LON HOY, Employee/Cross-Appellant, v. EMPLOYMENT PLUS and WESTERN NAT=L MUT. GROUP, Employer-Insurer/Appellants, and MN DEP=T OF ECON. SEC. and MN DEP=T OF HUMAN SERVS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 3, 2003

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY.  Substantial evidence supports the decision of the compensation judge that the employee was not able to work without restrictions.

 

CAUSATION.  Substantial evidence supports the decision of the compensation judge that the employee=s right thumb condition was not causally related to his work injury.

 

Affirmed.

 

Determined by Stofferahn, J., Johnson, C.J., and Pederson, J.

Compensation Judge: Paul D. Vallant

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer have appealed from the compensation judge=s award of temporary total disability benefits.  The employee has cross-appealed the determination of the compensation judge that the work injury of November 5, 2001, did not result in a right thumb injury.  We affirm.

 

BACKGROUND

 

Lon Hoy, the employee, was injured on November 5, 2001, while working for Employment Plus.  The employee fell approximately 14 feet from scaffolding.  The employee was initially seen at the emergency room of Rice Memorial Hospital in Willmar, Minnesota.  The assessment there was of left frontal cerebral contusion, left anterior pneumothorax, posterior rib fracture, left pleural effusion, splenic laceration and comminuted left radial and ulnar proximal fractures.

 

The employee was transferred by air ambulance and admitted to Hennepin County Medical Center (HCMC).  The admission note of November 6, 2001, references the employee=s fall and notes the left ulna and radial head fractures.  It is also noted that the remainder of the extremities were carefully assessed and no other indication of trauma was found.

 

The employee underwent open reduction and internal fixation of his left arm fractures on November 6, with revision surgery on November 12, 2001.  The employee was discharged from HCMC on November 14, 2001, but admitted that same day to Knapp Rehabilitation Center at HCMC.  He was discharged from Knapp on November 30, 2001.

 

While at HCMC, the employee complained of right thumb pain which he indicated was the result of his fall on November 5.  X-rays were done on November 16, 2001, and were negative for fracture or dislocation, but did show osteoarthritic changes at the metacarpophalangeal joint of the thumb.

 

The employee=s family doctor was Dr. Thomas Breen at Affiliated Medical Center in Willmar.  No records of Dr. Breen are in evidence.  Dr. Breen referred the employee to Dr. Paul Iverson, who saw the employee on January 10, 2002, for evaluation of the right thumb.  On examination, Dr. Iverson found bossing and prominence of the MP joint of the right thumb, 10E flexion contracture and crepitus with further flexion.  Dr. Iverson=s opinion was that the employee had post-traumatic arthritis of the MP joint and that Athis did not occur just since this past November 5 and that there were previous injuries.@ 

 

The employee had been receiving temporary total disability benefits from Western National Mutual Group, his employer=s insurer, since the date of injury.  On February 26, 2002, the employer and insurer filed a notice of intention to discontinue compensation, alleging that the employee was released to return to work without restrictions as of February 26, 2002.  Attached as support was a note from HCMC signed by Dr. Thomas Varecka, who had treated the employee at HCMC. 

 

At the request of the employee, an administrative conference was held on March 26, 2002, which resulted in a decision allowing the discontinuance.  The employee, who has been pro se in this matter, sent correspondence to the Office of Administrative Hearings which was treated as an objection to the discontinuance. 

 

During the pendency of this matter, the employee was evaluated by Dr. William Call at the request of the employer and insurer.  In his report of June 10, 2002, Dr. Call addressed only the employee=s right thumb complaint.  It was his conclusion that the employee had chronic osteoarthritis of the right thumb which was not causally related to the work injury of November 5, 2001.

 

The employee=s objection to discontinuance was heard by Compensation Judge Paul Vallant on January 7, 2003, in Willmar, Minnesota.  At the hearing, the compensation judge identified the issues for determination as being whether the employee was able to work without restrictions, whether the employee was entitled to temporary total disability benefits from February 26, 2002, and whether the employee sustained a right thumb injury in his fall on November 5, 2001.  The judge also dealt with intervention claims by the Minnesota Department of Human Services and the Minnesota Department of Economic Security and with a claim for child support arrearages filed by Jackson County.

 

In his Findings and Order, served and filed February 20, 2003, the compensation judge determined the employee was not able to work without restrictions and awarded the employee temporary total disability benefits, with payment from the award to the intervenors and to Jackson County.  The judge decided the employee=s right thumb condition was not related to his work injury.  The employer and insurer have appealed the compensation judge=s award of benefits.  The employee has cross-appealed.

 

DECISION

 

1.  Temporary Total Disability

 

The issue at the hearing for the compensation judge was whether the employee=s temporary total disability benefits were properly discontinued on the grounds that the employee was capable of returning to work without restrictions.  As support for their position, the employer and insurer introduced a return-to-work/school statement signed by Dr. Varecka on February 25, 2002, which released the employee to work without restrictions.  No records or chart notes relating to this visit were introduced.

 

The compensation judge accepted the testimony of the employee that he was limited in his ability to work due to pain, decreased mobility and loss of strength in his left arm.  On appeal, the employer and insurer argue that there was no medical support for the compensation judge=s decision that the employee had continuing work restrictions.  The extent of the employee=s disability is a question of fact for the compensation judge.  Nelson v. Northern Mill Prods., slip op. (W.C.C.A. Dec. 11, 1998).  The testimony of the employee may constitute substantial evidence to support a finding that the employee has a disability which affects his ability work.  Hanson v. Bagley Hardwood Prods., slip op. (W.C.C.A. Jan. 7, 2002).  The employee=s testimony was also supported by the medical records which detailed the extent of the employee=s left arm injury, a comminuted fracture of the ulna and radial head which required open reduction and internal fixation.

 

Substantial evidence supports the decision of the compensation judge on this issue, and the award of temporary total disability benefits is affirmed.

 

2.  Employee=s Cross-Appeal

 

After the compensation judge=s Findings and Order were served on him, the employee sent a number of letters to the Office of Administrative Hearings.  These letters were deemed to be a cross-appeal by the employee from the compensation judge=s decision.  Exactly what issues the employee has cross-appealed are not completely clear.

 

It is apparent that the employee disagrees with the compensation judge=s decision that the employee=s right thumb condition was not the result of the work injury on November 5, 2001.  The employee argues that his work activity before his injury was very physical and that, if he had a right thumb injury before November 5, it would have affected his ability to work.  In making his determination, the compensation judge relied on the opinions of Dr. Iverson and Dr. Call and on the fact that there was no report of right thumb complaints until November 15.

 

Whether we might have viewed the evidence differently than the compensation judge is not the issue.  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  Our function is to determine whether substantial evidence supports the determination of the compensation judge.  If substantial evidence exists, the decision is to be affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  Here, we find that the opinions of Drs. Call and Iverson constitute substantial evidence.  The decision of the compensation judge denying the employee=s claim of a right thumb injury is affirmed.

 

The employee also questions the payments which were ordered from his benefits.  Minnesota law provides specifically that the amount of payments made to an injured worker under a program administered by the Department of Human Services or the Department of Economic Security are to be deducted from any workers= compensation award and repaid to the appropriate agency.  Minn. Stat. ' 176.191, subd. 4; Minn. Stat. ' 268.085, subd. 3a.  Similarly, state law provides that child support arrearages are a lien against lump sum workers= compensation payments.  Minn. Stat. ' 518.6111, subd. 11.  The decision of the compensation judge in ordering payments from the employee=s award was in accord with state law and is affirmed.  The employee also raises various questions about the amount of his unemployment benefits, the validity of the child support order, and other concerns.  Those questions are not within the jurisdiction of this court and will not be decided.  Minn. Stat. ' 175A.01, subd. 5.