JEAN O. KUISLE, Employee/Appellant, v. SUNRISE ASSISTED LIVING, a/k/a KARRINGTON ASSISTED LIVING, and ROYAL & SUN ALLIANCE INS. CO., Employer-Insurer, and MN DEP=T OF HUMAN SERVS.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 23, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supports the compensation judge=s denial of the employee=s claims based on his finding that the employee=s work-related injury resulted in a temporary aggravation of her pre-existing low back condition and resulted in no injury to her right foot or leg.

 

Affirmed.

 

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

Compensation Judge: James R. Otto

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s determination that the employee sustained a temporary aggravation of her low back condition on November 8, 1999, and that she sustained no injury to her right leg, foot and heel on that date.  The employee also appeals from the judge=s finding that the employee=s weekly wage on November 8, 1999, was $429.38.  We affirm.

 

BACKGROUND

 

This case is before the court on appeal from issuance of a Findings and Order on Remand.  The facts of this case are set out in our previous decision.  In summary, Ms. Jean Kuisle, the employee, sustained an admitted injury to her low back on November 8, 1999.  She also claimed an injury to her right lower extremity at that time.  The employee had undergone medical and chiropractic treatment prior to that injury, including treatment for low back and right leg and foot symptoms following personal injuries in 1961, and previous work-related injuries in 1975, 1979 and 1990.  The employee began working as a licensed practical nurse and personal care attendant for Sunrise Assisted Living, also known as Karrington Assisted Living (the employer).  At the time of her injury, the employee worked full-time for the employer and had done so since August 20, 1999.  Since 1998, the employee had worked essentially full-time hours through a combination of two part-time jobs as a nurse with both Pine Haven Nursing Home and the employer.  By August 20, 1999, the employee had resigned her part-time position at Pine Haven and worked solely for the employer, working full-time and overtime hours. 

 

On November 8, 1999, the employee and two co-workers worked with a patient who was diagnosed with Alzheimer=s disease, attempting to teach him how to walk again.  According to the employee=s testimony, the patient attempted to sit down, causing the employee to be pulled forward and bent over the patient=s walker bar.  She noticed an immediate pulling and throbbing sensation in her right buttocks extending into her right leg, and later noted significant pain in her low back, right foot and right heel.  Following her injury, the employee continued to work on a light-duty, part-time basis, with restrictions assigned by her treating physicians.  She received ongoing chiropractic and medical treatment following this injury. 

 

The employee ultimately filed a claim petition on February 8, 2001, claiming various benefits as a result of her work-related injury, including temporary partial disability benefits between July 30 and October 8, 2000, temporary total disability benefits thereafter, and payment for medical and rehabilitation expenses.  The employer and insurer admitted that the employee sustained a temporary low back strain on November 8, 1999, but denied primary liability for a right leg, foot or heel injury.  The employee=s claims were addressed at hearing on August 29, 2001.  In addition to extensive hearing testimony by the employee and deposition testimony by a representative of the employer, evidence included medical records and reports from numerous physicians and clinics, including records of the Olmsted Medical Group from 1979 through 2001, the Mayo Clinic, Fairview Red Wing Clinic and Hospital, Desert Samaritan Hospital, Dr. James Allen, Dr. Robert Wengler,  Dr. Richard Salib, Dr. Matthew Eich, Dr. Loring Stead, Dr. Lowell Lutter, and Dr. Thomas Boisen, D.C.  Following the hearing, Compensation Judge James R. Otto issued Findings and Order on October 5, 2001, in which he denied the employee=s claims.  The compensation judge found that the employee had sustained an injury to her low back on November 8, 1999, in the nature of a temporary aggravation of her pre-existing condition, that the employee had reached maximum medical improvement (MMI) from that injury prior to July 7, 2000, and that notice of MMI was served on the employee on July 24, 2000.  He found that the employee=s wage was $284.50, determining that the employee=s part-time wages earned from an additional employer, Pine Haven, from April 30 through August 6, 1999, were not relevant for calculating the employee=s weekly wage.  The compensation judge denied the employee=s claim for temporary total or temporary partial disability benefits from and after July 29, 2000, and denied her claim for payment of unpaid medical expenses and unpaid rehabilitation expenses, concluding that those expenses were not causally related to the employee=s personal injury of November 8, 1999.

 

The employee appealed, and on appeal this court vacated a portion of the compensation judge=s findings on causation and the nature of the employee=s injury, and on the employee=s wage claim, and remanded the case to the judge for reconsideration.  Kuisle v. Sunrise Assisted Living, slip op. (W.C.C.A. Oct. 2, 2002).  This court determined that, in view of the conflicting evidence concerning causation of the employee=s low back and right foot and leg condition, there was foundation for the medical opinions in the record, that the compensation judge erred in rejecting all medical opinions other than Dr. William Park=s, solely on foundation grounds, and that the judge erred by rejecting the employee=s claim for a lack of properly founded supporting medical opinion.  We also concluded that the compensation judge=s denial of the employee=s claims of a right leg and foot injury, based in large part on his conclusion that the employee could not have observed the position of her foot at the time of her injury on November 8, 1999, was not supported by substantial evidence.  We therefore vacated and remanded the matter to the compensation judge for reconsideration in light of all the evidence of record, including the opinions of those physicians other than Dr. Park.

 

In addition, we vacated the compensation judge=s finding that the employee=s weekly wage on November 8, 1999, was $284.50, and vacated his related finding concerning the employee=s claim for an underpayment of benefits.  We remanded the wage issue to the compensation judge for reconsideration of the employee=s wage rate and of the employee=s claim for an underpayment of temporary disability benefits, and requested specific findings outlining the basis for his determination of the employee=s wage rate.

 

In a Findings and Order on Remand, served and filed on January 7, 2003, the compensation judge again denied the employee=s claim for payment of additional benefits on the basis that the nature of her injury on November 8, 1999, was solely a temporary aggravation of her pre-existing lumbar spine condition, and that the employee sustained no injury to her right foot or leg at the time of her work-related injury on November 8, 1999.  On remand, the compensation judge revised his finding on the employee=s weekly wage; he determined that the employee=s weekly wage at the time of her injury was $429.38, and therefore awarded reimbursement of underpayment of temporary total and temporary partial disability benefits.  The employee again appeals.

 

DECISION

 

When an appeal is taken from a compensation judge=s factual findings, this court=s review on appeal is limited to a determination of whether the compensation judge's findings and order are "clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1(3) (1992).  If, on the other hand, the judge=s factual determinations are adequately supported by substantial evidence, and not clearly erroneous, we must affirm.  This court is not a finder of fact, and on appeal the court will not Aretry@ the factual issues which were before the lower court.  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 this 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.

Nature of November 8, 1999, Injury

 

The employee appeals from the compensation judge=s findings that the employee sustained a temporary aggravation of her pre-existing low back condition as a result of her work related injury on November 8, 1999, and that she sustained no right leg or foot injury on November 8, 1999.  The issue before this court is whether the compensation judge=s findings are supported by substantial evidence of record, and are not clearly erroneous.  "The burden is on the employee to prove by a fair prepon­derance of the evidence that she is entitled to workers' compensation benefits."  Fisher v. Saga Corp., 463 N.W.2d 501, 501, 43 W.C.D. 559, 560 (Minn. 1990).  In addition, Ain order to recover workers' compensation benefits, the employee must establish that his work-related injury is a substantial contributing factor to his current disability."  Steinhaus v. F.B. Clements, 47 W.C.D. 22, 30 (W.C.C.A. 1992).

 

 The medical evidence of record includes opinions from various treating physicians that the employee=s injury on November 8, 1999, including an injury to her lumbar spine and right leg and foot, substantially contributed to her ongoing disability following that injury.  By contrast, Dr. Park, who examined the employee at the employer and insurer=s request, concluded that the employee=s November 8, 1999, lumbar spine injury was a soft tissue injury that had resolved after two month=s treatment and no longer substantially contributed to the employee=s ongoing disability.  Dr. Park also concluded that there was no evidence that the employee sustained any structural injury to her right foot or heel, nor any soft tissue injury of a chronic nature, as a result of her injury on November 8, 1999, and that the degenerative changes in the employee=s right foot related to her pre-existing condition.

 

On remand, the compensation judge found, in pertinent part, that the nature of the employee=s injury on November 8, 1999, was Aa temporary aggravation type personal injury involving her lumbar back  that included radiating pain down her right leg to her heel,@ and that the employee=s right foot plantar fasciitis and other foot symptoms and conditions were of unclear etiology and not due to her injury on November 8, 1999.  The compensation judge=s basis for his determination was two-fold.  He accepted the medical opinion of Dr. Park that the employee had sustained no right foot injury on November 8, 1999, and the initial impression, that the employee=s right foot pain was of unclear etiology, by Dr. Diane Palkert, Orthopaedic Foot and Ankle Center, in her office notes of January 2, 2001.^[1]  The compensation judge also found the employee=s testimony about the occurrence and nature of the injury was not credible.

 

We first address the compensation judge=s analysis of the medical opinions in evidence.  On remand, the compensation judge considered the medical opinions issued by the various physicians who examined and treated the employee.  In his Findings and Order, he referred specifically to the medical opinions of Drs. Lowell Lutter, Matthew Eich, L. J. Stead, Diane Palkert and William Park.  He explained why he rejected the opinions of Drs. Lutter, Eich and Stead as having limited value in assisting with his evaluation of the causation issue, and that he did not receive those opinions as Apersuasive, or as having convincing force, or as being probably true.@  The compensation judge also specifically stated that he accepted the medical opinions of Drs. Palkert and Park as being more persuasive and convincing in view of the facts of the case.  He also referred to the opinion of Dr. James Smith, a neurologist who examined the employee on January 5, 2000, who opined that the employee=s symptoms were atypical and nonanatomic and nearly perfectly mirroring similar symptoms from 1991.

 

Where a compensation judge=s determination is based upon a choice between differing medical opinions, this court must affirm where the opinion relied upon has adequate foundation.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  To be of evidentiary value, a medical opinion must rest on a factual basis.  Zappa v. Charles Mfg. Co., 260 Minn. 217, 224, 109 N.W.2d 420, 424, 21 W.C.D. 459, 467 (1961).  Furthermore, the facts upon which the expert relies for his or her opinions must be supported by the evidence.  McDonald v MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff'd (Minn. July 13, 1990).  The failure to comment on the details of an employee=s history does not render a doctor=s opinion invalid, and a  medical expert need not be aware of all of the exact details of the employee=s previous medical history before the doctor may render an opinion.  Minor facts may be unknown to a doctor without damaging the foundation for the medical opinion as long as the omissions do not mislead the fact-finder.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 431 (Minn. 1978).  In general, such deficiencies go only to the persuasiveness or weight to be given the opinion, not to its admissibility.  See Drews v. Kohl=s, 55 W.C.D. 33, 39 (W.C.C.A. 1996); see also Bossey v. Parker Hannifin, slip op. (W.C.C.A. Mar. 14, 1994); Trego v. Associated Leasing, slip op. (W.C.C.A. Jan. 9, 1998); Stuhr v. Northwestern Travel Serv., Inc., 57 W.C.D. 352 (W.C.C.A. 1997); summarily aff=d (Minn. Dec. 15, 1997).

 

In denying the employee=s claim, the compensation judge again concluded that certain medical opinions lacked foundation.  We rejected that conclusion in our initial decision on this case, and do so again.  However, on remand, the compensation judge did reconsider the various medical opinions in the record, as directed, and determined the weight to be assigned to their opinions, finding that certain medical opinions were more persuasive.  The judge relied on Dr. Park=s and Dr. Palkert=s opinions.  Although the record contains conflicting medical opinions on the effects and duration of the employee=s 1999 work injury, it is the compensation judge=s responsibility, as a trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342,  37 W.C.D. 364, 372 (Minn. 1985).  Even though other medical opinions in the record, as well as testimony from the employee, would support an opposite conclusion than that reached by the compensation judge, we cannot say that the compensation judge erred in concluding that the employee=s November 8, 1999 injury to her low back was temporary in nature, and that she sustained no right foot or leg injury as a result of that work injury.

 

We note, however, that at Finding 13, the compensation judge found that the employee=s foot symptoms and condition were of unclear etiology and Aprobably due to factors not related to any incident on November 8, 1999.  He then listed other factors Apotentially@ related to the employee=s right foot condition, including her weight, a high arch in her right foot, worn out  arch supports, shoes Athat were too loose around her heels or that lacked shock absorbency or were worn out@and failure of the employee to continue with medication presumably  prescribed for her heel pain prior to November 8, 1999.  We agree with the employee=s argument that a review of the record shows no references linking these Apotential@ causative factors to the employee=s right foot condition, and we do not base our decision on those speculative factors, as they have no basis in the record and therefore provide no support for the compensation judge=s finding.  Nevertheless, the judge=s reliance on Dr. Park=s opinion provides adequate support for the his finding that there is no causal relationship between the employee=s work injury and her right foot and leg condition. 

 

We also note that on remand, the compensation judge again found that the employee was not credible when describing  how her right leg and foot injury occurred on November 8, 1999, and denied her claims related to her right leg and foot condition based, in part, on his assessment of the employee=s credibility.  The compensation judge also concluded that the employee had not provided a sufficient history of her earlier injuries to her treating and examining physicians, and questioned her credibility on that basis.  It is the trier of fact's responsibility to assess the credibility of a witness, and a finding based on credibility of a witness will not be disturbed on appeal unless there is clear evidence to the contrary.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).   Although some of the employee=s post-1999 medical records refer back to the employee=s earlier injuries, medical treatment and symptoms, and while the employee=s testimony was generally consistent with notations in her medical records, in so much as the compensation judge based his conclusions on the employee=s credibility, we will not disturb that aspect of the judge=s analysis.  See Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).

 

We therefore affirm the compensation judge=s denial of the employee=s claim for additional benefits as a result of her November 8, 1999, injury, as the judge=s findings are Asupported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.in the record. 

 

Weekly Wage Claim

 

The employee appeals from the compensation judge=s determination that her weekly wage on November 8, 1999, was $429.38. Whereas the compensation judge originally had determined a weekly wage rate of $284.50, on remand the compensation judge found that

 

Ms. Kuisle=s weekly wage on November 8, 1999, was $429.38, based on her total earnings as a full-time employee of Sunrise Assisted Living of $4,723.290 divided by her 11 weeks of full-time employment.

 

(Finding No. 19; emphasis in the original.)  The employee commenced working full-time for the employer on August 20, 1999, approximately 11 weeks before her injury on November 8, 1999.

 

On appeal, the employee again claims a wage rate of $652.60, based on a 26-week average of her wages earned from both Pine Haven and Sunrise Assisted Living, the employer, since she had worked for both during a portion of the 26 weeks prior to her November 8, 1999, injury.^[2]  Although the employee worked solely for this employer on November 8, 1999, she claims that her weekly wage rate should be based on an average of her earnings from both Pine Haven and Sunrise.  Alternatively, the employee claims that her weekly wage should be based on an imputed full-time hourly rate of $11.00, alleging that even though Sunrise Assisted Living promised that higher wage when offering her the full-time position, she was never paid that rate, and was paid only $9.00 per hour on the date of her injury.

 

Minn. Stat. ' 176.011, subd. 3, provides that A[i]f, at the time of injury, the employee was regularly employed by two or more employers, the employee=s earnings in all such employments shall be included in the computation of the daily wage@ (emphasis added).  Since the employee was not regularly employed by Pine Haven at the time of her injury, and indeed had not worked there since August 20, 1999, the wages the employee earlier earned at Pine Haven cannot be included in the calculation of the employee=s weekly wage.

 

At issue, then, is whether the compensation judge=s method of calculating the employee=s weekly wage, based solely on her wages earned with the employer since August 20, 1999, is supported by evidence of record and is not clearly erroneous.  The object of a wage determination is to arrive at a fair approximation of the employee=s probable future earning power which has been impaired or destroyed by the injury.  Sawczuk v. Special School District 1, 34 W.C.D. 282, 312 N.W.2d 435 (Minn. 1981).  See also, Bradley v. Vic=s Welding, 39 W.C.D. 921, 405 N.W.2d 243 (Minn. 1987); Beissel v. Marschall Line, Inc., 58 W.C.D. 470 (W.C.C.A. 1998).  Minn. Stat. ' 176.011, subds. 3 and 18, provide a formula to calculate daily and weekly wage in cases of Airregular employment.@^[3]  That method should apply to this case, since the employee earned both full-time wages and overtime wages, in varying or Airregular@ amounts, in the 11 weeks prior to her injury.  In this case, however, the record does not include the employee=s daily wage records but instead documents the employee=s wages earned on a weekly basis.  In cases such as this one, where the evidence necessary to comply with statutory directives (for calculating both a daily and weekly wage) is not available, a compensation judge may use another method so long as that method reasonably reflects the employee=s injury-related loss of earning capacity.  Straley v. World Book Ed. Prod., 50 W..D. 370 (1994) (no evidence in the record of the number of days the employee worked prior to the injury).

 

The employee was working full-time and overtime hours for the employer at the time of her injury, and had done so since August 20, 1999.  Based on payroll records in evidence, during the 2-week pay periods encompassing August 20 and November 8, 1999, the employee=s hours varied from 70.5 to 105.5.  Her regular pay during those 2-week pay periods ranged from $600.75 to $945.00.  In addition, her overtime earnings each pay period ranged from $6.75 to $236.25.  The compensation judge concluded that the employee=s weekly wage on November 8, 1999, was $429.38. Unlike his original calculations in his initial findings and order, which apparently were based on

part-time and full-time wages earned in the 22 weeks that the employee worked for the employer, the compensation judge now has considered only those wages the employee earned during the 11 weeks she worked full-time prior to her injury.  In this case, using the full-time wages earned since August 20, 1999, the compensation judge=s calculated wage rate of $429.38 reasonably reflects the employee=s earning capacity at the time of her injury, since she earned full-time wages at the time of her injury.

 

Therefore, we affirm the compensation judge=s finding that the employee=s weekly wage on November 8, 1999, was $429.38, and affirm his order for reimbursement by the employer for the underpayment of temporary partial and temporary total disability benefits based on that wage rate.  The employer and insurer state, in their brief, that they have already issued that underpayment to the employee based on the judge=s findings on remand.  We also order, if such additional payments have not already been made, payment of appropriate interest due on the underpayment of benefits, related payment of contingent attorney fees to the employee=s attorney, and partial reimbursement of attorney fees to the employee, pursuant to Minn. Stat. ' 176.081, subd. 7.