer had at least a colorable defense to the employee=s claims.  Accordingly, the compensation judge did not err by denying the employee=s claim for penalties.