RAYMOND R. REEDER, Employee/Appellant, v. METRO TRANSIT, SELF-INSURED, Employer, and HEALTHPARTNERS, INC., PARK NICOLLET HEALTH SERVS., and MN DEP=T OF LABOR & INDUS./VRU, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 11, 2003

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL CONTRIBUTING CAUSE.  The compensation judge did not err in denying the employee=s claim for benefits related to a seizure condition allegedly resulting from work-related blunt head trauma where the only medical opinion evidence supportive of the employee=s claim indicated merely that the employee Apossibly@ or Aprobably@ had a seizure condition that Amight@ or Acould@ be the result of a work incident, especially where there was no objective evidence that the employee in fact had a seizure condition and where at least two other physicians found no causation.

 

EARNING CAPACITY.  The compensation judge properly denied, as premature, the employee=s claim for wage loss benefits for a period in which the employee was working but was allegedly not paid.

 

Affirmed.

 

Determined by Wilson, J., Rykken, J., and Johnson, C.J.

Compensation Judge:  James F. Cannon.

 

                                                                      OPINION

 

DEBRA A. WILSON, Judge

 

The employee appeals from the compensation judge=s decision denying his claim for benefits related to a possible seizure condition allegedly resulting from a work-related head injury and from the judge=s decision denying his claim for wage loss benefits during a period in which he worked but was allegedly not paid.  We affirm.

 

BACKGROUND

 

The employee began working as a bus driver for Metro Transit [the employer] in the early 1990s.  On June 6, 2001, he  was involved in a work-related incident when he choked on a piece of hard candy while driving his bus, causing him to cough violently.  He managed to maneuver the bus, which had no passengers at the time, to the curb, but, after he did so, his hand slipped off the emergency brake and he fell forward, striking his head and right shoulder on the stanchion or pole next to the driver=s seat.  The evidence does not clearly establish whether or not he lost consciousness.  In any event, following the incident, the employee called into the dispatcher, who sent out a supervisor to bring the employee back to the garage.  The employee then called his wife and son to pick him up from work.  The employee testified that he felt strange after the incident but that he did not seek immediate treatment because he did not feel that it was an emergency.  Later that night he discovered a bump and laceration on the right side of his head.

 

On June 7, 2001, the employee was seen by his usual family physician at HealthPartners, who noted the presence of a bruise on the employee=s right frontal lobe area as well as an abrasion to the employee=s right shoulder.  The physician ordered an MRI of the employee=s brain, which was performed on June 8, 2001, and was read as normal.

 

The employee was subsequently treated by Dr. John Dunne, of Park Nicollet Clinic Care System, apparently under the employer=s managed care plan.  Dr. Dunne initially treated the employee for lightheadedness and headaches, which he diagnosed as post-concussive syndrome.  As of early July of 2001, those symptoms were Asignificantly better,@ but the employee=s neck had become more and more sore.  By mid July of 2001, Dr. Dunne had diagnosed the employee as having a right shoulder strain as well as cervical strain and continuing lightheadedness.  Treatment for the employee, who remained off work, included physical therapy.

 

In early September of 2001, the employee experienced a Ablackout@ while at home watching television.  He could not recall precisely what happened but became aware that his wife was shaking and shouting at him.  His testimony regarding this event was corroborated by his wife.  Contemporaneous medical records contain no mention of the employee having experienced a blackout.  However, the employee testified that he decided not to seek treatment for this episode because he felt that he had enough to cope with concerning his other symptoms.

 

On about November 22, 2001, the employee experienced another blackout episode, again at home, this time losing bowel and bladder control.  He sought treatment shortly thereafter from his family physician, who referred him to a neurologist.

 

The employee was first seen by Dr. Gail Francis of the Minneapolis Clinic of Neurology on November 28, 2001.  Based on the history the employee related to her, Dr. Francis indicated that the employee had Aallegedly sustained significant blunt head trauma earlier this year,@ noting that the employee had had Atwo spells recently which are very suspicious for generalized seizures, nonconvulsive,@ which the doctor indicated Acould be the result of his head trauma which occurred several months earlier.@  However, Dr. Francis reported that there were other etiological considerations for the employee=s spells, including cardiac dysrhythmia, a structural lesion of the brain, and liver or renal problems.  Subsequent testing, including cardiac testing, a brain MRI, and an EEG, were all normal.  In later reports, Dr. Francis indicated that the employee might have a seizure condition as a result of blunt head trauma sustained in the June 6, 2001, work incident.  However, in his reports, Dr. Dunne, who continued to follow the employee for shoulder symptoms, indicated that the employee=s Asyncopal spells@ were not work-related.  In any event, because of these Aspells,@ the employee was placed on antiseizure medication and was restricted from commercial driving.

 

The employee returned to light-duty work for the employer, cleaning buses for about six hours a day, in March of 2002.  When he first started this work, from March 15, 2002, until April 9, 2002, he was unaware that he was expected to punch a time clock, and he was uncertain as to whether he was ever paid for that period.

 

In August of 2002, the employee was seen by Dr. Richard Galbraith, a neurologist, for purposes of an independent medical examination.  Dr. Galbraith subsequently reported that the employee=s Aspells@ were merely Asimple syncopes,@ unrelated to his work accident, particularly given the normal EEG.

 

In the fall of 2002, the employee was terminated by the employer based on his inability to return to his job as a bus driver, per Dr. Francis= restriction against commercial driving.

 

The employee filed a claim petition alleging entitlement to various benefits as a result of injuries allegedly sustained in his June 6, 2001, work incident, and the matter came on for hearing before a compensation judge on January 9, 2003.  At that time, the parties stipulated that the employee had sustained a work-related neck and right shoulder injury, and a contusion to the head, on June 6, 2001.  Issues included whether the employee had sustained a closed head injury, with resulting seizure disorder, due to the June 6, 2001, incident, whether proposed shoulder surgery was reasonable, necessary, and causally related to the work incident, and whether the employee was entitled to temporary total disability benefits, or temporary partial disability benefits at the temporary total rate, for the period March 15, 2002, through April 9, 2002, during which he had worked light-duty for the employer but was allegedly not paid.  The compensation judge gave the parties two weeks from the hearing date to submit letter briefs and additional wage documentation or a stipulation as to the employee=s temporary partial disability claim.^[1]  However, no post-hearing evidence or stipulation was submitted to the compensation judge.

 

In a decision issued on March 18, 2003, the compensation judge concluded that the proposed shoulder surgery was reasonably required to treat the employee=s June 6, 2001, work injury.  The judge also determined, however, that the employee Adid not sustain a closed head injury, and did not sustain consequential seizures, due to the work-related injury of June 6, 2001.@  The judge further determined that the employee was not entitled to temporary total disability benefits from March 15, 2002, through April 9, 2002, and that the employee=s claim for temporary partial disability benefits for that period was Areserved@ pending payment of wages.  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.  Head Injury

 

In his memorandum, the compensation judge explained in some detail his reasons for rejecting the employee=s claim for benefits related to the alleged closed head injury and seizure condition.  The judge noted, in part, that both Dr. Dunne and Dr. Galbraith had indicated that the employee=s Aspells@ were not related to the June 6, 2001, incident at work.  The judge did not, however, expressly accept their opinions to that effect.  Rather, the judge concluded that none of the medical opinions was adequate to support the conclusion that the employee had sustained a closed head injury, with resulting seizures, due to his work accident.  On appeal, the employee contends that the judge imposed an improperly high burden of proof as to this issue.  We are not persuaded.

 

ATo sustain a finding of causal relation it is not enough that there is medical testimony that the injury might have caused the subsequent condition or could have caused that condition but there must be medical [opinion evidence] that the injury did cause that condition.@  Holmlund v. Standard Constr. Co., 307 Minn. 383, 389, 240 N.W.2d 521, 525, 28 W.C.D. 317, 324 (1976) (emphasis in original).  This court has explained that,

 

with regard to causation opinions, an expert=s opinion need be stated only in terms of a reasonable degree of medical probability, and A[r]easonable probability . . . is determinable by consideration of the substance of the [expert=s opinion] and does not turn on semantics or on the use by the witness of any particular term or phrase.@  Boldt v. Jostens, Inc., 261 N.W.2d 92, 94, 30 W.C.D. 178, 181 (Minn. 1977), quoting Insurance Col of North America v. Myers, 411 S.W.2d 710, 713 (Tex. 1966).  An expert witness is not required to speak with such confidence as to exclude all doubts in his mind but may qualify his opinion in expressions that fall short of absolute conviction, and such qualification affects merely the probative force of the testimony.  See Hiber v. City of St. Paul, 219 Minn. 87, 16 N.W.2d 878, 13 W.C.D. 302 (1944).

 

Trom v. Express Personnel, slip op. (W.C.C.A. Jan. 28, 2000).

 

In the present case, as the compensation judge noted, Dr. Francis, the employee=s neurologist, never expressly stated, either in her treatment notes or in a narrative report, that the employee had in fact developed a seizure condition due to work-related head trauma.^[2]  Rather, Dr. Francis merely indicated, in virtually all of her treatment notes, that the employee Aprobably@ had partial complex seizures that Acould@ be or Amight@ be the result of blunt head trauma.  Furthermore, this is not a case in which the treatment notes, read as a whole, establish that the doctor had intended to express the opinion that the employee=s condition was work-related.  Compare Schultz v. Twin City Die Castings Co., slip op. (W.C.C.A. Nov. 7, 2002).  And, as the compensation judge noted, the fact that other causes were ruled out is not determinative, especially given the employee=s normal brain MRIs and EEG and the complete absence of any other objective medical evidence.  Moreover, the alleged injury at issue cannot be considered one of the Acommoner afflictions@ with regard to which causation may be established in the absence of medical evidence.  Cf. Bender v. Dongo Tool Co., 509 N.W.2d 366, 367, 49 W.C.D. 511, 513 (Minn. 1993).

 

Given the nature of the medical evidence, the compensation judge did not err in denying the employee=s claim for benefits related to a closed head injury or an alleged seizure condition allegedly resulting from the June 6, 2001, work incident.  We therefore affirm the judge=s decision on this issue.

 

2.  Wage Loss Benefits

 

The employee alleges that the compensation judge erred in denying his claim for temporary total disability benefits, or temporary partial disability benefits at the temporary total disability benefit rate, for the period March 15, 2002, through April 9, 2002, a period during which the employee worked for the employer in a light-duty capacity but was allegedly not paid.  This argument has no merit.

 

Initially we note that, contrary to assertions in the employee=s brief, the employee did not testify that he was not paid for this period.  Rather, he testified that his pay had become so Amessed up@ that he was not sure whether he was compensated for all the time he put in.  More importantly, this court has indicated that temporary total disability benefits are not payable if an employee is working and that temporary partial disability benefits are not payable in the absence of earnings.  See, e.g., Taylor v. University of Minn., slip op. (W.C.C.A. Feb. 26, 2003).  Under these circumstances, the compensation judge correctly ruled that the employee=s temporary partial disability benefit claim was Areserved@ pending payment or proof of wages for the period in question.^[3]  Id.