BRIAN RESLER, Employee/Appellant, v. THYSSEN DOVER ELEVATOR and CNA/GALLAGHER BASSETT SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 8, 2002

 

HEADNOTES

 

CAUSATION - TEMPORARY AGGRAVATION; TEMPORARY BENEFITS - FULLY RECOVERED.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s work injury was merely temporary, and, pursuant to Kautz v. Setterlin, 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987), the compensation judge properly allowed discontinuance of benefits on that basis.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Pederson, J.

Compensation Judge:  William R. Johnson.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision that the employee=s May 24, 2000, work injury was only temporary, that he is not a qualified employee for purposes of rehabilitation services, and that temporary total disability benefits may be discontinued.  The employee also contends that the judge erred by refusing to consider the issue of penalties.  We affirm.

 

BACKGROUND

 

The employee sustained an injury to his left wrist on December 10, 1999.  He eventually treated with Dr. Benjamin Levine, who initially diagnosed a capsular injury and imposed work restrictions.  In February of 2000, Dr. Levine diagnosed an occult ganglion located under the extensor tendon sheath.  On February 25, 2000, Dr. Levine released the employee to full duty but noted that he might need fifteen-minute breaks every two to three hours.

 

On May 24, 2000, the employee was working for Thyssen Dover Elevator [the employer] when his left wrist became pinched between two iron rails.  When he was seen by Dr. James Anderson on that date, the doctor noted Aa little bit of swelling at the dorsum of the wrist,@ with some tenderness and mild limitation of motion.  Dr. Anderson diagnosed a wrist contusion and strain, prescribed Celebrex and a wrist splint, and released the employee to return to work that would allow for use of the splint.  The employer could not accommodate that restriction, and the employee was unable to return to his job.

 

The employee saw Dr. Anderson again on May 31, 2000, at which time Dr. Anderson continued the employee=s medications, use of the splint, and work restriction and referred the employee back to Dr. Levine. When the employee saw Dr. Levine on June 6, 2000, the doctor diagnosed an occult ganglion and restricted the employee from heavy pushing or pulling more than twenty pounds or lifting or carrying more than fifty pounds on a frequent basis, and he recommended that the employee be transfered to the employer=s service/repair department.  Again, the employer was unable to accommodate the employee=s restrictions, and the employee did not return to work.  On July 18, 2000, Dr. Levine noted that the employee=s ganglion was much less tender and continued the same restrictions for Aanother few weeks,@ indicating that he then intended to have the employee return to work without restrictions. 

 

The employee returned to Dr. Levine on September 15, 2000, stating he had been told by the employer that he had to be able to perform all of his job duties and that his work required him to lift one hundred pounds for 75% of the day.  Dr. Levine considered that unreasonable and continued his prior restrictions for three more months.  On June 19, 2001, Dr. Levine sent a letter to the employee=s attorney, stating, in part, that he believed Athis is an aggravation of his pre-existing condition.  I have no way to tell if it is permanent or temporary.@  Dr. Levine also indicated that he thought the employee had reached maximum medical improvement [MMI] and had a 0% permanent partial disability under the schedules.

 

On February 15, 2001, the employee was examined by independent medical examiner Dr. Mark Thomas.  In reports issued on February 21, 2001, and May 14, 2001, Dr. Thomas opined that the employee=s May 24, 2000, work injury was a temporary aggravation of the employee=s pre-existing condition, which had lasted a period of eight weeks.  Dr. Thomas further opined that the employee had reached MMI eight weeks after the injury and that all treatment and disability after that eight-week period was due entirely to the employee=s pre-existing dorsal ganglion cyst.

 

The employer and its workers= compensation insurer admitted liability for the May 24, 2000, work injury and paid temporary total disability benefits and provided rehabilitation services.  On March 8, 2001, the employer and insurer filed a rehabilitation request, asking that the rehabilitation plan be terminated because the employee had fully recovered from his temporary injury.  That matter proceeded to an administrative conference on April 5, 2001, and, in a decision and order filed on April 10, 2001, an arbitrator from the Department of Labor and Industry denied the request to terminate rehabilitation.  On April 9, 2001, the employer and insurer filed a notice of intention to discontinue workers= compensation benefits, contending that the employee was more than ninety days post MMI and that there was no medical evidence connecting the employee=s current condition to the work injury.  The matter proceeded to an administrative conference, following which a compensation judge granted the employer and insurer=s petition to discontinue.  The employee then filed an objection to discontinuance, and the employer and insurer filed a request for formal hearing on the arbitrator=s decision.  The objection to discontinuance and request for formal hearing were consolidated for purposes of hearing, which was held on June 21, 2001.  At the hearing, the employee sought penalties based on the employer and insurer=s failure to pay benefits through the date of the administrative conference.  The employer and insurer responded by contending that that was the first notice they had of the reason for the penalty claim, and the judge declined to hear the penalty issue.

 

In a decision filed on June 25, 2001, the compensation judge found that the May 24, 2000, injury was a temporary aggravation ending eight weeks after the incident, that the employer and insurer had reasonable grounds to terminate the employee=s benefits, and that the employee was not a qualified employee for purposes of rehabilitation services.  The employee appeals.

 

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 Aggravation

 

The employee contends that substantial evidence does not support the compensation judge=s finding that the May 24, 2000, injury was merely a temporary aggravation that ended eight weeks later.  We are not convinced.

 

The reports of Dr. Thomas provide support for the judge=s findings, in that Dr. Thomas opined that the May 24, 2000, work injury was a contusion and a sprain, superimposed on a pre-existing dorsal ganglion cyst, and that typical healing for a contusion and sprain would be four to eight weeks.  He further opined that any disability that existed after that eight-week period would be solely the result of the pre-existing ganglion cyst.  The employee contends that Dr. Thomas= opinions are lacking in foundation because the doctor did not see the employee until nine months after the injury.  We note, however, that Dr. Thomas reviewed the records of Dr. Anderson and Dr. Levine.  Moreover, the records of Dr. Anderson also provide some support for the judge=s findings, in that Dr. Anderson diagnosed a left wrist contusion and strain when he saw the employee on May 24, 2000.

 

The employee relies on the opinion of Dr. Levine in support of his position that his ongoing symptoms and disability are related to the May 2000 work injury.  While Dr. Levine did testify in his deposition that he disagreed that the employee had fully recovered from the May 2000 work injury, with no restrictions, by July 24, 2000, he also testified that he could not state whether the May 2000 injury was a permanent or temporary aggravation of the employee=s pre-existing ganglion cyst.  Dr. Levine further testified that, four weeks after he completed a work ability report in June of 2000, the employee was under no formal restrictions and could do what he wanted as tolerated.^[1]  As such, Dr. Levine=s testimony could reasonably be interpreted by the compensation judge as supporting the employer and insurer=s position that the employee had fully recovered from the May 2000 work injury by four weeks after June of 2000.  In any event, there is no evidence that the May 2000 work injury continued to be a substantial contributing factor in the employee=s condition following the discontinuance of benefits in February of 2001.

 

The employee also contends that the compensation judge abused his discretion by determining that the employee=s current condition relates solely to an earlier injury with a different employer, when that employer was not a party to the proceedings and did not have an opportunity to be heard.  We note, initially, that the judge did not make any such finding, and that, even if he had, it would not be binding on the unrepresented employer.  At any rate, the dispositive finding in this case was that the May 2000 work injury was a temporary aggravation that ended eight weeks after the injury.  A compensation judge=s choice between expert opinions is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  We find no error here in the judge=s decision to accept the opinion of Dr. Thomas on this issue.

 

2.  Termination of Temporary Total Disability Prior to Ninety Days Post MMI

 

The employee contends that the judge abused his discretion in allowing termination of temporary total disability benefits before the employee reached ninety days post service of MMI, in that the employee had not been released to return to work without restrictions.  Although Dr. Thomas opined that the employee had no restrictions attributable to the May 2000 work injury after July 2000, the employee contends that that opinion was lacking in foundation.  We rejected the employee=s foundation argument above, and we also addressed our deference to a compensation judge=s choice between expert opinions.  Because substantial evidence supports the judge=s finding that the employee had fully recovered from the temporary aggravation he sustained on May 2000, without restrictions, the judge properly determined that benefits could be discontinued prior to ninety days post service of MMI.  See Kautz v. Setterlin, 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987).^[2]

 

3.  Penalties

 

In his brief, the employee argued that the compensation judge abused his discretion by refusing to consider the issue of penalties for improper discontinuance of temporary total disability benefits prior to the administrative conference.  However, this issue was not raised in the employee=s notice of appeal, and only issues raised in the notice of appeal may be addressed by this court.  Minn. Stat. ' 176.421, subd. 3.