SHARON L. ROUSSEAU, Employee/Cross-Appellant, v. USA NORTHLAND DIRECTORIES, INC. and EMC INS. COS., Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 29, 2003

 

HEADNOTES

 

CAUSATION - AGGRAVATION.  Substantial evidence, including expert opinion, supports the compensation judge=s decision that the employee=s work-related motor vehicle accident aggravated the employee=s neck, back, and bilateral hand/wrist conditions.

 

PRACTICE & PROCEDURE.  The compensation judge erred in making a finding as to causation of the employee=s psychological condition where there was no claim of psychological injury properly before him.

 

WAGES.  Remand for reconsideration was required where the basis for the judge=s wage determination was not clear, the judge did not explain why he had declined to deduct expenses from the employee=s earnings, and the judge did not discuss the employer and insurer=s theory that the employee=s wage should be imputed from similar employee=s wages given the employee=s brief work history.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical and vocational opinion, supported the judge=s decision that the employee had been totally disabled from work during the period claimed.

 

PENALTIES; PRACTICE & PROCEDURE.  The compensation judge did not err in failing to award penalties where no penalty claim had been asserted prior to hearing.

 

Affirmed in part, vacated in part, and remanded.

 

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

Compensation Judge:  James R. Otto.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the judge=s decision as to the employee=s weekly wage, the nature and extent of her work-related injuries, and her entitlement to temporary total disability benefits and treatment expenses.  The employee cross appeals from the judge=s weekly wage determination and from his failure to award penalties.  We affirm in part, vacate in part, and remand for further proceedings.

 

BACKGROUND

 

The employee began working for USA Northland Directories, Inc. [the employer], in April of 2000.  She evidently received no compensation during initial training as a telemarketer and was laid off during July and August of 2000.  In September of 2000, she returned to the employer as an Aoutside@ salesperson or field representative, selling yellow page advertising on a commission basis.  The commission was calculated as a percentage of the sale, which varied depending on whether the sale was a straight renewal of advertising from an existing customer, an increased renewal from an existing customer, or an order from a new customer.  The employer held back 5% of commissions otherwise due in anticipation of the cancellation of some contracts; the retained 5% was generally paid after eighteen months.  Employees had the option of submitting their expenses to the employer for reimbursement, which would reduce their commissions, or absorbing their own expenses.  The employee chose to absorb her own expenses and then deducted those expenses on her income tax return.  Salespersons like the employee were given leads and territories to work but were allowed substantial flexibility to set their own schedules as long as their sales were satisfactory.

 

The employee was off work, due to bilateral knee surgery, and received short term disability benefits from mid October 2000 through January 31, 2001.  Her application for short term disability benefits, signed by the president of the employer, indicated that the employee was earning $1,347.18 in base weekly earnings in her sales job.

 

The employee returned to work in early February 2001, selling advertising in the Brainerd Lakes area.  On March 5, 2001, after completing a sales call, the employee was involved in a rear-end collision at a stoplight.  The employee estimated that the other driver was traveling 40 miles an hour at the time, and she testified that her body was thrown backward and then forward, jamming her hands and wrists into the steering wheel.  The driver of the other car, Trisha Karlson, estimated that she was traveling about 15 miles an hour when the she collided with the employee=s car and testified that the collision did not cause her airbag to deploy.  Ms. Karlson also indicated that the employee did not complain of any pain or other symptoms during an exchange of insurance information immediately after the accident.

 

The employee sought chiropractic treatment on the day of the accident, and notes from that consultation indicate that the employee was complaining of headache and neck, upper back, low back, and shoulder pain; however, in a pain questionnaire completed during that visit, the employee also specified that she was experiencing bilateral hand/wrist pain.  The employee subsequently completed a First Report of Injury form, describing the nature of the injuries as Aneck, back, and wrists.@  The First Report also indicates that the employee was earning an average weekly wage of $1,347.18, plus a $100.00 weekly bonus, for a total weekly wage of $1,447.18.

 

Following her March 5, 2001, automobile accident, the employee received a substantial amount of treatment for neck, back, and hand/wrist symptoms from several providers, including Drs. Robert Hasse, Paul Shogren, J. Donald Opgrande, John Eaton, Kent Hardenbrook, and R. D. Beckenbaugh.  The employee left her employment with the employer in mid May 2001 because, she testified, the employer would not accommodate her need for modified work and treatment.  Diagnostic tests eventually disclosed bilateral carpal tunnel syndrome and bilateral degenerative changes in the first carpometacarpal [CMC] joint.  In June of 2002, the employee underwent right hand surgery, in the nature of a CMC suspension arthroplasty.  The same procedure was performed on her left hand in August of that year.  The employee has not worked at all or looked for work since leaving her job with the employer.

 

Hearing in this matter was held before a compensation judge at the Office of Administrative Hearings on September 26, 2002.  At the commencement of the hearing, the employee clarified that she was seeking temporary partial disability benefits from March 5, 2001, until May 14, 2001, her last day of employment; temporary total disability benefits after May 14, 2001, through the date of hearing and continuing; and medical expenses, related to back, neck, and bilateral hand/wrist injuries allegedly resulting from the March 5, 2001, accident.  The employer and insurer denied liability for the claimed benefits, contending that the March 5, 2001, accident aggravated preexisting back, neck, and hand/wrist conditions only temporarily at most and that the temporary aggravation had completely resolved.  Other issues included the employee=s weekly wage, whether the employee had reached maximum medical improvement [MMI], and whether the employee was ineligible for temporary total disability benefits because she had not looked for any work.  Evidence included certain wage and income tax information, the employee=s extensive medical records, including treatment records concerning pre-injury back, neck, and hand/wrist symptoms, and reports from independent examiners Dr. Michael Smith and Dr. John Dowdle.  Following the hearing, the employer and insurer submitted a supplemental report from Dr. Smith, and the parties submitted memorandum on the primary issues.  In her memorandum, the employee asserted a claim for penalties, contending that the employer and insurer had frivolously denied primary liability for her injuries.

 

The compensation judge issued his decision on November 5, 2002.  In that decision, the judge determined that the employee=s weekly wage on the date of injury was $953.86, that the employee had injured both hands in the March 5, 2001, accident, had permanently aggravated her preexisting cervical, thoracic and low back conditions, and had developed a Aprobable consequential anxiety/stress disorder@; that the employee had not reached MMI; and that the employee had been temporarily totally disabled from and after May 14, 2001, through the date of hearing.  Accordingly, the judge awarded temporary total benefits and medical expenses.  No finding was made relative to the employee=s penalty claim.  Both parties appeal.

 

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.  Nature and Extent of Injuries

 

A number of medical experts rendered opinions as to causation of the employee=s back, neck, and bilateral hand/wrist conditions.  Much of the documentary evidence consisted of medical records covering the employee=s pre-injury treatment for these and other medical problems.  In his finding on the nature and extent of the injuries resulting from the employee=s March 5, 2001, work-related motor vehicle accident, the compensation judge determined as follows:

 

The exact nature of the personal injuries sustained by Ms. Rousseau on March 5, 2001 is not fully ascertainable from the evidence, but include injuries to both hands (including both thumbs) and wrists; and either a consequential traumatic arthritis and/or an acceleration of a pre-existing arthritic condition involving her hands/wrists including fingers/thumbs; as well as a permanent aggravation of her pre-existing cervical back condition, her pre-existing thoracic back condition, and her pre-existing low back condition (see Dr. Shogren=s report of September 10, 2002, Exh. 12; also see Dr. Hasse=s report of September 5, 2002, Exh. 13), with subjective symptoms on September 4, 2002 of burning across her upper back, neck pain, lower back pain, periodic sciatica, bilateral hip pain, and weakness in both hands/fingers, and numbness in the whole left arm and in the whole right arm (see Dr. Dowdle=s report of November 9, 2001) and probable consequential anxiety/stress disorder.

 

On appeal, the employer and insurer contend that the only Acredible clinical evidence@ presented in this case compels the conclusion that the employee sustained only temporary neck and upper back injuries in her work accident, which had resolved within three months, and that the employee=s hand/wrist conditions are solely the result of a longstanding degenerative process unrelated to the accident.  We are not persuaded.

It is evident from his decision that the compensation judge was fully aware of the employee=s preexisting history of and treatment for neck and back complaints.^[1]  Having taken the evidence to that effect into account, the judge was nevertheless persuaded by the opinions of Drs. Hasse and Shogren.^[2]  The employer and insurer=s primary argument with regard to causation of the employee=s neck and back problems appears to be that Ms. Karlson=s testimony as to her speed on impact, and as to the employee=s behavior just after the accident, establishes that the collision was not serious.  However, nothing in the employer and insurer=s arguments provides any basis to overturn the judge=s choice between conflicting expert opinions.  While the judge could, certainly, have chosen to accept the opinions of Drs. Smith and Dowdle that the motor vehicle accident caused only temporary back and neck injuries, the judge was equally entitled to accept the expert opinions to the contrary.  See, e.g., Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

The same is true with respect to the judge=s decision that the work accident aggravated the employee=s underlying arthritic hand/wrist condition.  In his report, Dr. Hasse wrote as follows with regard to causation of the employee=s hand and wrist conditions:

 

I do not agree with the pre-existing condition of the hand arthrosis not being related to the auto accident.  She had a rather mild history of wrist symptoms in 1997, which were completely resolved long before her auto accident on March 5, 2001.  There was no evidence of carpal tunnel noted prior to the auto accident.  I have read the report from Mayo Clinic from Dr. Beckenbaugh and I agree with his assessment that the auto accident Aat a minimum@ aggravated any pre-existing condition that she may have had.  She did have arthroplasty performed in June.  Dr. Smith does acknowledge that she Amay need further orthopedic interventions referable to her ongoing degenerative difficulties with her hand arthritis . . .@  There is no specific way to know if the arthritis was present and to what extent prior to the accident.  It is clear that she did not have any symptoms that required treatment prior to that auto accident.  It did not cause her any pain that required she seek care, other than the incidence in 1997.  The arthritis pain problems that she developed as a result of the auto accident [have] left her disabled from March 5, 2001 up to the present and may continue contingent on her recovery from her present surgery with Dr. Beckenbaugh.

 

Records from Dr. Eaton, the employee=s longstanding family physician, and Dr. Beckenbaugh, the employee=s hand surgeon, further support the conclusion that the March 2001 accident substantially contributed to the employee=s hand/wrist condition, her need for surgery, and her resulting disability.  While Dr. Smith=s opposing opinion was also reasonable and plausible, it is not our function to substitute our judgment for the compensation judge=s on issues such as this one.  It may well be, as the employer and insurer assert, that none of the other experts Adiscussed the causation issue with the clarity of analyses provided by Dr. Smith.@  However, this was a factor for the compensation judge to evaluate and provides no basis for reversal.

 

Finally, the employer and insurer contend that the compensation judge erred in concluding that the employee=s work-related automobile accident caused a Aprobable consequential anxiety/stress disorder.@  On this point, we agree.  There is, contrary to the employer and insurer=s arguments, evidence in the record to support the judge=s conclusion in this regard.  However, the employee never made any specific claim for psychological injury in her claim petition or even in opening statements at the hearing.  Basic fairness requires reasonable notice and opportunity to be heard before decisions affecting benefit entitlement may be made.  Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).  The fact that the Anature and extent@ of the employee=s work injuries was at issue does not mean that it was appropriate for the judge to make a finding as to causation for a condition that was never specifically claimed to be work-related.

 

Because substantial evidence supports the judge=s decision that the employee=s March 5, 2001, accident permanently aggravated her neck, mid back, low back, and bilateral hand/wrist conditions, we affirm his decision on that issue.^[3]  However, because no claim for psychological injury was presented to the judge for decision, we vacate his finding as to the employee=s Aprobable consequential anxiety/stress disorder.@

 

2.  Weekly Wage

 

One of the primary issues in this matter is the employee=s weekly wage on the date of her work injury.  The employee was compensated on a straight commission basis, and it is essentially undisputed that her wage was Airregular@ or difficult to determine within the meaning of Minn. Stat. ' 176.011, subd. 3.  It is also undisputed that, due to her time off work for knee surgery beginning in October of 2000, the employee worked relatively few weeks in the 26-week period prior to her March 5, 2001, accident.  The employee contended at hearing that her weekly wage was $1,406.21, calculated under the statutory formula contained in Minn. Stat. ' 176.011, subds. 3 and 18, based on evidence indicating that she had earned a total of $11,249.69 during the eight weeks she allegedly worked in the 26-week pre-injury period, over a total of 29 days worked in that eight-week period.^[4]  The employer and insurer, on the other hand, contended primarily that, because the employee had worked for such a brief period prior to her injury, the compensation judge should impute a weekly wage based on the testimony of the employer=s president, who indicated that sales representatives in the employee=s work territory earned, on average, $28,000 to $32,000 a year, or, assuming a $30,000 average salary, $576.92 per week.  The compensation judge concluded that the employee=s weekly wage was $953.86.  After review of the record, we conclude that the matter must be remanded for reconsideration of this issue.

 

We note initially that the compensation judge expressly concluded that the retained 5% Ahold back@ should not be included as part of the employee=s wage because it might never be paid to the employee.  However, the total earnings starting figure used by the judge does not match the earnings evidenced by the employee=s actual pay stubs; rather, it appears that the judge may have based his calculations on a payment summary exhibit that did include the Ahold back@ amounts, and, in addition, that the judge may have calculated the employee=s wage based solely on commissions received by the employee while working, rather than on commissions earned by the employee while working.^[5]  Moreover, while the employee testified that she worked only eight weeks during the 26-week pre-injury period, the judge=s calculations assumed that the employee worked ten weeks, a discrepancy not explained in the judge=s findings or memorandum.^[6]  Furthermore, the employee conceded at hearing that she had deducted $530.00 on her 2000 income tax return for mileage expenses associated with her work for the employer specifically, and the judge did not explain why he declined to consider these expenses in calculating the employee=s actual earnings from her job.  See, e.g., Brown v. Boxers Grill & Party Pub, slip op. (W.C.C.A. Mar. 31, 1998) (the compensation judge reasonably concluded that ledger sheets kept by the employee reflected his earnings after expenses for purposes of calculating weekly wage); Jones v. D.J. Serv. Ctr., slip op. (W.C.C.A. Dec. 12, 1991) (approving calculation of weekly wage by deducting expenses from revenue).  Finally, the judge did not even discuss the employer and insurer=s theory that the employee=s wage should be determined by comparison with other, similarly situated workers, given the employee=s brief work history with the employer, in accordance with the reasoning of Bradley v. Vic=s Welding, 405 N.W.2d 243, 39 W.C.D. 921 (Minn. 1987) (while weekly wage is frequently based on actual earnings, circumstances sometimes make actual earnings an unreliable measure of future earning capacity).

 

The wage issue here was difficult, and we intend to imply no criticism of the judge=s attempt to arrive at a fair approximation of the employee=s future lost earning capacity.  However, for the reasons stated above, we remand the matter for reconsideration and new findings.

 

3.  Temporary Total Disability

 

The compensation judge awarded the employee temporary total disability benefits from May 14, 2001, through the date of hearing and continuing.  On appeal, the employer and insurer contend that the judge erred in awarding benefits from May 14, 2001, through June 5, 2002, because, they maintain, the employee was not totally disabled prior to her June 5, 2002, right hand surgery.  In support of this contention, the employer and insurer note that the employee admittedly looked for no work at all after leaving her job with the employer in May 2001, and they allege that no physician removed the employee from all work until June 5, 2002.

 

The compensation judge did not explain the basis for his award of temporary total disability benefits.  However, contrary to the employer and insurer=s contention, Dr. Haase indicated in a September 6, 2001, office note, well prior to the employee=s June 5, 2002, surgery, that he had Aconcerns about her being able to work due to the [medication] that she is on . . . . At this point and since her injury she has been unable to work for the various reasons just stated.@  Subsequently, in a September 3, 2002, report, Dr. Haase reiterated that her work injuries had rendered the employee disabled since the date of her accident.  Dr. Shogren said essentially the same thing in his September 10, 2002, report.  Moreover, an October 2001 report from the Vocational Rehabilitation Unit of the Department of Labor and Industry concludes that the employee would not benefit from formal rehabilitation assistance because she could not return to her pre-injury position and her upper extremity condition Awould exclude her from most if not all other jobs as well.@  This evidence amply supports the judge=s temporary total disability benefit award, and the fact that some opinions as to total disability may have been solicited in anticipation of litigation was for the compensation judge to weigh and is essentially irrelevant for appellate review purposes.  In that the record as a whole supports it, we affirm the judge=s decision on this issue.

 

4.  Penalties

 

The employee appeals from the compensation judge=s failure to award penalties based on her claim that the employer and insurer had frivolously denied liability for the employee=s injuries up until the hearing date.  However, no penalty claim was asserted prior to hearing.  Under these circumstances, any decision by the judge on penalties would have been improper.  See Kulenkamp v. Timesavers, Inc., 420 N.W.2d 891, 40 W.C.D. 869 (Minn. 1988).