AFAF KOUATLI, Employee/Appellant, v. OILDYNE and TRAVELERS INS. CO., Employer-Insurer, and MN DEP=T OF ECONOMIC SEC. and HEALTHPARTNERS, INC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 12, 2002

                                                                             

HEADNOTES

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee did not conduct any job search after November 16, 1999, the date she obtained a part-time job, and did not start working in the job until December 16, 1999, the compensation judge reasonably concluded the employee failed to establish the requisite connection between her work injury and her wage loss during that time period.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE; JOB SEARCH.  Although a diligent job search is not a prerequisite to an award of temporary partial disability where an employee is released to work full-time but works only part-time, it is a factor the judge may consider.  In this case, the employer and insurer=s expert also testified the employee had with­drawn from the labor market by attending school and working only part-time, was under­employed, and identified specific job areas in which the employee could have found full-time employment at no wage loss.  The denial of temporary partial disability benefits is therefore affirmed on other grounds.

 

MEDICAL TREATMENT & EXPENSES.  Where the employee made no claim that she had carpal tunnel syndrome or tendinitis as a result of her work with the employer, the compensation judge properly denied reimbursement for medical expenses related to treatment of these conditions.

 

Affirmed.

 

Determined by: Johnson, J., Pederson, J., and Wilson, J.

Compensation Judge: Kathleen Behounek

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that the employee=s earnings from November 16, 1999 through January 15, 2000, did not reflect her earning capacity and appeals the judge=s denial of temporary partial disability benefits.  The employee further appeals the compensation judge=s denial of HealthPartners= intervention claim.  We affirm.

 

BACKGROUND

 

Afaf Kouatli, the employee, sustained an injury to her shoulders and mid-back on August 1, 1997, an injury to her right shoulder on March 8, 1999, and an injury to her left thumb on October 8, 1999.  The employee worked for Oildyne, the employer, at the time of each of these injuries.  The employer and Travelers Insurance Company admitted liability for the employee=s injuries. 

 

The employee testified she sought medical care with Dr. Kaufmann at HealthPartners following the 1997 injury to her shoulders.  She stated the doctor prescribed medication and physical therapy.  On March 11, 1999, the employee saw Dr. Meghabhuti Roth at HealthPartners and reported a new shoulder injury at work.  The doctor diagnosed a right rhomboid strain, referred the employee to physical therapy and placed restrictions on her work activities.  On April 1, 1999, the doctor diagnosed work-related bilateral shoulder injuries.  On April 11, 1999, Dr. Roth noted the employee had tenderness in the bicipital notch in both shoulders.  The doctor diagnosed bilateral bicipital tendinitis and continued the employee=s physical therapy and work restrictions.  On June 11, 1999, the employee reported to the doctor complete resolution of her upper back symptoms since being placed on rotating job duties.  The doctor prescribed a continued home exercise program and continued job rotation duties.  The doctor stated that if her employer has any Aproblems maintaining these restrictions on a permanent basis, it is recommended that the patient and her supervisor contact this clinic to set up a conference call with this provider to discuss options for job rotation and other restrictions, etc.@  The doctor further recommended a work site evaluation to avoid further problems.  The doctor opined the employee had reached maximum medical improvement (MMI) as of June 11, 1999, with no permanent partial disability.

 

On October 21, 1999, the employee saw Dr. Diana Vakante-Jankovic with complaints of a work injury resulting in numbness in her fourth finger and pain in the left thumb which the employee related to repetitive motion at work.  The doctor diagnosed left thumb pain, most likely arthralgia and an upper thoracic sprain, aggravated by repetitive motions.  The doctor allowed the employee to return to work with restrictions including avoiding repetitive motions.  She returned to HealthPartners on November 12, 1999, and reported her upper back pain had almost completely resolved since being off work but the fourth finger numbness was still present intermittently.  Dr. Vakante-Jankovic ordered an EMG which was abnormal and compatible with lesions of both median nerves affecting the motor and sensory fibers in the wrist such as seen with carpal tunnel syndrome, the right being worse than the left.  After examining the employee and reviewing the EMG findings on December 9, 1999, Dr. Vakante-Jankovic referred the employee to an orthopedic surgeon. 

 

The employee saw Dr. Jonathan Asp on December 21, 1999.  The doctor diagnosed left trigger thumb and discussed injections and surgery with the employee.  They agreed the em­ployee would try a thumb splint and anti-inflammatory medication.  The employee returned to see Dr. Vakante-Jankovic on January 14, 2000.  The doctor prescribed Naprosyn, an anti-inflammatory, and continued use of the left thumb splint.  The doctor released the employee to return to work using a left thumb splint but otherwise without limitations.  The employee returned to see Dr. Asp on January 19, 2000, complaining of continued left thumb pain.  On examination, the doctor diagnosed a trigger finger of the left thumb with pain and catching.  He recommended a surgical release. 

 

On February 7, 2000, the employee saw Dr. Vakante-Jankovic reporting continued thumb pain and problems despite the splint and a reoccurrence of right upper back pain while working at Cub Foods.  The doctor diagnosed left thumb pain and bilateral carpal tunnel syndrome.  On February 18, 2000, the employee complained of left thumb pain and an onset of right hand pain.  The doctor diagnosed a new onset of right hand tendinitis related to overuse syndrome and bilateral carpal tunnel syndrome.  Dr. Vakante-Jankovic ordered hand therapy and amended her work restrictions to Ainclude avoiding grabbing food with the right hand.@

 

On March 17, 2000, the employee was examined by Dr. Mark B. Sigmond at the request of the employer and insurer.  The employee gave the doctor a history of her August 1997 shoulder injury, the reoccurrence of right shoulder pain on March 8, 1999, and her left thumb problems in October 1999.  The doctor reviewed the employee=s medical records and conducted a physical examination.  Dr. Sigmond concluded the employee sustained an injury to the right shoulder periscapular muscles on August 1, 1997 and a reinjury to the right shoulder on March 8, 1999.  The doctor concluded the employee reached MMI from the March 8, 1999 injury effective June 11, 1999.  Dr. Sigmond opined the employee had no work restrictions attributable to the August 1997 or March 1999 injuries other than to maintain a home stretching regimen of the shoulder muscles and continu­ed job rotation while doing heavy repetitive work with the right arm.  The doctor opined the em­ployee needed no further medical treatment for the August 1997 or March 1999 injuries, and rated no permanent disability for the employee=s right shoulder injuries.  Dr. Sigmond diagnosed a trigger thumb injury on October 8, 1999, affecting the employee=s repetitive gripping activities.  The doctor opined the October 1999 injury was not temporary as the employee had findings on physical examination relating directly to the flexor sheath of the thumb.  He stated the employee could work with a protective splint on her left hand.  Dr. Sigmond opined all the employee=s medical treatment to date was reasonable, necessary and causally related to her work injury.  He concurred with the recommendation for a surgical release for the employee=s left trigger thumb which he causally re­lated to the October 8, 1999 injury.

 

The employee returned to see Dr. Vakante-Jankovic on April 20, 2000, complaining of continued left thumb pain and an onset of right hand pain on January 21, 2000.  The doctor recommended the employee again discuss surgical treatment with Dr. Asp for her left thumb pain and diagnosed a new onset of right hand tendinitis related to overuse syndrome, bilateral carpal tunnel syndrome and right upper back pain.  The doctor released the employee to return to work, with restrictions.

 

Initially, the employee returned to work with the employer after her October 8, 1999 injury.  On October 20, 1999, the employee was terminated by the employer.  At some point after leaving Oildyne, the employee began attending classes at North Hennepin Community College.  The employee commenced a search for work and on November 16, 1999, obtained a part-time job with Cub Foods.  The employee did no further job search.  The employee did not start working for Cub Foods until December 16, 1999.  She was paid $7.10 an hour and generally worked between 12 and 20 hours per week.  In July 2000, the employee left Cub Foods and went to work for Finley=s Fine Jewelry, in Dayton=s Brookdale, again on a part-time basis earning $10.00 an hour.

 

L. David Russell, a qualified rehabilitation consultant (QRC), performed a vocational evaluation of the employee on September 22, 2000.  Mr. Russell obtained a personal and employ­ment history from the employee, reviewed her medical records, administered aptitude and com­prehension tests and prepared a report dated October 18, 2000.  Mr. Russell noted the employee obtained a high school diploma in 1999 and was currently attending North Hennepin Community College with a goal of a four-year accounting degree.  Mr. Russell opined the employee=s earning capacity was in the range of $6.00 to $18.00 an hour and identified jobs in the areas of assembler, production inspector, electronic assembler, general office clerk, retail sales clerk and teacher=s aide which were representative of the employee=s current employability.  He opined a wage loss should not be anticipated as a result of the employee=s reported work injuries and stated the employee=s current wage loss was as a result of her voluntary withdrawal from the full-time job market to attend school.  Mr. Russell stated the employee=s earnings at Cub Foods and at Dayton=s were not econo­mically suitable given her medical work capacities and vocational alternatives.  At the hearing, Mr. Russell testified the employee was underemployed. 

 

The employee filed a claim petition seeking payment of temporary total and tem­porary partial disability benefits together with medical expenses.  The case was heard by a com­pensation judge at the Office of Administrative Hearings on May 15, 2001.  In Findings and Order filed July 2, 2001, the compensation judge found the employee was entitled to temporary total dis­ability benefits from October 20, 1999 through November 16, 1999.  The judge further found the employee did not perform a reasonable and diligent job search for additional or full-time work after November 16, 1999.  The judge denied entitlement to temporary total/temporary partial disability benefits from November 16, 1999 through January 15, 2000.  The judge found the treatment charges paid by HealthPartners for medical services provided to the employee for her hand/wrist and carpal tunnel syndromes were not causally related to the employee=s work injuries.  The employee appeals the denial of wage loss and medical benefits.  Finally, the compensation judge found the employee was not subject to restrictions due to her work injury from and after January 16, 2000.  This finding was not appealed.

 

DECISION

 

1.  Wage Loss Benefits

 

The employee sought temporary total disability benefits from October 20 through December 15, 1999, and temporary partial disability benefits thereafter.  The judge awarded total disability benefits from October 20 through November 15, 1999.  The compensation judge found the employee failed to perform a reasonable and diligent search for additional or full-time employment after November 16, 1999 and denied the employee=s claim for wage loss benefits.  The employee contends the compensation judge improperly required proof of a reasonable and diligent job search as a prerequisite to an award of temporary partial disability benefits.  The employee contends the compensation judge=s denial of wage loss benefits is, therefore, clearly erroneous and seeks a reversal.

 

The concept of total disability is primarily dependent upon an employee's ability to find and hold a job, not the employee's physical condition.  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290 (1967).  As a general rule, an employee proves total disability by showing the unavailability of suitable work after a diligent job search.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  It is undisputed the employee ceased any job search after she obtained the job at Cub Foods on November 16, 1999.  She offered no explanation why she stopped her job search nor did she explain why she did not start working at Cub Foods until a month after the job offer.  Mr. Russell testified full-time work was available.  Given this record, the compensation judge could reasonably conclude the employee failed to prove a causal connection between her work injury and her wage loss.  The compensation judge=s denial of temporary total disability for the period November 16, 1999 through December 15, 1999 is, therefore, affirmed.

 

The employee worked part-time between December 16, 1999 and January 15, 2000.  Where an employee is released to work full-time but works only part-time, a reasonable and diligent job search is not a prerequisite to an award of temporary partial disability benefits but is merely a fact the judge may consider in determining whether an employee=s wage loss is causally related to the work injury.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  The sole finding and reason given by the compensation judge for the denial of temporary partial disability benefits is the employee=s failure to conduct a reasonable and diligent job search.  Were this the only evidence in the case, the employee=s position might well have merit.  Mr. Russell, however, testified the em­ployee was underemployed while working part-time for Cub Foods.  He further opined the employee had withdrawn from the labor market by working only part-time and attending school.  Finally, Mr. Russell identified specific job areas in which the employee could have found full-time employment at no wage loss.  This evidence supports the compensation judge=s denial of temporary partial dis­ability benefits and that finding is affirmed.

 

The compensation judge found the employee was not subject to work restrictions due to her injury from and after January 15, 2000.  Accordingly, the compensation judge denied temporary partial disability benefits.  See Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).  Although the employee argues this finding is unsupported by substantial evidence, the employee did not appeal the finding.  Accordingly, this court has no jurisdiction to consider the employee=s arguments.  Minn. Stat. ' 176.421, subd. 3(3).

 

2.  Medical Expenses

 

On April 23, 2001, HealthPartners petitioned to intervene in the case seeking reim­bursement of payments made to three medical providers.  The court awarded the intervenor=s claim for payments to Twin City Orthopedics, P.A. for services provided by Dr. Asp.  The court, however, denied the intervenor=s claim for payments to Rehab Partners, Inc. for the condition of tenosynovitis hand/wrist and the payments to HealthPartners for carpal tunnel syndrome.^[1]  The employee appeals the judge=s denial of the intervenor=s claim.  She contends Dr. Vakante-Jankovic opined the em­ployee=s carpal tunnel syndrome was work-related and points to the testimony of Dr. Sigmond that all of the employee=s medical treatment provided through March 17, 2000, was reasonable, necessary and causally related to her work injury.  The employee asks this court to reverse the compensation judge=s denial of the intervenor=s reimbursement claim.

 

On December 3, 1999, the employee underwent an EMG of the right hand at Health­Partners which demonstrated carpal tunnel syndrome.  This case involves three admitted injuries, two to the shoulders and one to the left thumb.  There was no claim the employee sustained carpal tunnel syndrome as a result of her work with the employer.  The compensation judge properly denied this reimbursement claim of the intervenor.  HealthPartners= payments to Rehab Partners, Inc. were in payment of physical therapy the employee received at NovaCare between February 22 and February 25, 2000.  On February 18, 2000, Dr. Vakante-Jankovic diagnosed a new onset of right hand tendinitis and ordered physical therapy.  Presumably, this is the treatment at Rehab Partners, Inc. for which the intervenor sought reimbursement.  There was no claim the employee=s right hand tendin­itis was a work-related injury.  Accordingly, the compensation judge also properly denied this claim for reimbursement.