LOUIS INDIHAR, Employee/Cross-Appellant, v. STATE, DEP=T OF COMMERCE, SELF-INSURED, Employer/Appellant, and BLUE CROSS/BLUE SHIELD OF MINN., ALLINA, INC., and MN DEP=T OF ECONOMIC SEC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 7, 2002

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee=s physician indicated that whether the employee would be able to return to work was Astill an open question,@ and the employee testified to the level of his disability from depression and pain during the period of claimed temporary total disability, the compensation judge=s award of temporary total disability as a result of a psychological disability was supported by substantial evidence.

 

CAUSATION - GILLETTE INJURY.  Where the employee agreed his work activity was sedentary, and the employer=s medical expert opined that such limited work activity could not have caused the shoulder problems complained of by the employee, the compensation judge=s denial of the employee=s claim that he sustained a Gillette injury as a result of his work from March to December 1999 is supported by substantial evidence.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employer=s medical expert opined that the employee had no objective symptoms related to his thumbs and had no permanent partial disability, the compensation judge=s determination was supported by substantial evidence and was not required to issue a Weber rating, although two other physicians offered opinions based on Weber v. City of Inver Grove Heights, 461 N.W.2d 918, 43 W.C.D. 471 (Minn. 1990).

 

Affirmed.

 

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

Compensation Judge:  William R. Johnson.

 

 

OPINION

 

STEVEN D. WHEELER, Judge

 

The self-insured employer appeals from the award of temporary total disability benefits for the period from December 6 through December 22, 2000.  The employee appeals from the compensation judge=s denial that the employee sustained a Gillette injury in the nature of bilateral shoulder conditions in October 1999.  The employee also appeals from the compensation judge=s denial of a permanent partial disability rating for the employee=s thumb and bilateral shoulder injuries.

 

BACKGROUND

 

The employee, Louis Indihar, graduated from high school in Gilbert, Minnesota, in 1970.  After a year at a junior college, the employee completed a bachelor of science degree in business with a major in accounting at the University of Minnesota in 1974.  Over the years he has also completed a number of computer programming classes and received an FMLI certificate.^[1]  He also studied to be a certified financial examiner and is within one credit of completion.  Following completion of college, the employee worked as an accountant for a life insurance company for nine years.  He then operated a small business for one year before joining Unisys as a general laborer and an administrative assistant from 1984 through 1991.  While at Unisys, the employee sustained injuries in the nature of a hernia (1985), and injuries to his right knee (1986) and right shoulder (1989).  In December 1991, the employee commenced work for the State of Minnesota, Department of Commerce, hereinafter the employer.  Initially he worked as an intermediate auditor, examining insurance companies. 

 

On November 16, 1993, the employee sustained admitted personal injuries in the nature of bilateral elbow, forearm and wrist problems arising out of his employment with the Department of Commerce.  In 1996, the employee was promoted to a position of financial institution examiner.  While so employed, on November 15, 1996, the employee developed a new injury to his bilateral thumbs.  At the time of his injury of November 16, 1993, the employee=s weekly wage was $712.40.  On the date of the November 15, 1996 injury his weekly wage was $774.40.

 

The employee attributed the November 1993 injuries to his forearms to using his computer at work.  The employee testified that his job required him to travel to the offices of insurance companies where he would examine their financial records.  He took along a portable computer.  His work involved paging through documents, handwriting and operating the computer.  The injuries were primarily treated with anti-inflammatories and a splint in January or February 1994.  The employee again complained of right elbow swelling and pain in both elbows in May or June 1994, which he associated with use of his computer at work. 

 

In April 1995, the employee filed a first report of injury alleging a bilateral upper extremity work-related injury.  He then began treating with Dr. John E. Harapat, M.D., who referred him for a functional capacities evaluation.  As a result of the FCE the employee=s use of a computer keyboard was reduced from four hours to three hours per day, but the employee noticed no improvement in his condition.  The employee treated with Dr. Harapat from April through August 1995, and then renewed treatment again on December 6, 1996.  On this latter occasion he reported that he was experiencing thumb pain which had begun on approximately November 15, 1996.  He attributed this pain to keyboarding, writing and turning pages.  A first report of injury concerning this injury was filed on December 9, 1996.

 

Thereafter, the employee was referred to a number of physicians and underwent physical therapy and diagnostic testing.  EMGs performed in mid January and July of 1997 were found to be normal.  In April 1997 the employee was provided with a trial dosage of an anti-inflammatory medication.  A rheumatologist recommended that the employee participate in a pain management clinic, which treatment the employee declined.

 

In June 1997 the employee sought treatment with Dr. David P. Falconer, M.D., of Metropolitan Hand Surgery Associates, who recommended another FCE.  This FCE, completed on July 16, 1997, indicated that the employee was found to be uncooperative with the evaluation procedures and did not complete all tests due to subjective pain reports.  The examiner indicated that she did not feel that the employee appeared to exert genuine effort and self-limited his performance.  She concluded that the results of the FCE were inconclusive.

 

The employee then sought another opinion from Dr. Jeffrey Husband, M.D., a hand specialist at Park Nicollet, in August 1997.  Dr. Husband opined that the employee had bilateral dorsal wrist pain, but did not indicate the cause of such difficulties. 

 

Between August 1995 and June 17, 1997, the employee continued to work within the restriction of no more than three hours of keyboarding per day.  On June 17, 1997, Dr. Harapat imposed a new set of restrictions which included no grasping, no pinching, no rotation of wrists and no keyboarding.  As a result of the imposition of these restrictions, the employee was unable to do the auditing work he had been doing since 1991 and he was instructed to report to the central office where he spent his time reading an auditing manual.  The employee continued in this position, with no loss of pay or benefits, until January 1998.  The employee, however, noted no improvement in his upper extremity complaints.  In November 1997, the employee underwent a bone scan at the recommendation of Dr. Falconer, the results of which appeared to be normal.  On November 18, 1997, Dr. Falconer administered a cortisone injection into the employee=s right wrist and thumb, which did not provide any appreciable improvement in his pain complaints.  The employee was last seen by Dr. Falconer on December 23, 1997, at which time he imposed additional restrictions of limiting pinching to ten to twenty times per hour.  The employee felt that he was not capable of performing even this physical activity, discontinued treating with Dr. Falconer and chose to continue treating with Dr. Matthew Putnam, the director of hand surgical services at the University of Minnesota.

 

In December 1996, the employee had began working with QRC Sandra Heinrich.  At the employee=s request, rehabilitation services were transferred to QRC Alden Bjorklund, with whom he first met in August 1997.  Mr. Bjorklund commenced working with the employee=s supervisor in October 1997, in order to identify a job within the employee=s restrictions with the employer.  The employer proposed consideration of a job as a Petrofund commerce analyst.  The QRC interviewed the head of the department and found him to be cooperative and sympathetic to persons with upper extremity difficulties.  The QRC reviewed the proposed position with the employee and testified that the employee=s initial reaction was that the work was no different than what he had previously been doing and that he had no interest in working in that department.  The QRC also met with a sales representative from a voice-activated software firm.  It was determined that the voice-activated software would be helpful in eliminating 90% of the hand activities necessary in the Petrofund analyst job.  The QRC then met with Dr. Falconer on December 23, 1997, to review the position.  Dr. Falconer advised the employee that he should give the job a trial and that it would not make his condition worse.  He stated that his staff would be available to assist the employee in any way possible to accommodate the position.  The QRC then sent the R-32 proposal concerning the Petrofund job to Dr. Harapat for his approval.  Dr. Harapat advised, in his letter dated January 22, 1998, that he agreed that the employee should try the position on a trial basis.

 

Initially the employee indicated that he felt the job was not physically suitable for him, but following a meeting with a representative of the Department of Commerce on January 7, 1998, the employee was formally offered the position of Petrofund analyst on January 8, 1998.  The employee accepted the position on January 21, 1998, and reported for work on January 26, 1998.  On that date the employee met with his supervisor, Robin Brown, for approximately an hour.  He was then given reading material consisting of approximately 50 pages of statutes, rules and regulations.  The employee returned to work on January 27 and continued with his reading of the materials.  The employee then returned to work on January 28 but apparently left, leaving a medical leave slip on the desk of the personnel director indicating that he would be absent after 2:30 p.m. for a medical appointment.  During the three days he was at work he was not required to do any keyboarding.  In addition, at no time did the employee offer any complaints of pain or discomfort to his supervisor or to his fellow employees.

 

The employee sought treatment from Dr. Harapat on January 28, 1998.  Dr. Harapat advised the employee that he thought he should continue working.  The employee called in sick on January 29, without indicating a reason.  Thereafter, the employer requested a doctor=s statement or some explanation for his absence from work. 

 

Prior to reporting to work at the Petrofund the employee sought treatment from a psychologist, Mr. John Huffaker, M.A., L.P., with whom he had worked on a number of occasions, the first being in 1988.  He was seen by Mr. Huffaker on January 15, 1998.  At that time he complained of pain in his right thumb and wrist and that his fingers were numb.  He stated that he was anxious about this pain.  The employee was again seen by Mr. Huffaker on January 21, 1998.  Mr. Huffaker=s notes indicate that the employee was preoccupied with pain and was depressed about his pain.  The employee was then again seen by Mr. Huffaker on January 29, 1998, complaining that his work activities caused intense pain in his hands.  Mr. Huffaker=s notes indicate that the employee stated that as a result of his pain he could not concentrate and felt anxious and wanted to leave the work site.  He stated to Mr. Huffaker that he was unable to let go of the pain until he went to bed.

 

As a result of these initial visits, Mr. Huffaker provided the employee with a number of letters indicating that the employee was unable to work.  In the first letter, dated February 5, 1998, Mr. Huffaker made the following comments: 

 

Since our initial meeting January 15, 1998 I have concluded that you have a medical condition and psychological factors that have significant roles in the maintenance of your physical pain.  A DSM-IV diagnosis of 307.98, Pain disorder associated with both psychological factors and a general medical condition, is appropriate here.  It also appears clear that you presently feel unable to perform the duties of your job due to your current level of pain.

 

In a letter dated February 20, 1998, Mr. Huffaker made the following comments:

 

I am responding to the 2/18/98 letter from Ms. Kathleen Lilly, the personnel director at your employer, regarding her comment about my 2/5/98 letter to you.  In that letter I indicated you have a DSM-IV diagnosis of 307.98, Pain disorder associated with both psychological factors and a general medical condition.  I also indicated that Ayou presently feel unable to perform the duties of your job due to your current level of pain.@

 

In her 2/18 letter, Ms. Lilly has indicated that I have not supported the claim of your inability to work in my letter.  In fact, I do believe you have been unable to work and will be unable to work for at least another six weeks from this date.  At that point, around 4/3/98, I will again review the status of your psychological condition and ability to work.

 

Mr. Huffaker thereafter issued letters on April 3, 1998, May 4, 1998, June 5, 1998, and July 3, 1998, continuing to certify that the employee had a pain disorder which had been significantly contributed to by his hand/thumb condition and which caused him to be unable work.  In a January 27, 1999 letter, Mr. Huffaker summarized his opinion and the course of treatment of the employee with the following statements:

 

Mr. Indihar=s initial meeting with me was 1/15/98.  At that time, he reported suffering from tinitis [sic], hyperacusis and repetitive stress injury.  He said he had pain in his right thumb that moved from his wrist to his thumb, that his fingers were numb and that he was unable to work.  He said he felt a loss of everything in his life and felt as if he were 65 years old.  He reported occasional thoughts of suicide, with no plan of action.  He was experiencing a lot of anxiety about his pain and his future.

 

In subsequent meetings, Mr. Indihar elaborated on his condition.  He stated that the pain and numbness in his hands, especially his thumb area, caused him to lose concentration at work, that he would feel anxious and nauseous and would want to flee his work setting.  He reported that anything he would do at work triggered the pain, that he experienced anxiety constantly while at work, and that the whole day would revolve around his pain. He felt hopeless, helpless and thoroughly despairing about his condition and the significant anxiety accompanying it.

 

Based on the information he provided me, I gave him a diagnosis of 307.98, Pain disorder associated with both psychological factors and a general medical condition, and certified him unable to perform his job duties.

 

Following his initial session with me, Mr. Indihar saw me weekly for several months, eventually cutting back to every other week.  Our work together has been to help him find some acceptance for his condition and to find some hope and direction for his life.  Overall, he continues very discouraged about the condition of both his hands and the state of his life and focuses much of his attention on his pain.  He experiences persistent anxiety, deriving both from his relationship with his pain and the generally negative outlook he has for his life.

 

On July 7, 1998, Mr. Huffaker indicated, in a form apparently related to the Family Leave Medical Act of 1993, that the employee would be unable to work until at least July 14, 1998.  The reason given was the same one tendered in his earlier letters.

 

On July 14, 1998, the employee underwent surgery to stabilize the right thumb carpometacarpal (CMC) joint.  He was released to return to work on July 20, 1998, with restrictions of no right arm activity for at least four weeks.  Eventually the employer received a release to return to work from Dr. Harapat which indicated that the employee could return with restrictions effective October 6, 1998.  These restrictions included limited overuse of the left hand, use of a splint on the right hand, working with his hands two to three minutes at a time, up to eight to ten times per hour, right hand pinch/grasp five to ten times per hour, lift/carry five to ten times per hour and to avoid repetitive turning of pages.  The employee starting doing Aresearch activities@ in connection with a job search in October 1998 but did not commence an actual job search until December 28, 1998.  (T. 101, 186-87.)  When the employee was initially released to return to work in October 1998, no jobs were available with the State of Minnesota, Department of Commerce.  Subsequently a position in the Petrofund program became available in February 1999.  Eventually the employee returned to work in that position on March 8, 1999.

 

In November 1998, the employee filed a claim petition seeking temporary total disability benefits from January 28, 1998, to the present and continuing, and medical benefits.  On December 30, 1998, the self-insured employer requested a formal hearing regarding a rehabilitation dispute. 

 

On March 2, 1999, the employee was evaluated by psychiatrist Dr. John Rauenhorst, M.D., at the request of the self-insured employer.  Dr. Rauenhorst diagnosed anxiety disorder not otherwise specified, history of alcohol abuse and/or chemical dependency, and history of possible marijuana and/or other drug use and dependency.  Dr. Rauenhorst indicated that the employee=s anxiety disorder was a result of several factors, including the employee=s genetic makeup, abuse by his mother as a child, his basic personality, his problems with alcohol and other substances and a history of problems with relationships with women.  He stated that the employee did not need any future psychiatric or psychological care and that only a few sessions with Mr. Huffaker would have been reasonable.  He stated that the employee=s work activities and his hand and wrist injuries were not a substantial contributing factor to his psychological condition during the period after January 28, 1998.^[2]

 

The position that the employee returned to on March 8, 1999 at the employer was as a financial institution examiner for the Petrofund program.  His responsibilities were to determine eligibility for reimbursement of costs for the clean-up of petroleum leaks from underground storage tanks.  In this work, which was sedentary in nature, the employee was required to review documents, make notes, work on a computer and answer the telephone.  He also was required to handle files which could range from half an inch in thickness to eight inches in thickness.  On approximately October 7, 1999, the employee indicated that he began to experience pain in both shoulders.  (T. 49-50.)  On October 11, 1999, he notified his supervisor that he had shoulder injuries in both shoulders resulting from his work activities.  On November 3, 1999, the employee=s QRC, Ronald Larson, conducted an on-site ergonomic analysis of the employee=s work site.  Mr. Larson indicated that there were a number of difficulties with the employee=s work station and recommended certain modifications.  Mr. Larson testified that the employee=s job was not physically suitable without the modifications.  The employee was terminated from his position on December 3, 1999, because he was unable to process a sufficient number of applications to satisfy the requirements of the job.  His notice of termination indicated that his previous level of productivity, which was 50% of what was normally expected, had been reduced further to only 10% of what was normally required.  (Pet. Ex. JJ.)

 

Following his termination from employment, the employee initiated a job search with the help of his QRC but was unable to find employment.  (Pet. Ex. KK; T. 83-85.)  The employee first sought medical assistance for bilateral shoulder complaints on October 11, 1999, when he was seen by a nurse practitioner at the Boynton Health Service.  At that time, he indicated that he had developed Aburning@ in both of his shoulders when he was working at his desk the previous week.  (Pet. Ex. L.)  The employee next was seen by Dr. Sharyn Barney, M.D., at the Boynton Health Service with similar complaints.  Dr. Barney recommended ice treatment, walking and pendulum exercises.  She noted significant muscular atrophy and referred the employee to orthopedic surgery for a consultation.  (Pet. Ex. L.)  On November 15, 1999, the employee was seen by Dr. Robert LaPrade at the University of Minnesota Orthopedic Department, complaining of aching pain in both of his shoulders.  He stated that the pain was constant but generally worse with forward reaching activities, which included typing on the computer and turning pages at work.  (Pet. Ex. A.)

 

Dr. LaPrade eventually performed right shoulder surgery on March 3, 2000, and indicated that the employee was totally disabled from gainful employment from March 3, 2000 until May 2, 2000.  Dr. LaPrade found synovitis anteriorly in the glenhumeral joint, which he debrided.  The employee also had mild grade 1 chondromalcia of the humeral head, a degenerative tear of the anterior aspect of the glenoid and an unstable SLAP lesion, type II variant on the superior aspect of the glenohumeral joint.  Dr. LaPrade noted that this was not present on the employee=s prior MRI, and opined that,

 

While it cannot be proven in retrospect, my belief is that he probably sustained a SLAP lesion in his right shoulder prior to this time, and that the quality of the MRI scans in evaluation of his right shoulder 10 years ago was not sufficient to pick up the SLAP lesion.  In fact, without the use of an intra-articular contrast agent, such as gadolinium-injected dye, we still find a lot of difficulty in identifying SLAP lesions on MRI scans, even using today=s more advanced MRI scanners.

 

(Pet. Ex. A.)  Thereafter, he released the employee to return to work with limitations.  In his November 4, 2000 report, he indicated that the employee had a 1% permanent partial disability rating of the right shoulder and provided lifting and repetitive use restrictions as a result thereof.  (Pet. Ex. A.)

 

As a result of continuing complaints of left shoulder pain, Dr. LaPrade ordered a left shoulder MRI, which was conducted on January 5, 2001.  This diagnostic test indicated that the employee had several abnormalities.  (Pet. Ex. B.)  At the time of hearing, Dr. LaPrade was recommending left shoulder surgery.  (Pet. Ex. A.)

 

Throughout 1999, the employee was seen at the Fairview Pain Management Center.  Dr. Struve noted, on April 28, 1999, that the employee=s main complaint was functional weakness in his forearms with his job.  Dr. Struve found no problems with reflexes or muscle atrophy and recommended ongoing counseling.  The employee was seen for counseling in May and June 1999.  On June 30, 1999, Dr. Struve noted that the employee had tried antidepressent medication for about one month, without feeling that it had helped.  He also noted that the employee had not increased his dose as had been suggested.  The employee indicated to Dr. Struve that while he did not feel he was depressed he had no hopes for the future.  Dr. Struve recommended that the employee continue to see Dr. Patrick O=Laughlin for several more sessions.

 

On July 14, 1999, Dr. O=Laughlin indicated that the employee was having difficulties with grasping and with sensitivity to work stress.  The employee also suffered from hearing sensitivity.  On December 6, 1999, shortly after the employee had been terminated, Dr. O=Laughlin reported that the employee was complaining of a continuation of his similar levels of pain, although he had been having more difficulty in his work situation.  Dr. O=Laughlin=s only treatment recommendations were to see the employee on a monthly basis to deal with adjustment and vocational issues.  (Pet. Ex. BB.)

 

On January 10, 2000, Dr. O=Laughlin noted that the employee was having some active depression in response to his job loss, as well as anxiety about the future.  The employee continued to be seen by Dr. O=Laughlin, almost monthly, through November 2000 for assistance with pain management and vocational adjustment.  In his report of October 23, 2000, Dr. O=Laughlin indicated that he was concerned about the employee=s degree of social isolation and encouraged him to maintain contact with people.  He noted that the employee=s decrease in psychological functioning was directly related to his difficulty in maintaining his earlier work performance and concluded that the employee would need continuing psychological care and support.  He stated that Athe question as to whether he would be able to return to work is still an open question in my mind.  My hope would be that he would be able to return to work in some capacity if his pain symptoms are better controlled.@  (Pet. Ex. BB, 10/23/00 letter, p. 2.)  Dr. Rauenhorst performed a follow-up psychiatric/psychological examination at the request of the employer and insurer on August 15, 2000.  Dr. Rauenhorst indicated that he would not place any restrictions on the employee=s work activities as a result of his psychiatric condition from March 8, 1999 to the date of his examination.  He stated that work would likely be beneficial to help the employee deal with his anxiety and his pain disorder.  He indicated that the employee could be working full time, from a psychiatric standpoint.  (Resp. Ex. 1, tab 2.) 

 

Dr. Peter Daly, an orthopedic shoulder specialist, examined the employee at the request of the employer and insurer on August 24, 2000.  Dr. Daly reviewed all of the employee=s medical records and a summary of the employee=s August 2, 2000 deposition.  He stated that the employee=s shoulder condition was not related to his work activities for the employer between March 8, 1999 and December 3, 1999.

 

The employee=s November 1998 claim petition and December rehabilitation request were heard by a compensation judge at the Office of Administrative Hearings on June 24, 1999.  In Findings and Order served and filed on September 10, 1999, the compensation judge found that the employee had established by a preponderance of the evidence that his bilateral thumb injuries arose out of his employment, culminating in November of 1996.  He also found that the employee=s psychological condition was work-related and awarded him temporary total disability benefits from January 28, 1998 through July 13, 1998, from July 14, 1998 through October 19, 1998, and from December 18, 1998 through March 8, 1999.  The employee=s claim for temporary total disability benefits was denied for the period October 20, 1998 to December 18, 1998, as a result of a lack of a diligent job search.  The employee=s request for change of QRC away from Mr. Bjorklund was granted.  Medical expenses for services rendered by Mr. Huffaker were approved.  The self-insured employer appealed from the finding of primary liability for the psychological injury, the award of temporary total disability benefits from January 28, 1998 through July 13, 1998, and the award of Mr. Huffaker=s expenses.  By decision of April 24, 2000, this court affirmed the findings and order of the compensation judge.  Indihar v. State of Minn., Dep=t of Commerce, slip op. (W.C.C.A. Apr. 24, 2000).

 

On May 17, 2000, the employee filed a new claim petition, seeking temporary total disability after December 6, 1999, based on his claim of bilateral upper extremity and shoulder injuries and psychological disability.  The employee also requested payment of medical benefits and retraining.  On December 19, 2000, the employee filed an amended claim petition, alleging entitlement to permanent partial disability.  The matter came on for hearing before a compensation judge at the Office of Administrative Hearings on January 19, 2001.  The compensation judge determined that the employee had not sustained a Gillette injury to his shoulders culminating in October 1999, that he was not entitled to a permanent partial disability rating for his thumb problems or shoulder difficulties, and that all medical expenses related to treatment of his shoulder injuries, including those made by intervenors, were not awardable.  The judge did award temporary total disability benefits from December 6 through December 22, 1999, on the basis that the employee had sustained a psychological injury which made him unable to work after December 6, 1999.  The judge determined that benefits should stop on December 22 pursuant to Minn. Stat. ' 176.101, subd. 1(k), the 104-week cap.  The employee appeals from the denial of the Gillette injury and the denial of permanent partial disability.  The employer appeals from the award of temporary total disability.

 

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

 

1.  Temporary Total Disability

 

The employer appeals from the compensation judge=s award of temporary total disability benefits from December 6 through December 22, 1999, on the basis that the compensation judge=s decision is without support in the record and is clearly erroneous.  The employer=s principal argument is that the employee was not disabled from work because of his psychological condition.  The employer contends that work would have actually aided the employee=s condition and that no medical testimony supported a complete cessation of work activity.

 

The compensation judge based his decision that the employee was unable to work as a result of his psychological condition on the medical opinions of Dr. O=Laughlin.  We believe that there is adequate information and opinion evidence in Dr. O=Laughlin=s records to support the compensation judge=s determination.  We do not believe that the judge=s reliance on Dr. O=Laughlin=s opinion are misguided.  In his report of October 23, 2000, Dr. O=Laughlin stated as follows:

 

I would see this man as needing some continued psychological care and support.  There is no question that he suffers from increased symptoms of depression in response to his pain and limitations, which has been ongoing.  The question as to whether he would be able to return to work is still an open question in my mind.  My hope would be that he would be able to return to work in some capacity if his pain symptoms are better controlled.

 

We do not think that the compensation judge was unreasonable in finding that this opinion supported a conclusion that the employee was unable to work as a result of psychological problems, namely depression and chronic pain syndrome.  As a result, the compensation judge=s award of temporary total disability based on the effects of the employee=s psychological condition is supported by substantial evidence in the record and is hereby affirmed.

 

2.  Gillette Injury

 

The compensation judge determined that he was not persuaded that the employee had sustained a Gillette-type injury to both of his shoulders as a result of his work with the employer, culminating on October 11, 1999.  As a result, he denied any permanent partial disability benefits as a result of the shoulder conditions and denied the payment of any medical expenses related to the treatment of the employee=s shoulder conditions.  The employee appeals from this determination on the primary basis that the medical opinion of Dr. Daly, upon which the compensation judge relied, was not supported by adequate foundation.  (EE brief at p. 21.)  In addition, the employee relies on the opinion of Dr. LaPrade, that the employee=s shoulder conditions were the result of the employee=s work activities. 

 

Dr. Daly, the employer=s expert, opined that the employee=s work activities were not substantial and did not significantly contribute to his shoulder symptoms and difficulties.  In addition, the employer contends that the employee=s SLAP lesion was caused by some trauma other than what might have been encountered at his workplace.  It argues that the SLAP lesion most likely originated during the period from 1989 to 1992 as supposed by Dr. LaPrade.

 

Then there is a dispute between medical experts, the compensation judge=s determination shall be affirmed by this court unless there is some question about the foundation of the opinions upon which he relied.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  In this case, it is clear that Dr. Daly=s and Dr. LaPrade=s opinions fully support the compensation judge=s determination that it was more likely than not that the employee=s shoulder conditions were not related, in any substantial way, to his sedentary work activities.  The judge made a full analysis of the types of activities the employee was engaged in and related these to the findings made by the medical experts.  There is no basis to conclude that Dr. Daly=s opinion was poorly founded, as it appears that he had access to all of the relevant information necessary to draw conclusions, including the employee=s medical records and his deposition testimony regarding his job duties.  While it is true that Dr. Daly did not have access to the January 5, 2001 left shoulder MRI, which was conducted after his August 2000 examination, he had opined that the type of condition disclosed by the MRI, which was similar to the condition found by Dr. LaPrade during surgery on the employee=s right shoulder in March 2000, would not have been caused by the employee=s sedentary work activities for the employer.  Since Dr. Daly had found the right shoulder condition to have been unrelated to the employee=s work activity, the failure to have seen the MRI is not considered a material foundational problem.  The compensation judge was not unreasonable in adopting Mr. Daly=s opinion.  As a result, the compensation judge=s denial of any liability associated with the employee=s shoulder difficulties, including the permanent partial disability rating, medical expenses, and wage loss benefits, is affirmed.

 

3.  Permanent Partial Disability - Thumbs

 

The compensation judge found that the employee had not established by a preponderance of the evidence that he had sustained any permanent partial disability of the body as a whole as a result of his work-related thumb problems.  In making his determination, the compensation judge apparently relied on the opinion of Dr. Daly, who opined that the employee had no objective indicia of a permanent partial disability to his thumbs.

 

The employee appeals on the basis that the employee is entitled to a permanent partial disability rating pursuant to the Weber decision of 8.5% of the whole body.^[3]  This position was supported by the opinion of Dr. Matthew D. Putnam, M.D.  The opinion of Dr. Putnam, however, was contradicted by the opinion of Dr. Daly that the employee had no objective findings and was entitled to no rating for this thumb difficulties and by the opinion from Dr. LaPrade that the employee was only entitled to a 1% disability rating for a chronic bicipital tendon rupture, which he indicated was the next most similar condition to the employee=s actual difficulties.

 

In cases where the compensation judge is required to resolve disputes between medical experts, his resolution will be affirmed unless he relied on unfounded medical opinions.  As it appears that all of the medical opinions in this case are properly founded, we affirm the compensation judge=s selection of Dr. Daly=s opinion with respect to the lack of permanency related to the employee=s thumb injuries.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).