TINA M. ST. JOHN, Employee, v. MENARDS, and FIREMAN=S FUND INS. CO., Employer-Insurer/Appellants, and MENARDS, and RELIANCE INS. CO./MEADOWBROOK INS. GROUP, Employer-Insurer/Cross-Appellants, and MENARDS, and STAR INS. CO., Employer-Insurer, and  MEDICA BY HEALTHCARE RECOVERIES, ST. MARY=S/DULUTH CLINIC, and LEFEBVRE COS. BY BENEFIT PLAN ADM=RS, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 8, 2003

 

HEADNOTES

 

GILLETTE INJURY.  Substantial evidence supports the determination of the compensation judge that the employee sustained a Gillette injury to both hips. 

 

TEMPORARY TOTAL DISABILITY.  Substantial evidence supports the determination of the compensation judge that the employee was temporarily totally disabled for a period of eight weeks between hip replacement surgeries where the employee was experiencing buckling of her hips which caused her to fall on at least one occasion.

 

CALCULATION OF BENEFITS.  The employee was entitled to payment of benefits pursuant to Kirchner where she was entitled to temporary partial disability compensation from her 1995 injury at the time she sustained her 2000 injury which resulted in total disability.

 

Affirmed.

 

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

Compensation Judge: Donald C. Erickson

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

Fireman=s Fund Insurance Company appeals the compensation judge=s failure to apportion liability for wage loss benefits.  Reliance Insurance Company appeals the determination of the compensation judge that the employee sustained a Gillette^[1] injury to the hips culminating on December 31, 2000 and from the compensation judge=s award of temporary total disability benefits and from the compensation judge=s order of partial reimbursement of certain medical expenses.  We affirm in part, reverse in part and modify in part.

 

 

BACKGROUND

 

Tina St. John, the employee, was 34 years old when she began working for Menards in Duluth in July 1992.  The Menards store had just been built when the employee started, so initially she helped put up store fixtures and placed products in the store.  The employee worked in the electrical department at the store thereafter, helping customers find what they wanted, stocking items and unloading pallets of freight destined for her department.  The employee=s work required her to be on her feet constantly and to be up and down ladders, either stocking items or retrieving items for customers.  The employee=s work duties required lifting in excess of fifty pounds. 

 

The employee had a congenital condition of both hips, referred to as dysplasia with shallow hip sockets.  The employee testified that this condition was discovered sometime before she began working for Menards and that a doctor told her that some day she would probably need hip replacement surgery.  There are no medical records in evidence of that consultation.  On February 20, 1990, the employee was seen by Dr. C. M. Counihan at the Duluth Clinic.  Dr. Counihan, whose specialty is not identified, saw the employee on referral because of back aching, abdominal aching and positive ANA.^[2]  In the history, Dr. Counihan noted Aa little bit of left lateral hip pain recently,@ but in his assessment did not mention the hip condition or recommend any treatment for it. 

 

In an x-ray report from May 16, 1994, Dr. C. M. Peterson noted shallow acetabula bilaterally with slight straightening of the normal angle between femoral neck and shaft.  The hip joint space was well maintained and no change from the examination of August 2, 1990 was found.  No records of the August 2, 1990 examination and x-ray are in evidence.  While the employee telephoned her family doctor twice for pain medication in 1993 and 1994 because of problems with her hips, there is no evidence that the employee otherwise treated for hip complaints before September 11, 1995. 

On September 11, 1995, the employee sustained an admitted work injury at Menards.  She was moving a large box which was on a pallet.  She was pushing on the box with both hands and bracing her left leg to help push the box.  As she did so she felt a severe pain in her left groin area.  The employee initially treated with her family doctor at Skyline Medical Clinic in Duluth, Dr. Craig Anderson.  Examination showed that when the employee attempted to flex her hip against resistance she was uncomfortable.  The doctor diagnosed a muscle strain and took the employee off work before returning her to work on a light duty basis.  When the employee=s groin pain did not resolve, she was referred by her family doctor to Dr. Daniel Wallerstein, a physical medicine and rehabilitation specialist.  Dr. Wallerstein diagnosed strain at the iliopsoas muscle and hip adductor group.  Light duty work restrictions were continued and the employee was given medication for pain control as well as a prescription for physical therapy.  When she saw Dr. Wallerstein again on November 8, 1995 she complained of her hip and groin area locking up as well as continued pain in her groin area. 

 

The employee missed approximately one week of work due to her injury and then returned to her regular job at Menards.  The employee testified that Menards attempted to accommodate her restrictions and generally they were able to do so but there were occasions, especially involving the unloading of freight, in which the employee would be expected to work outside of her restrictions.  The employee testified that from the date of injury of September 11, 1995 and continuing she was never free from left groin/hip pain. 

 

On November 26, 1996 the employee sustained another injury at Menards.  She was lifting a box of extension cords when she felt a pull and pain in her left groin area.  She continued to treat with Drs. Anderson at Skyline Medical Clinic and Wallerstein at Northland Rehabilitation Associates.  The employee was continued with restrictions in lifting.  On August 12, 1997 the employee was seen by Dr. W. E. Gower at Orthopedic Associates of Duluth.  Dr. Gower diagnosed bilateral congenital hip dysplasia with symptoms primarily on the left.  He provided a different anti-inflammatory medication and saw her in another three weeks.  She reported at that time considerable improvement in her left hip symptoms.

 

In May 1999 the employee consulted with Dr. Jed Downs at the Duluth Clinic regarding her symptoms.  The employee testified at hearing that she wanted to see him because the Apain was still there and getting worse and nobody could seem to figure out what it was.@  It was Dr. Downs= initial impression that the employee=s symptoms were due to a low back condition and an MRI done June 14, 1999 in fact showed a herniated disc at the L5-S1 level with some compression of the S1 nerve.  The employee was referred to Dr. James Callahan at Duluth Clinic for a surgical consultation and Dr. Callahan concluded that the employee=s conditions was not due to her lumbar spine.  In his office note of August 31, 1999, Dr. Downs then concluded that the employee=s situation was due in substantial part to her hips.  His impression, as noted in his chart note of August 31, 1999, was of Aleg pain, not secondary to lumbar spine and disc problems as previously thought to be the case, with decreased hip range of motion on the left suggesting DJD, possibly acutely acquired in 1995.@  At the September 16, 1999 office visit, Dr. Downs permanently restricted the employee to work four hours a day.  Dr. Downs concluded that the employee=s care should be transferred to an orthopedist and the employee began treating with Dr. Thomas Patnoe, an orthopedist at Duluth Clinic.  Dr. Patnoe=s office note of September 21, 1999 stated that the employee=s Awork seems to be quite aggravating factor for her current symptoms.@  Work restrictions were placed on the employee by Dr. Patnoe in October 1999, where he recommended sedentary type employment that did not involve prolonged standing and walking, climbing, lifting, kneeling and squatting. 

 

At the request of the employer and its 1995 insurer, Fireman=s Fund Insurance Company (Fireman=s), the employee was evaluated on December 10, 1999 by Dr. John Dowdle.  Dr. Dowdle=s diagnosis was that of a left inguinal strain.  He related the employee=s current symptoms to her 1995 injury. 

 

The employee continued to work at Menards with restrictions.  In September 2000 the employee was restricted to part-time work and was taken out of the electrical department and asked to perform primarily office functions.  On December 31, 2000, the employee was taken off work by Dr. Patnoe.  Dr. Patnoe performed left hip replacement surgery on April 26, 2001.  Right hip replacement surgery was done on November 20, 2001. 

 

The employee filed a claim petition on April 12, 2000, alleging that as a result of the September 11, 1995 injury she was entitled to certain wage loss benefits.  Subsequent amendments alleged a Gillette injury at Menards on December 31, 2000 and added claims for rehabilitation services and permanent partial disability. 

 

Fireman=s had the employee re-evaluated by Dr. John Dowdle on April 16, 2001.  In his report of that date, Dr. Dowdle diagnosed bilateral hip dysplasia and a resolved inguinal strain.  Dr. Dowdle concluded that the hip problems of the employee were developmental and not due to any work injury.  He found the only consequence of the 1995 work injury to be the resolved inguinal strain.

 

The insurer for Menards on December 31, 2000 was Star Insurance Company who had coverage from September 15, 2000 through the last date the employee worked.  Star had the employee seen for an independent medical examination by Dr. Paul Wicklund on April 30, 2002.   Dr. Wicklund generated a report on that date and testified by deposition before the hearing.  Dr. Wicklund, after examination of the employee and review of records, expressed his opinion that the employee=s hip condition and need for treatment was due to her pre-existing congenital hip dysplasia.  He believed that the employee=s hip condition would have deteriorated and ultimately required surgery regardless of the work activity she performed at Menards.  It was Dr. Wicklund=s opinion that in order for a congenital condition to be affected by another activity in life it would be necessary to demonstrate that the activity is Aextreme, excessive, and has a history of causing these sorts of early degenerative changes in an otherwise fairly normal joint.@ 

 

Reliance Insurance Company, which provided coverage for Menards between May 1, 1997 and September 14, 2000 was also a party in this matter.  The employee was evaluated by Dr. Jack Drogt on behalf of Reliance on April 19, 2002.  In his report of April 19, 2002, Dr. Drogt concluded that the injury of September 11, 1995 was a temporary aggravation of the employee=s underlying degenerative condition of hip dysplasia and that subsequent symptoms were due to the normal course of deterioration and degeneration known to occur given the hip pathology.  Dr. Drogt rejected the conclusion that the employee had sustained a Gillette injury since, in his opinion, any activity whether it was work related or not would have contributed to the employee=s discomfort and progression of her disease.

 

The employee was also evaluated by Dr. Duane Person at the request of her attorney.  It was Dr. Person=s conclusion that both the September 11, 1995 injury and the work activity the employee engaged in at Menards from 1995 through December 31, 2000 were aggravating factors in the progression of the employee=s hip condition and were substantial contributing factors in her need for treatment and resulting wage loss.

 

This matter came for hearing before Compensation Judge Donald Erickson on July 23, 2002.  In his Findings and Order, served and filed December 5, 2002, the compensation judge determined that the employee sustained a Gillette injury on December 31, 2000 for which Reliance Insurance Company was responsible, determined that the employee=s bilateral hip condition was in substantial part due to the Gillette injury of December 31, 2000 and the injury of September 11, 1995, determined that the employee was entitled to temporary total disability for the period of January 1, 2001 to March 11, 2002 and temporary partial disability for the period September 16, 1999 through December 31, 2000 and determined that the employee was entitled to permanent partial disability of 8 percent of the whole person for each hip.  The parties stipulated that the employee=s average weekly wage was $306.43 on September 11, 1995 and $236.46 on December 31, 2000.

 

Fireman=s has appealed the compensation judge=s failure to apportion responsibility for the employee=s temporary total disability between Fireman=s and Reliance.  Reliance has appealed the compensation judge=s determination of a Gillette injury, the award of temporary total disability and whether certain medical expenses ordered to be paid were properly the responsibility of Reliance.

 

DECISION

 

1. Gillette Injury

 

Reliance appeals the compensation judge=s finding that the employee sustained a Gillette injury to her hips, which culminated on December 31, 2000.  Reliance argues that substantial evidence to support this finding does not exist in that Acompetent medical evidence is lacking.@  We disagree. 

 

While the employee had a pre-existing condition, the employee=s injury is compensable if the work activity aggravated or accelerated the condition.  Gillette v. Harold, Inc., 257 Minn. 313, 22, 101 N.W.2d 2002, 06, 21 W.C.D. 105, 114 (1960).  The question of causation in a Gillette injury is primarily based upon medical opinion.  Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987). 

 

The employee=s claim in this case was supported by Dr. Duane Person.  It is argued that Dr. Person=s opinion lacked foundation because he Aspecifically rejected critical evidence of record,@ referring to an argument by the insurers that the employee always worked within restrictions set by her doctors and that, accordingly, she could not have developed a Gillette injury.  However, the employee testified that, while she generally worked within her restrictions, she exceeded her restrictions when she would handle freight or work long hours.  Further, Dr. Person was aware that the employee had been on limited duty for some time before December 31, 2000.  He did not find employment within restrictions to be inconsistent with the development of a Gillette injury.  While there may be argument with this opinion, it does not go to foundation and we find no foundational lack in Dr. Person=s opinion which would make reliance on that opinion by the compensation judge reversible error.

 

While the compensation judge did not specifically identify the medical opinion upon which he relied in reaching his conclusions, there is no requirement that he do so.  While other doctors in this case may have reached contrary conclusions from those of Dr. Person, the compensation judge is not obligated to justify why he did not accept their opinions.  Regan v. VOA National Housing, 61 W.C.D. 142 (W.C.C.A. 2000).  It is evident from the lengthy and detailed findings of the compensation judge that he considered the evidence in this case most carefully.  While Reliance would have undoubtedly preferred a different conclusion, the question for our review is whether the decision of the compensation judge is supported by substantial evidence.  Finding such evidence, we are compelled to affirm.

 

2. Temporary Total Disability Benefits

 

The employee was taken off work by Dr. Downs at the time of her visit with him on January 3, 2001.  Dr. Downs referred the employee back to Dr. Patnoe for surgical work up.  The employee was continued off work by her doctors up to the date of her surgery, April 26, 2001.  On July 16, 2001, Dr. Patnoe=s chart notes stated that Afor work purposes, any employment at this time would need to be sedentary employment only.@  A workability form completed on that date released the employee to sedentary work.  On September 18, 2001, Dr. Patnoe took the employee off work again.  The employee had her right hip arthroplasty done on November 20, 2001.  The employee was released to work again by Dr. Patnoe on March 12, 2002. 

 

The employee did not look for work between July 16, 2001 and September 18, 2001.  The employee testified that during this time her right hip buckled on a number of occasions and that she fell because of her right hip buckling.  The compensation judge determined that the employee was not capable of competitive employment during this period and awarded temporary total disability benefits.  Reliance appeals this award and argues that the employee is precluded from the receipt of temporary total disability by Minn. Stat. ' 176.101, subd. 1(g).

 

Although the employee=s treating doctor released her to sedentary work, it is within the province of the compensation judge to conclude that the employee is not capable of employment, based, at least in part, on the testimony of the employee.  The extent of the employee=s disability is a question of fact for the compensation judge.  Nelson v. Northern Milk Prods., slip op. (W.C.C.A. Dec. 11, 1998).  We conclude the determination of the compensation judge that the employee was not capable of employment between July 16, 2001 and September 18, 2001 is supported by substantial evidence.  The provisions of Minn. Stat. ' 176.101, subd. 1(g) do not apply.  The compensation judge=s award of temporary total disability compensation benefits is affirmed.

 

3. Calculation of Wage Loss Benefits

 

The compensation judge ordered the payment of temporary partial disability compensation from September 16, 1999 through December 31, 2000, with those benefits to be paid by Fireman=s, the insurer for the 1995 injury.  Although Fireman=s has appealed this finding, it was not briefed and is therefore considered waived.  Minn. R. 9800.0900, subp. 1.

The compensation judge found a Gillette injury of December 31, 2000 for which liability was imposed upon Reliance.^[3]  The compensation judge further found that both the 1995 and 2000 injuries substantially contributed to the employee=s medical expenses, permanent partial disability, need for rehabilitation consultation and temporary total disability.  Fireman=s was designated as the paying agent and Reliance was ordered to reimburse Fireman=s one half the cost of medical expenses, permanent partial disability and rehabilitation consultation expenses. 

 

With regard to temporary total disability compensation, the compensation judge ordered benefits to be paid based on the employee=s wage on December 31, 2000 but ordered Fireman=s, the 1995 insurer, to pay those benefits without any reimbursement from Reliance.  Fireman=s has appealed the compensation judge=s failure to apportion temporary total disability compensation and the failure to order reimbursement by Reliance.  We reverse.

 

We do not find that this is a case in which the principles of equitable apportionment apply to the award of temporary total disability compensation.  Equitable apportionment and the application of Kaisershot^[4] apply where the employee is not eligible for temporary partial disability compensation at the time of the second injury.  Groth v. Dotson Company, 60 W.C.D. 52 (W.C.C.A. 2000).  We conclude rather that the award of wage loss benefits after January 1, 2001 is subject to Kirchner.^[5] 

 

Under Kirchner an employee who is receiving or who is eligible for temporary partial disability and who sustains a new injury which is totally disabling will receive wage loss benefits from the first injury at the rate for temporary partial disability and will also receive wage loss benefits for the second injury at the rate for temporary total disability.  Both benefits together may not exceed the statutory maximum for temporary total disability in effect at the time of the second injury.

 

The compensation judge in this case concluded that benefits pursuant to Kirchner could not be awarded because the employee was not actually receiving temporary partial disability benefits at the time of her Gillette injury on December 31, 2000.  However, the employee was entitled to those benefits as of that date and this court has previously determined that actual receipt of temporary partial disability is not a prerequisite to payment of benefits pursuant to Kirchner.  Geller v. Curran-Houston, Inc., 58 W.C.D. 66 (W.C.C.A. 1997). 

 

This court has also held on numerous occasions that the amendment to Minn. Stat. ' 176.101, subd. 2(b), which limits payment of temporary partial disability to working employees does not preclude payment of benefits pursuant to Kirchner.  Frankhauser v. Fabcon Inc., 57 W.C.D. 239 (W.C.C.A. 1997).  Kirchner does not create an independent right to payment of temporary partial disability but simply specifies how to calculate responsibility for injuries which have resulted in total disability.  Clausen v. Dotson Company, 58 W.C.D. 153 (W.C.C.A. 1998).

 

Finding 61 and Orders 2 and 4 are reversed.  For the period from January 1, 2001 to March 11, 2002, Fireman=s shall pay the employee wage loss benefits at the rate it was paying temporary partial disability compensation as of December 31, 2000.  Reliance shall pay benefits to the employee for the same period at its rate for temporary total disability compensation, $157.64 per week.

 

4. Medical Expenses

 

The compensation judge ordered Reliance to reimburse Fireman=s one half of the medical expenses which were incurred after May 1, 1997.  As Reliance aptly points out, it should not be liable for benefits which pre-date the injury for which it is responsible.  Finding 67 and Order 14 are modified to indicate that medical expenses incurred after December 31, 2000 are to be the subject of partial reimbursement from Reliance to Fireman=s.