LAURIE M. HANSON, Employee, v. BAGLEY HARDWOOD PRODS., INC., and INDIANA LUMBERMEN=S MUT. INS., Employer-Insurer/Appellants, and NORTH COUNTRY REG'L HOSP. and NELSON CAREER SERVS., Intervenors.

 

WORKERS' COMPENSATION COURT OF APPEALS

JANUARY 7, 2002

                       

HEADNOTES

 

REHABILITATION - QUALIFIED EMPLOYEE; RULES CONSTRUED - MINN. R. 5220.0100, SUBP. 22(c).  Formal written restrictions by an employee=s treating physician are not a legal prerequisite to a finding that an employee is eligible for rehabilitation services.  An employee=s credible testimony alone may constitute sufficient evidence to support a compensation judge=s finding that the employee has a disability which restricts or limits that employee=s ability to perform work.

 

Affirmed.

 

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

Compensation Judge:  Danny P. Kelly

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The employer and insurer appeal from the compensation judge=s findings that the employee is permanently precluded by the effects of her work injury from engaging in her pre-injury job, and from an award of rehabilitation services.  We affirm.

 

BACKGROUND

 

The employee, Laurie M. Hanson, sustained an admitted personal injury to her dominant right hand on July 18, 1997 while working for the employer, Bagley Hardwood Products.  She worked for the employer on an assembly belt, sorting wood.  The injury occurred when her hand was pulled into a double-end saw while she was attempting to release some wood from the machine.  (T. 62, 65.)

 

On the date of injury, the employee was taken to the Meritcare Clinic in Bagley, Minnesota, where tendon repair was done.  On the same day, the employee was sent to the North Country Regional Hospital in Bemidji where x-rays of the right hand showed considerable destruction of the proximal end of the middle phalanx of the right index finger with fragmentation of the bone, as well as an avulsion fracture at the base of the proximal phalanx of the right index finger.  She was taken to an operating suite where surgery was performed on her right thumb and index and long fingers by Dr. Glenn R. Johnson, M.D.  The surgery included open reduction and internal fixation of an interarticular fracture of the middle phalanx and proximal interphalangeal (APIP@) joint together with repair of the extensor tendon.  Some of the tendon was found to be missing and the repair was not anatomic, but the surgeon noted that in light of the shortening of the missing bone, a functional result could be expected.  The proximal and distal interphalangeal joints were pinned in full extension.  (Exhs. B, E.)

 

The pin surgically placed through the employee=s right index finger was removed by Dr. Johnson on August 12, 1997.  The employee was released to return to work with a ten-pound lifting restriction and was prescribed occupational therapy to work on range of motion.  The employee completed the prescribed occupational therapy on September 9, 1997.  (Exhs. 2, 3.)

 

The employee was also seen by Dr. Johnson on September 9, 1997 and reported that she had continued to have difficulties with her index finger and had recently reinjured it when her fingernail caught on her sweater.  In a letter prepared on that date, September 9, Dr. Johnson indicated that the employee had lost the ability to flex and extend her index finger.  X-rays taken that day showed displacement of the large articular fragment on the dorsum and proximal end of the middle phalanx.  Dr. Johnson recommended that the employee undergo further stabilization or repair of this problem and referred the employee to Dr. Sam Chun, M.D., a hand surgeon in Fargo, North Dakota.  He thought that the employee could continue working while waiting to see Dr. Chun so long as she was able to protect her index finger.  (Exhs. E, 6.)

 

Dr. Chun was unavailable and the employee was seen instead by another surgeon, Dr. Scott Jenkins, M.D., in Robbinsdale, Minnesota.  Dr. Jenkins performed surgery on the employee=s right index finger on September 16, 1997.  During the surgery he concluded that, when the employee had sustained her work injury, there had also been an articular fracture, and that the fragment had healed out of position.  The fragment was cleared of scar tissue, wedged back into position and secured with a wire driven in through the end of the finger along the dorsum of the middle phalanx into the proximal phalanx.  The prior repair of the employee=s extensor tendon tear and central slip were revised.   (Exh. 6.)

 

On September 24, 1997 the employee=s sutures were removed and she was released to return to one-handed work.  The pin was removed on October 29, 1997, at which time the employee was again started on range of motion therapy and the restriction to one-handed work was continued.  (Exh. 5.)

 

Despite further occupational therapy, the employee=s right index finger continued to be stiff following the second surgery.  On January 14, 1998 the employee returned to Dr. Jenkins who recommended further surgery in the form of a tenoarthrolysis.  This procedure was performed some time in January 1998 and the employee was again returned to occupational therapy.  (T. 68; Exhs. B, 5.)

 

On February 11, 1998 Dr. Jenkins wrote a note authorizing  Areturn to work without restriction - use R hand limited by pain.@  The employee testified that Dr. Jenkins had discussed this note with her and told her that she could use her right hand as much as she could, but that she should stop using it when it hurt.  (Exh. 5; T. 71.) 

 

On April 23, 1998 Dr. Jenkins noted that the employee=s active range of motion in the PIP joint had dropped from 0/90 to 0/70 over the past month and considered this Anot a good sign.@  He further noted that the reports from hand therapy indicated that no further progress could be expected.  He had no further treatment to offer and concluded that maximum medical improvement had been reached as of that date.  The employee was again released to work without restrictions.  According to the employee=s testimony, Dr. Jenkins told her that she should try to avoid any activities that caused problems with her index finger.  On April 29, 1998 Dr. Jenkins rated the employee with a 4.36 percent whole-body permanent partial disability.  (Exh. 5; T. 72.)

 

The employee testified that she continued to have problems with the use of her right hand, including hand cramps and muscle spasms; stiffness, pain and swelling in the index finger; and tingling and numbness in the right thumb.  She sometimes dropped things held in the right hand and had pain and swelling in the right wrist when carrying.  (T.73-74.)

 

She returned to Dr. Johnson on December 1, 1998.  Dr. Johnson diagnosed post-traumatic arthritis of the PIP joint and Asyndrome of the quadriga.@  He thought that the employee might be a candidate for a fusion, joint debridement or prosthetic joint, and again recommended that the employee be seen by hand surgeon Dr. Chun. (Exh. 2.)

 

Dr. Chun examined the employee on March 4, 1999.  He noted some limitation in range of motion in the proximal and distal interphalangeal joints of the index finger and in the medial phalangeal joints in both the index and middle fingers, but noted no evidence of crepitation.  An x-ray on that date was read as compatible with osteoarthritis of the right index finger, possibly traumatic in etiology.   Dr. Chun recommended that the employee try Abuddy taping@ her index finger to her middle finger and that she continue Aobservation.@  According to the employee, he also advised her to Ado what I could do until it bothered me and then stop.@  He completed a AReport of Work Ability@ form by checking a box marked ARecommend his/her return to work with no limitations.@  (Exhs. D, 8; T. 79.)

 

The employee had at some point returned to work with the employer in her pre-injury job working at a conveyor belt sorting lumber eight hours per day.  According to her testimony, this work caused her hand to be sore and she requested that the employer put her on other duties for a few hours per day.  When this was denied, she quit work with the employer.  (T. 123-124.)

 

On September 23, 1999 the employee was seen by a qualified rehabilitation consultant (AQRC@), Elmer T. Nelson, for a rehabilitation consultation.  Mr. Nelson determined that the employee was a qualified employee for vocational rehabilitation.  He developed a rehabilitation plan and began providing services, at first mostly in the area of medical management.  (Exh. F.)

 

The employer and insurer filed a rehabilitation request on October 25, 1999, objecting to the finding that the employee was a Aqualified employee@ for rehabilitation services.  The issue was considered at an administrative conference, and on January 7, 2000 a compensation judge issued an administrative order determining that the employee was entitled to rehabilitation services.  The employer and insurer then filed a request for formal hearing.  (Judgment Roll.)

 

The employee was seen by another hand surgeon, Dr. William H. Call, on February 1, 2000, at the request of the employer and insurer.  Dr. Call rated the employee with a 5.06 percent whole-body permanent partial disability.  He agreed with the assessment of maximum medical improvement on April 23, 1998.  He had no recommendations for further care or treatment as he considered the functional range of motion in her index finger to be greater than what would result from a fusion or prosthetic joint.  He found no objective reason to restrict the employee=s activities, and agreed that she could work without restrictions.  (Exh. 1.)

 

Rehabilitation services had for the most part been placed on hold pending formal hearing, although some job placement and job search assistance was provided to the employee by the QRC and his partner, Kim Nelson.  In May 2000, the employee, on her own, found and started a job for a new employer, Minnesota Dehydrated Vegetables, at no wage loss.  The job regularly involves writing paper slips for 20-30 pallets per day, operating a forklift, and working on a Abag line@ filling 50-pound bags of products.  About once per month the employee disassembles mechanical parts in the employer=s grinding room, sprays them, and reassembles them.  The employee testified that this work causes hand spasms and increased swelling and soreness in her right hand.  She testified that the swelling and stiffness in her hand increases more towards the end of the work day and that she is concerned over her ability to grip a safety railing on steps she must climb to repeatedly dump boxes of product into a hopper.  (T. 92-102, 135-146.)

 

The matter came on for hearing before a compensation judge of the Office of Administrative Hearings on March 27, 2001.  Following the hearing, the compensation judge issued findings and order on May 23, 2001, finding that the employee was qualified for rehabilitation services.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

On appeal, this court must determine whether the compensation judge's  findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  Substantial evidence supports the findings if, in the context of the record as a whole, 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 the evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings must be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, "[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).  Factfindings may not be disturbed, even though this 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."  Id.   

 

Question of law.  The issues on appeal in this matter also involve the interpretation and application of case law to undisputed facts.  While this court may not disturb a compensation judge's findings of fact unless clearly erroneous and unsupported by substantial evidence in the record as a whole, Minn Stat. ' 176.421, subd. 1(3) (1992), a decision which rests upon the application of the law to undisputed facts involves a question of law which this court may consider de novo.

 

DECISION

 

"Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability."  Minn. Stat. ' 176.102, subd. 1(b).  In order to be eligible for rehabilitation services, an injured employee must be deemed a "qualified employee."  See Minn. R. 5220.0130, subp. 1.  "Qualified employee" is defined in Minn. R. 5220.0100, subp. 22, as follows:

 

Subp. 22.  Qualified employee.  "Qualified employee" means an employee who, because of the effects of a work‑related injury or disease, whether or not combined with the effects of a prior injury or disability:

 

A.  is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of injury;

 

B.  cannot reasonably be expected to return to suitable gainful employment with the date‑of‑injury employer; and

 

C.  can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.

 

The compensation judge found that the employee is a "qualified employee" for rehabilitation services.  The employer and insurer appeal, arguing the employee, who was released to work without restrictions by several doctors, thereby fails to meet a legal prerequisite to rehabilitation services posited by Minn. R. 5220.0100, subp. 22, which defines a "qualified employee."  The employer and insurer further contend that substantial evidence fails to support a finding that the employee could not return to work in "usual and customary employment."

 

The compensation judge acknowledged the absence of written medical restrictions but found that the employee had ". . . established by a preponderance of the evidence that she has actual physical limitations of the index finger that prevents [sic] her from performing many activities and modifying nearly all her physical activities"  In so finding, the judge specifically accepted as credible the employee=s testimony about her right hand symptoms and the difficulties they had caused her in performing both her date-of-injury employment and her current post-injury job.  The compensation judge also accepted expert vocational testimony by the employee=s QRC regarding the safety issues in the employee=s current job related to her hand symptoms.  Based on these factors and the evidence as a whole, the judge found that the employee was permanently precluded from engaging in the job she held at the time of injury, that she could not reasonably be expected to return to suitable gainful employment with the date-of-injury employer, and that she could reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services.  (Findings 10, 11, 12.)

 

In their brief, the employer and insurer framed their appeal as presenting both a legal and a factual issue.  Both at the hearing below and at oral argument before this court, their primary argument was the legal issue regarding the interpretation of subpart (c) of the rule -- whether formal written restrictions by an employee=s treating physician are a legal prerequisite to a finding that the employee falls within the definition of a "qualified employee" quoted above so as to be eligible for rehabilitation services.  As their appeal on factual grounds is intertwined with the resolution of their legal issue on appeal, we first address the issue of law.^[1]

 

The employer and insurer specifically point to the language of Minn.R. 5220.0100, subp. 22(c), which requires that "the treating physician=s opinion of the employee=s work ability" be "considered" in determining whether an employee can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services.  They argue, in effect, that this language constitutes a requirement that an employee be subject to specific formal written medical restrictions in order to be eligible for rehabilitation services.  They further point to the March 4, 1999 Report of Work Ability signed by Dr. Chun; to the April 23, 1998 work release without restrictions by Dr. Jenkins; and to the opinion of their medical examiner, Dr. William H. Call, who on February 1, 2000 examined the employee and rendered the opinion that she could work without restrictions.  Accordingly, they argue, the compensation judge committed an error of law in finding that the employee was a "qualified employee" under the rule.

 

It is well-established that, as a general rule, an employee=s credible testimony alone constitutes sufficient evidence to support a compensation judge=s finding that the employee has a disability which restricts or limits that employee=s ability to perform work.  See, e.g.,  Brening v. Roto-Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975) (compensation judge may rely upon  an employee=s testimony to determine the severity of the employee's symptoms and the limitations thereby placed upon the employee=s physical activities).  More specifically, in the context of an employee=s right to a rehabilitation consultation, this court has held repeatedly that the question of  whether an employee has sufficient restrictions or limitations to justify consideration of rehabilitation in a rehabilitation consultation is a question of fact committed to the compensation judge, who may rely on the testimony of the employee about his or her ability to work following the injury, both where there has been an unrestricted authorization to return to work and no health provider or physician has issued restrictions on the employee=s ability to work.  See, e.g., Frazier v. RNW Assocs., slip op. (W.C.C.A. Sept. 30, 1999);  Carlson v. Northland Paper Supply, slip op. (W.C.C.A. Jan. 8, 1999);  Dobson v. Northwest Mechanical Servs., slip op. (W.C.C.A. Sept. 9, 1999).

 

The specific language of Minn. R. 5220.0100, subp. 22(c), states only that the treating physician=s opinion of the employee=s work ability is to be "considered" in determining whether an employee can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services.  The rule does not explicitly state that an employee cannot be found eligible for rehabilitation services in the absence of specific written restrictions, nor does it state that written medical restrictions are the only evidence which may be considered in assessing whether rehabilitation services are likely to be helpful in a return to suitable employment.  Had this construction been intended, we think explicit language to that effect would have been used, and we are unwilling to draw by implication a limitation which its drafters have not directly stated.  The compensation judge was clearly aware of and considered the treating physicians= lack of restrictions in this case, in addition to the other evidence presented, including the employee=s testimony.  We conclude that the judge=s finding as to subpart (c) of the rule was not an error of law. 

 

The employer and insurer conceded at the hearing below that subpart (b) of the rule, requiring that an employee cannot reasonably be expected to return to suitable gainful employment with the date‑of‑injury employer, was met in this case.  (T. 27.)

 

The employer and insurer argue, however, that even if the compensation judge did not commit an error of law, substantial evidence fails to establish that the other two subparts of the rule were met.  The employer and insurer note that the medical records did not contain a discussion of objective physical limitations showing that the employee was precluded from her pre-injury duties or that her post-injury employment was physically unsuitable.

 

The compensation judge=s findings relating to the requirements of subparts (a) and (c) of the rule are supported in the record chiefly by the employee=s testimony, although there was some additional support in the testimony of the QRC and in inferences reasonably drawn from the medical records and the compensation judge=s observation of the employee=s demonstration of the limitations on the use of her right hand at the hearing below.   The employer and insurer contend that such testimony is insufficient to constitute substantial evidence supporting the judge=s findings.  We have, however, already noted that case law is well-settled to the effect that a compensation judge may rely upon  an employee=s testimony to determine the severity of the employee=s symptoms and the limitations thereby placed upon the employee=s physical activities, since, as the supreme court noted in Brening, supra, 237 N.W.2d 383, an employee is the person most familiar with the severity of his or her symptoms and the limitations of the injury.  See also, e.g., Nelson v. Northern Milk Prods., 59 W.C.D. 518  (W.C.C.A. 1998); Pierce v. Minn. Mining & Mfg., slip op. (W.C.C.A. July 18, 2001); Dobson v. Northwest Mechanical Servs., slip op. (W.C.C.A. Sept. 9, 1999).

 

The employer and insurer suggest that a distinction is to be drawn between this case and prior cases in which an employee=s testimony was held sufficient to support a finding of restrictions or limitations, despite an unrestricted medical release for work.  Specifically, they argue that an employee=s testimony is too subjective and self-serving to support a conclusion that the employee has limitations from the work injury unless corroborated by some further evidence, such as notations in the medical records which may fall short of formal restrictions but which specifically indicate, for example, that an employee should self-limit use of the injured member.  They contend that such further evidence was present in the cases cited above, but was absent in the present case.  We do not find such a distinction applicable here.  While some further corroborating evidence may have been present in some of the cases cited, in none of them did we hold that such corroboration was required to justify reliance on an employee=s testimony, and we do not here adopt such a limitation on a compensation judge=s reliance on credible testimony.  Further, even were we to so hold, there was corroboration for some crucial portions of the employee=s testimony in this case.  As a significant example, we note that the employee=s testimony that her treating surgeon Dr. Jenkins advised her to self-restrict use of her hand at work as limited by pain is partly corroborated by his return to work slip dated February 11, 1998, which stated  "return to work without restriction - use R hand limited by pain."

 

In light of the evidence taken as a whole, and with deference to the compensation judge=s assessment of the employee=s credibility, we conclude that the compensation judge=s finding qualifying the employee for rehabilitation services must be affirmed.