THOMAS O. MELARTIN, Employee/Appellant, v. MAVO SYS., INC., and CREDIT GENERAL INS. CO./MIGA, adm=d by GAB ROBINS, INC., Employer-Insurer, and MN DEP=T OF LABOR AND INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 21, 2002

                       

HEADNOTES

 

REHABILITATION - ELIGIBILITY.  Substantial evidence, including expert vocational testimony, supports the compensation judge=s denial of rehabilitation benefits as the employee was not, at the time, able to benefit from rehabilitation services due to his significant emotional problems.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s conclusion that the employee=s work injury was not a substantial contributing cause of his current inability to work.

 

Affirmed.   

 

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

Compensation Judge: Jennifer Patterson

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s denial of temporary total disability benefits from August 12, 2000 and continuing, and the judge=s denial of rehabilitation services.  We affirm.

 

BACKGROUND

 

Thomas O. Melartin, the employee, sustained an admitted bilateral carpal tunnel injury, culminating on October 21, 1996, while working as an asbestos removal worker for Mavo Systems, Inc., the employer.  Carpal tunnel release surgery was performed by Dr. Elmer Salovich on February 20, 1997 on the left hand and on March 11, 1997 on the right hand.  Following the surgeries, Dr. Salovich released the employee to return to work, restricting him from strenuous or repetitious use of his hands and wrists.  Dr. Mark Holm later examined the employee at the request of the employer and insurer.  Dr. Holm provided restrictions of no prolonged periods of repetitive pinching, gripping or grasping or the prolonged use of vibrating power tools, power sprayers or air wrenches. 

 

The employee returned to light-duty work with the employer and did well initially.  Un­fortunately, when he returned to asbestos removal duties, his symptoms recurred.  The employee ceased working for the employer in August 1997.  He then worked for ABM Janitorial Services from November 23, 1997 through June 6, 1998.

 

The parties disputed the employee=s entitlement to ongoing workers= compensation benefits, and hearings were held on August 13 and September 3, 1998.  In a Findings and Order issued on October 22, 1998, the compensation judge found the employee was permanently precluded from engaging in his pre-injury occupation as an asbestos abatement worker, and ordered the employer and insurer to provide rehabilitation services to the employee.

 

The employee began working with a qualified rehabilitation consultant (QRC), Thomas Saby, on December 7, 1998.   Following completion of vocational testing, a job search was initiated. The employee obtained three job offers between March and August 1999, but was unable to retain any of the jobs for any length of time.  Medically, on January 14, 1999, Dr. Salovich examined the employee, diagnosed recurrent CTS and recom­mended repeat surgery for worsening hand and wrist symptoms on the right.

 

The parties again disputed the employee=s entitlement to workers= compensation benefits, and various claims were heard by a compensation judge on December 1, 1999.  In a Findings and Order issued on January 19, 2000, the compensation judge approved the employee=s request to pro­ceed with right wrist surgery.  The judge also found the employee failed to cooperate with rehabili­tation and failed to conduct a reasonably diligent job search between February 3 and December 1, 1999.  In an un­appealed finding, the com­pensation judge further found the employee had a twenty- year history of chemical depen­dency on alcohol.  The judge recited the employee=s post-injury vocational history and QRC Saby=s testimony that the problem was not finding jobs within the employee=s restrictions, but the employee=s ability to retain the jobs he obtained.  The QRC agreed that the employee was more likely to be able to hold onto a job if he had treatment for alcohol depen­dence. Based on this evi­dence, the compensation judge concluded the employee was not likely to benefit from ongoing vocational rehabilitation, and granted the em­ployer and insurer=s request to suspend rehabilitation services.

 

On February 25, 2000, Dr. Salovich performed a right wrist carpal tunnel release with neurolysis of the median nerve.  The employee de­veloped a serious infection in the surgical wound, requiring another surgery, performed by Dr. Salovich on March 9, 2000, to clean, debride and reclose the wound.  The employee was released to return to light-duty work on April 21, 2000, with restrictions of no strenuous or repetitive use of the right hand and arm and no heavy lifting with the right hand and arm. 

 

The employee voluntarily entered Burkwood Residence, an inpatient chemical dependency treatment facility in Burkhart, Wisconsin, on May 8, 2000.  He completed the program and was discharged from the facility on August 11, 2000.  He secured transitional housing at Smith Lodge in Plymouth, Minnesota, shortly there­after and continued to reside at the group home through the date of hearing.

 

Without alcohol, the employee experienced feelings of extreme anxiety, social phobia, worthlessness, panic attacks and depression.  He was seen at the Crisis Intervention Center at Hennepin County Medical Center (HCMC) on September 14, September 18, October 5 and October 18, 2000 for treatment of depression and anxiety.  He was referred to Hennepin Faculty Associates (HFA) and a psychiatric intake was com­pleted on October 20, 2000.  The employee reported a history of emo­tional problems following a serious head injury when he was eleven, which he had self-medicated with alcohol since his late teens.

 

  The em­ployee began treating with a psychiatrist on the staff at HFA, Dr. Robert Werner, who first saw the employee on November 2, 2000.  Dr. Werner provided medication management, adjusting doses and changing medications to try to control the employee=s psychological and emotional symptoms.  ­Although the employee was encouraged from the beginning to attend psychothera­py, he was unable to sufficiently overcome his anxiety and social phobias to get to therapy until the end of March 2001.  The employee continued to treat with Dr. Werner and Lisa Legrand, a psycho­therapist, through the date of the hearing on May 24, 2001.

 

The employee returned for follow-up with Dr. Salovich on December 11, 2000 and February 28, 2001.  The employee reported continuing right hand symptoms, including numbness and increased stiffness, loss of sensitivity and aching with cold weather.  Dr. Salovich diagnosed bilateral CTS with persistent parathesias, particularly in the right hand.  The employee was provided with Physiotherm splints, and was advised to avoid stress or strain and repe­titive use of his hands.

 

On April 11, 2001, the employee was re-examined by Dr. Holm at the request of the employer and insurer.  Dr. Holm noted positive Tinel=s sign and slightly diminished sensation in the median nerve distribution of the right hand.  He diagnosed work-related CTS and recommended permanent restrictions to avoid repetitive firm pinching, gripping or grasping with either hand, avoid vibrating power tools especially with the right hand, and avoid working with his hands unprotected in temperatures below freezing.

 

Sometime after his discharge from Burkwood, the employee sought rehabilitation assis­tance but was in­formed his QRC could not provide help because the insurer had sus­pended rehabili­tation benefits.  On March 8, 2001, the employee contacted the Vocational Rehabili­tation Unit at the Department of Labor and Industry.  QRC Saby withdrew from the case and closed his file as of April 20, 2001.   Ms. Wilkman then completed a Rehabilitation Consultation Report on May 4, 2001, con­cluding the em­ployee could be expected to return to gainful employment through vo­ca­tional reha­bilitation, based on Dr. Salovich=s report of work ability, and was eligible for rehabili­tation services.

 

Lynn Hjelmeland, a rehabilitation counselor, completed a Vocational Assessment Report dated April 20, 2001, at the request of the employer and insurer.  Ms. Hjelmeland concluded that the employee was currently unemployable in the competitive labor market due to his sig­nificant psycho­logical and emotional problems.

 

The employee filed a claim petition seeking temporary total disability benefits from August 12, 2000 and continuing, and re-initiation of vocational rehabilitation services.  The employer and insurer denied further liability, asserting the employee had failed to make a diligent search for work; that if the employee was totally disabled, it was due to unrelated emotional prob­lems; and that the employee was not likely to benefit from rehabilitation services due to his significant psycho­logical problems.  The case was heard by a compensation judge at the Office of Administrative Hear­ings on May 24, 2001.  In a Findings and Order, served and filed July 3, 2001, the compensation judge found the employee=s emotional problems, for which he was undergoing active treatment, were the cause of his current inability to look for work and find and hold a job.  She further held the em­ployee=s restrictions due to bilateral CTS were not a substantial contributing factor in his absence from the labor market, and denied the employee=s claim for temporary total disability benefits.  The compensation judge also denied rehabilitation services, concluding the employee was not currently able to benefit from rehabilitation services because of his significant emotional problems.  The employee appealed.

 

DECISION

 

1.  Rehabilitation Services

 

The employee contends that substantial evidence does not support the compensation judge=s determination that the employee would not, as of the date of hearing, benefit from rehabilitation services and her denial of rehabilitation benefits.  We disagree.

 

Following the employee=s discharge from inpatient treatment for alcohol dependency on August 11, 2000, he experi­enced severe anxiety, panic attacks, social phobia, depression and feelings of worthlessness.  He was seen in the Crisis Intervention Center at HCMC on four occasions from mid-September to mid-October 2000.  On November 2, 2000, the employee began treating with Dr. Werner, a psychiatrist at Hennepin Faculty Associates, who provided medications management.  The employee did not be­gin psycho­therapy treatment until March 29, 2001, due to his inability, as a result of his emotional problems, to get to therapy sessions.  On April 19, 2001, Ms. Legrand noted the employee had missed therapy the previous week and was late for that day=s session due to his high level of anxiety and his consequent difficulty getting to ap­point­ments.  On May 3, 2001, just three weeks before the hearing, Ms. Legrand noted the employee continued to struggle with anxiety and panic attacks, reporting the employee had arrived thirty minutes early so he could Apsych himself up@ and get himself to walk into the clinic office.

 

As of April 20, 2001, Ms. Hjelmeland, a rehabilitation counselor, opined that the employee was not, at that time, employable in the competitive labor market, stating:

 

[The employee] had a difficult time talking with me, and relating to me, and I certainly was aware of his problem.  He finds it difficult to communicate with the general public.  He is living in a sheltered environment and only goes to places where he is sure he will be welcomed . . . .  He is unable to take any rejection or criticism due to his frail psychiatric situation.  He takes significant psychiatric medica­tions and spends the bulk of his day coping with his depression and anxiety.  He takes incredibly long walks, up to seventeen miles per day, because he states that is the only way he can keep his emotional state in a stable place.  Virtually all the things that he does, is to keep himself from going over the edge mentally.  He is sleeping 12 to 14 hours per day and attending AA meetings.  . . . [The employee] is simply spending all of his energy coping with his mental health issues at this time.  

 

(Resp. Ex. 1.)  Ms. Hjelmeland interviewed the employee, performed vocational testing, and reviewed the em­ployee=s vocational rehabilitation and medical treatment records.  There was adequate foundation for her conclusions and the com­pensation judge did not abuse her discretion in relying upon Ms. Hjelmeland=s opinion.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. l985).  As observed by the com­pensation judge in her memorandum, however, the decision applies only to the time span from August 12, 2000 to May 24, 2001, and does not determine the employee=s entitlement to rehabilitation assistance in the future should his circumstances change.  We ac­cordingly affirm the compensation judge=s denial of rehabilitation services for the period in dispute, on the basis that the employee was not, at that time, capable of benefitting from such services.

 

2.  Temporary Total Disability

 

We first note the determinative issue in this case is causation.  Contrary to the con­tention of the em­ployer and insurer, an injured em­ployee is not required to seek and be denied employment as a prere­quisite to a finding of total disability if a job search would be futile.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 431-33 (Minn. 1978).  We have affirmed the compensation judge=s determination, relying on the opinion of the employer and insurer=s expert, that the employee was incapable of gainful employment during the period at issue.  In such circumstances, a job search would be futile.  The question, therefore, is not whether the employee made a diligent job search, but whether the employee=s inability to work was causally related to his work injury.

 

The compensation judge found the employee=s wrist restrictions were not significantly different from his restrictions at the time of the previous hearing, and concluded the employee was employable in the Twin Cities labor market based solely on his current wrist restrictions.  She further found the employee=s inability to work was due to his significant emotional problems, for which he was receiving active treatment, and that the Arestrictions on his activities because of his bilateral carpal tunnel syndrome were not a substantial contributing factor to his absence from the job mar­ket.@  (Findings 12, 14.)

 

The employee argues the compensation judge misconstrued the facts and failed to address the primary issue presented by this case.  The employee concedes he had pre-exist­ing, nonwork-related emotional and psychological problems.  But, on appeal, the employee con­tends the evidence establishes that until his personal injury, the employee had always been able to work, even with his pre-existing problems, and argues that his admitted, work-related CTS injury aggravated, accelerated or combined with his emotional problems to produce his inability to work.^[1]

 

We have carefully reviewed the employee=s counsel=s opening statement (T. 8-12), and do not find the employee claimed any causal relationship between his injury and his psychological or emotional conditions.  Further, Finding 4.B. states that Aattorneys for the parties stipulated . . . [t]he employee is not claiming that the emotional diagnoses for which he has received treatment since August 2000 are related to his work injury.@  This finding was not appealed by the employee.^[2]   This court has no jurisdiction to review issues not raised by the parties in the notice of appeal.  Minn. Stat. ' 176.421, subd. 6.   There is substantial evidence to support the compensation judge=s determinations that the reason the employee was unable to work during the period in question was his significant, on-going emotional problems, that his restrictions due to his CTS had not signi­ficantly changed since the pre­vious hearing, and that the employee=s restrictions due to his work-related CTS were not a sub­stantial contributing factor to his inability to work during the period at issue.  We must, therefore, affirm the compensation judge=s denial of temporary total disability benefits from August 12, 2000 and May 24, 2001.