MARY HAUGEN TOMLIN, Employee/Cross-Appellant, v. ROCCO ALTOBELLI BEAUTY SALONS and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and MEDICA by HEALTHCARE RECOVERIES, INC., FAIRVIEW HEALTH SERVS., THE MPLS CLINIC OF NEUROLOGY and DR. FRANK WEI, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MARCH 24, 2003

 

                                                                No. 475-58-3556

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including the employee=s testimony, medical records, and expert medical opinion, supported the finding that the employee=s cervical injury was causally related to her work activities for the employer. 

 

JOB SEARCH - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the finding that the employee=s job search was less than diligent.  Under the facts of the case, the compensation judge did not err in requiring a reasonably diligent job search despite the absence of rehabilitation services and the lack of a job offer by the employer.

 

TEMPORARY PARTIAL DISABILITY.   The compensation judge's finding that the employee had failed to prove that all of her wage loss between June 13 and September 21, 2000 was causally related to her disability was supported by substantial evidence and was not clearly erroneous.  In light of this finding, the compensation judge did not err in failing to apply a presumption that all of the employee=s post-injury wage loss was related to her work injury.  

 

Affirmed.

 

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

Compensation Judge: John Ellefson

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the finding that the employee sustained a work-related Gillette^[1] injury culminating on June 13, 2000.  The employee cross appeals from the denial of temporary partial disability compensation for certain dates between June 13, 2000 and September 21, 2000, and from the finding that the employee failed to conduct a reasonably diligent job search after February 28, 2002 and the denial of temporary total disability benefits during that period.  We affirm.

 

BACKGROUND

 

The employee,Mary (Haugen) Tomlin, began working for the employer, Rocco Altobelli Beauty Salons, in August 1999.  Most of her work was performed in the employer=s filling department, where she worked on the employer=s production line bottling and packaging hair care products.  When working on the production line, the employee was rotated among four jobs: placing bottles into the line for filling, capping bottles, inspecting labels, or placing finished bottles of products into boxes and placing the boxes on a shipping pallet.  Most commonly, the employee worked at the capping job.  The production line ran at a rapid pace and the employee testified that the motions involved in many of these various tasks, particularly including those she most frequently performed, involved either constant repetitive movement of her neck or prolonged holding of her neck in a static position.  In addition to work on the production line, the employee also was occasionally assigned to assist in cleaning duties in a training salon.  On rare occasions the employee was also assigned to assist in stacking boxes in the employer=s warehouse.

 

By April or May 2000, the employee started to experience chronic neck pain and headaches.  By early June 2000, these had increased and the employee went to the Fairview Urgent Care Clinic in Bloomington on June 13, where she described her neck pain as feeling Alike she slept on it wrong.@  She was unable to associate the onset of or increase in her pain with any specific traumatic event.  The employee was treated with Flexeril and a brief course of physical therapy which did not greatly relieve her symptoms. 

 

On September 22, 2000, the employee began treating with Dr. John L. Erickson at the Fairview Ridges Clinic.  Dr. Erickson referred the employee for trigger point injections and imposed weight restrictions on lifting and carrying.  The employee returned to Dr. Erickson on October 17, 2000.  She continued to have tight neck muscles posteriorly with soreness of the upper back and shoulder muscles, as well as headaches.  Dr. Erickson recommended that the injections be continued.  However, the employee reported that the injections caused her headaches to increase.  On October 23, 2000, the employee underwent an MRI scan of her cervical spine which showed a right-sided C5-6 disc herniation.  Dr. Erickson referred the employee to a neurologist, Dr. Barbara Patrick, at the Minneapolis Clinic of Neurology. 

 

Dr. Patrick saw the employee on November 7, 2000.  The employee told her that she had to turn her head and flex her head on her neck at work and that whenever she did so she got a sharp pain in her neck and develops a headache.  Dr. Patrick recommended that the employee avoid

certain work duties, specifically filling bottles and cleaning the salon, pending reevaluation in about five weeks. 

 

On December 11, 2000, the employee saw her physicians again in follow-up for her cervical disc herniation.  She was complaining of new symptoms, including pain down her right arm and numbness in her right thumb.  The employee was taken off work by Dr. Erickson.  The employee exhibited very limited neck flexion and lateral rotation.  Dr. Patrick referred the employee to a neurosurgeon for evaluation due to failure of conservative treatment.

The employee was next seen by Dr. John C. Mullan, a neurosurgeon.  Dr. Mullan saw the employee on December 21, 2000.  In his initial consultation with the employee he apparently gained the impression that the employee associated the emergence of her symptoms with a specific incident involving pushing a cart at work, although in her hearing testimony she denied telling the doctor this.  In any event, Dr. Mullan recommended surgery in the form of a right-sided hemilaminectomy and microdiscectomy at the C5-6 level, which was performed on December 29, 2000.

 

A  post-operative MRI scan of the employee=s neck taken in February 2001 showed the possibility of a recurrent disc or protrusion at the C5-6 level, and the employee also had a recurrence of symptoms as well as increased discomfort into her right arm.  She was provided with further physical therapy but did not find that this appreciably changed her symptoms.  In March 2001, the employee was referred to Dr. Frank Wei, who recommended C6 selective nerve root injections and continuation of physical therapy.  A CT myelogram performed on April 9, 2001 showed an absence of signal in the right-sided C6 dural sleeve. 

 

The employee declined the recommendation for injections, and began treating instead with Dr. Alejandro Mendez, a neurosurgeon at the University of Minnesota, on referral from Dr. Erickson.  Dr. Mendez saw the employee in October 2001, and noted that she exhibited a restricted range of cervical flexion, rotation and extension as well as midline tenderness of the cervical spine.  Dr. Mendez considered the employee=s post-operative MRI and CT myelogram findings to be consistent with a residual/recurrent right C5-6 disc herniation.  The employee elected to proceed with surgery recommended by the doctor, and on October 24, 2001, Dr. Mendez performed a C5-6 anterior discectomy and fusion with bilateral foraminotomies. 

 

On February 28, 2002,  Dr. Mendez noted that the employee had experienced a good recovery from her surgery and was now able to return to work on a part-time basis, starting at two hours per day and increasing to four hours per day as tolerated, to increase to full-time within two months if tolerated.  He restricted the employee to a 20-pound weight limit for three months, and then 40 pounds permanently. 

 

The employee testified that she started a job search without rehabilitation assistance beginning in April 2002.  She sought work by looking in the telephone book and the newspaper, and had made 24 job search contacts by the date of the hearing, August 21, 2002. 

 

The employee filed a claim petition on February 22, 2001 alleging a work injury on or about June 13, 2000, and claiming entitlement to temporary partial disability compensation and reimbursement for medical expenses.  The employer and insurer answered denying that the employee=s neck problems were causally related to her work.  The employee filed an amended claim petition on September 21, 2001, adding a claim for temporary total disability from and after December 2, 2000, and a request for a rehabilitation consultation.  The employer and insurer again answered denying primary liability. 

 

On August 21, 2002, a hearing was held on the employee=s claims before a compensation judge of the Office of Administrative Hearings.  Following the hearing, the compensation judge found  that the employee=s work activities were a substantial contributing cause of her cervical injury.  The judge awarded temporary partial disability compensation from September 22 through December 1, 2000, and temporary total disability compensation from December 2, 2000 through February 28, 2002.  However, the judge found that the employee had failed to conduct a reasonably diligent job search from February 28, 2002 through the date of hearing, and denied temporary total disability compensation for this period.  The judge further found that the employee had failed to show that all claimed periods of wage loss between June 13 and September 21, 2000 were due to her work injury and awarded only a portion of the claimed temporary partial disability during this period.  The employer and insurer appeal from the finding that the employee=s cervical injury was work-related, and the employee cross-appeals from the denial of temporary total and temporary partial disability for certain periods. 

 

DECISION

 

1. Causation, Gillette Injury

 

A Gillette injury is one which results from repetitive minute trauma brought about by an employee's ordinary job activities.  See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).  The employee "must prove a causal connection between her ordinary work and ensuing disability."  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  An employee's injury may "be characterized as a Gillette injury if the work aggravated or accelerated an underlying condition or was `a proximate contributing cause of the disability.'"  Id. (quoting Gillette, 257 Minn. at 322, 101 N.W.2d at 206, 21 W.C.D. at 114).

 

The employer and insurer contend on appeal that the employee failed to prove a causal connection between her work and her cervical disc injury.  They argue that the employee=s accounts of the mechanism of injury had been inconsistent.  Specifically, they point to statements in the employee=s medical records in which various physicians indicated that the employee related her injury to specific work incidents, including lifting duties during overtime work or pushing a pallet or cart.  They further point out that the employee acknowledged in her hearing testimony that she had been in error about the dates of her overtime, and also that she could not clearly associate the emergence of her symptoms with any of the alleged specific incidents.  They contend that, as a result of the inconsistencies, the employee was not a credible witness and that the compensation judge erred in accepting as credible her hearing testimony that she experienced a gradual onset of symptoms associated with the repetitive neck movements and prolonged stationary neck positions involved in the most frequent work duties she performed for the employer. 

 

We note, however, that the employee=s medical records also include early and frequent mentions of the repetitive motions in her work.  In addition, several records indicate that the employee was unsure exactly what had caused her symptoms at work.  In some of these records the employee provided a speculative list of possible causes, including the specific incidents later mentioned by some of the physicians.  The records taken as a whole reasonably bear an interpretation that the employee was initially uncertain what it was that had caused her symptoms at work, and that the recitals by some of her physicians specifically attributing her symptoms to one of these discrete events resulted from misunderstandings which were subsequently propagated from some of the earlier physicians= records into subsequent ones.  Accordingly, we cannot say that the compensation judge clearly erred in accepting the employee=s testimony as credible in this case.  The assessment of witness credibility is the unique function of the trier of fact.  Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  This court may not disturb a finding based on credibility unless manifestly contrary to the evidence.  Tolzmann v. McCombs‑Knutson Assocs., 447 N.W.2d 196, 42 W.C.D. 421 (Minn. 1989).  Upon careful review of the record, we cannot conclude that the compensation judge=s partial reliance on the employee=s testimony was unreasonable.

 

However, even if we discount the employee=s testimony, our supreme court has indicated that the question of whether the employee sustained a Gillette injury is dependent primarily on the medical evidence.  Steffen, supra.  In finding a causal connection between the employee=s work and her cervical injury, the compensation judge expressly relied on the expert medical opinion of Dr. Erickson, who stated that the employee Ahas described her work at Rocco Altobelli in the packaging department starting in the summer of 1999 and this involved packaging shampoos and other products, filling bottles and tubes and at times moving large drums.  The work does involve static use of her neck and upper back for prolonged periods of time as well as some lifting and bending and carrying at times.@  The employee also testified that she had described her work duties to Dr. Erickson.  Dr. Erickson opined that the employee=s work activities as described were Aa significant contributing factor to her cervical disc syndrome.@  

 

The employer and insurer assert that Dr. Erickson=s opinion should have been rejected in favor of that of their medical expert, Dr. Jeffrey Dick, who denied a causal link between the employee=s work activities and her cervical condition.^[2]  Generally, this court must affirm a compensation judge=s choice between divergent medical expert opinions, unless the opinion relied upon was without adequate foundation.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  The employer and insurer contend that Dr. Erickson=s opinion was lacking in foundation because a letter from the employee=s attorney to Dr. Erickson describing the employee=s work stated that it involved Arepetitive if not strenuous use of the employee=s upper extremities and the head to be held in a fixed, flexed position.@  Although acknowledging that the employee=s job duties on the production line were repetitive, they assert that neither under the employee=s testimony nor under the testimony of the employee=s supervisor could the employee=s job duties reasonably be described as strenuous.

 

To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence, and Aa doctor=s opinion regarding causation which is based on an inadequate factual foundation is of little evidentiary value" and may not be relied on by the compensation judge.  McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).  We note, however, that Dr. Erickson=s opinion does not specifically rely on a characterization of  the employee=s work as strenuous, nor does anything in his description of her duties reflect the view that the job was unusually strenuous.  The compensation judge was not required to assume that Dr. Erickson had based his opinion on a misunderstanding of the nature of the employee=s work activities.  The compensation judge specifically noted that the job duties as described by Dr. Erickson were consistent with his findings about those duties based on the evidence in the case.  As such, Dr. Erickson=s opinion did not lack proper foundation, and we must affirm. 

 

2. Job Search/Temporary Total Disability Compensation

 

The compensation judge denied temporary total disability compensation from  February 28, 2002 through the date of hearing, finding that the employee had failed to make a reasonably diligent search for work.  An employee who has been released to return to work must make a diligent job search to establish temporary total disability.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  Whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).

 

Here, the employee testified that, although she was released to return to part-time work as of February 28, 2002, she did not initiate any job search until about April of that year, and thereafter made only 24 job search contacts through the date of hearing on August 21, 2002.  On the face of this evidence, we cannot say that the compensation judge clearly erred in finding the employee=s job search to be less than diligent.

 

The employee contends on cross-appeal that the compensation judge erred in failing to excuse the limited nature of her job search because she was not provided with rehabilitation services during this period.  However, while the absence of professional rehabilitation assistance is an element to be considered in evaluating the diligence of a job search, see Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 956 (Minn. 1988), it does not relieve the employee of the burden of proving the diligence of the job search effort.  See Mattson v. State, Dep=t of Public Safety, 48 W.C.D. 77, 80 (W.C.C.A. 1992), rev'd on other grounds, 494 N.W.2d 884, 48 W.C.D. 84 (Minn. 1993) ("even where rehabilitation assistance is not provided, the employee must still make a reasonably diligent effort to find employment as best he can on his own"); see also Barrientos v. Heartland Foods, Inc., slip op. (W.C.C.A. Jan. 27, 1995).  The compensation judge was not required to overlook the limited nature of the employee=s job search as a result of the absence of rehabilitation assistance. 

 

The employee also contends that the compensation judge did not give adequate consideration to the fact that the employer and insurer did not offer a return to work within her restrictions as set forth by Dr. Mendez on February 28, 2002.  She suggests that the compensation judge reasonably might have found that the delay in her initiation of a job search was due to uncertainty whether she would be offered a return to work with the employer.  While we have previously noted that "[w]here there appears to be a reasonable possibility that an employee might return to work with his prior employer, it may not be reasonable to require an immediate search for work elsewhere."  Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995), the facts here were such as to permit the compensation judge to come to a contrary conclusion.   Among other factors, we note that when Dr. Mendez released the employee to return to work, he specifically indicated to her that she would not be able to do the kind of work she had previously performed.  The employee also testified that she did not think at that point that she would be able to do her former work duties.  Despite this, the employee did nothing to contact the employer about a return to work nor did she furnish the employer with information about her release to return to work or the nature of her restrictions.  We note further that the employee did not testify that she had delayed inception of a job search because she anticipated a return to work for the employer might be imminent.  Under these circumstances, we cannot conclude that the compensation judge clearly erred in failing to excuse the employee=s limited job search efforts on this basis.

 

3. Temporary Partial Disability Compensation

 

The employee sought temporary partial disability compensation in the amount of $615.82 based on an actual loss of earnings from June 13, 2000 through September 21, 2000.  The compensation judge found that part of the loss of earnings during this period was not causally related to the employee=s work injury and disability, and awarded the employee temporary partial disability compensation for this period in the amount of $214.50.  The employee cross appeals from the compensation judge=s denial of the remaining portion of the amount claimed.

 

In order to be eligible for temporary partial disability benefits, an employee must establish a reduction in earning capacity which is causally related to the personal injury.  Neither the fact that the employee has a permanent physical disability, nor a showing that the employee had a reduction in earnings, is sufficient, alone, to establish entitlement to temporary partial disability benefits.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48 (Minn. 1988);  Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  Whether the necessary causal relationship has been established is generally a question of fact.  Dorn, supra.  The employee has the burden of proving that the wage loss was causally related to the work injury.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990.) 

 

In the present case, the employee specifically testified that some of the days she was off work, and some of the other time off work she took during the period in question, were wholly due to factors unassociated with the effects of her work injury or its treatment.  The evidence also included the employee=s monthly calendars.  Annotations made by the employee on these calendars also suggested that significant amounts of the time the employee took off work during this period were due to noninjury-related factors.  The compensation judge accordingly found that Athe employee missed a great deal of work for reasons that were not related to her work injuries.  However, she also did miss some work for reasons related to the work injury. . . .@  (Finding 9.)  Based on undisclosed reasoning from the evidence, the compensation judge found that the employee had missed a total of 39 hours for reasons related to the work injury and awarded only that portion of the claimed temporary partial disability. 

 

The employee does not dispute that substantial evidence supports the finding that a portion of the her wage loss during this period was causally related to her work injury, nor does she point to any further evidence clearly indicating that any or all of the remaining uncompensated wage loss was in fact related to her work injury.  Instead, the employee simply asserts that her earnings were presumptively the measure of her earning capacity and that, as this presumption was not rebutted by the employer and insurer, the compensation judge erred as a matter of law in failing to award temporary partial disability benefits in the entire amount claimed. 

 

We have previously rejected essentially the same argument.  See, e.g., Brechtel v. Schwickert=s of Rochester, Inc., slip op. (W.C.C.A. Feb. 8, 1995), in which this court held that the presumption of wage loss from actual earnings did not overcome a compensation judge=s finding that a wage loss was unrelated to an employee=s injury where that finding had substantial support in the evidence.  Finally, even if we viewed this case as one falling under the primary application of the presumption of wage loss from actual earnings, the compensation judge was entitled to find that the employee=s own testimony and other evidence in this case rebutted any presumption of a causal link between her wage loss and work injury which might otherwise attach to her claim.