RALPH HILLER, Employee, v. PARKER HANNIFIN, SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT. SERVS., Employer-Insurer/Appellant, and FAIRVIEW HEALTH SERVS., Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 14, 2004

 

File No. WC04-198

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(h).  A written report placing restrictions on the employee is not necessary for the compensation judge to determine that the employee continues to have limitations on his ability to return to work.  The compensation judge may rely on the credible testimony of the employee and on the record as a whole.

 

Affirmed.

 

Determined by: Stofferahn, J., Rykken, J., Johnson, C.J.

Compensation Judge: Bradley J. Behr

 

Attorneys:  Robert T. Brabbit, Brabbit & Salita, Minneapolis, MN, for the Respondent.  Thomas J. Peterson, McCollum, Crowley Moschet & Miller, Bloomington, MN, for the Appellant.  Jeremiah Sisk, St. Paul, MN, for the Intervenor.

 

 

OPINION

 

DAVID A. STOFFERAHN,  Judge

 

The compensation judge determined that the employee was entitled to temporary total disability benefits after April 12, 2004.  The self-insured employer appeals, contending that the compensation judge erred in failing to apply Minn. Stat. ' 176.101, subd. 1(h). We affirm.

 

BACKGROUND

 

Ralph Hiller worked for Parker Hannifin from 1964 to 2004. For the last thirty-six years of his employment there, he operated a Madison grinder.  The grinder had a table approximately forty inches tall and the employee would place parts to be ground on the table.  The parts usually consisted of hydraulic valves and pumps and weighed between 2 to eight pounds.  The machine would grind as many as eighty items at a time. While the machine ran a cycle for about ten to fifteen minutes, the employee could sit and monitor the machine.  After the cycle was completed, he would turn the parts over for another cycle and then remove the parts.  He then had to clean them and place them in appropriate boxes.  The employee worked on about 280 to 350 parts per shift.  At times the employee would also have to adjust the grinding head, which was a separate part located above the table.

 

On September 16, 2002, the employee was helping a co-worker adjust the grinding head on another grinder.  In doing so, he was standing on top of the table and when he stepped off, he slipped on oil on a box he was using to step down.  When the employee slipped, he heard a pop in his left knee and felt immediate pain on the inside of his left knee.  The employee reported the injury but kept working, assuming that his knee pain would lessen.

 

The employee first sought medical care for his knee pain on October 8, 2002, when he went to the emergency room at Fairview Northland Regional Hospital.  Effusion in the left knee was noted and the employee received a knee brace and an injection of Decadron.  He was advised to continue treatment with his regular doctor, Dr. Daniel Fordahl.  The employee continued to work his regular job and hours, wearing his knee brace.

 

The employee was then referred by Dr. Fordahl for an orthopedic consultation and saw Dr. David Edwards. The employee first saw Dr. Edwards on November 18, 2002.  Dr. Edwards recommended arthroscopic surgery on the left knee and this was done on January 20, 2003.  A torn meniscus had been suspected but the meniscus was found to be in good condition and Dr. Edwards removed loose bodies from the knee joint.  The employee was off work and received temporary total disability compensation benefits from January 20, 2003, through February 16, 2003.  He then returned to his regular job.

 

The employee received physical therapy in April and May 2003.  He testified at hearing that the surgery and the physical therapy did not relieve his left knee pain.  In June 2003, the employee was referred to another orthopedist, Dr. Owen O=Neill, for further treatment.  Dr. O=Neill initially provided a series of Synvisc injections and, when that treatment did not reduce the employee=s pain, he recommended further surgery, an unicondylar arthrosis.

 

At that point, the employee was evaluated at the request of the employer by Dr. Stephen Barron on October 20, 2003.  Dr. Barron=s conclusion was that the employee=s condition and need for treatment were not related to his work injury of September 16, 2002.  The employer denied liability for the proposed surgery and on December 17, 2003, the employee filed a claim petition for wage loss and medical expenses.

 

During this period of time, there were also changes in the employee=s employment situation.  The employer had been reducing its work force in Minnesota and in December 2003 the employee was advised by letter that he and other employees would be terminated as a part of this reduction.  The employer advised the employee that he would receive a separation bonus and other benefits.  As initially sent, the separation date was set as January 31, 2004, but it was later modified to provide for a separation date of April 12, 2004.

 

The employee had the unicondylar arthrosis done on January 13, 2004.  When he saw Dr. O=Neill on January 27, 2004, Dr. O=Neill noted the employee was doing well and would continue to return to activities as tolerated.  On March 2, Dr. O=Neill stated that the employee had increased pain with long periods of standing and that the employee would likely return to work in approximately five weeks.  There are no subsequent chart notes from Dr. O=Neill in the record.

 

The employee=s claims were heard by Compensation Judge Bradley Behr on April 13, 2004.  At the hearing, the employee presented a prescription note from Dr. O=Neill dated April 7, 2004, which stated in its entirety, APt may return to unrestricted work 4/12/04.@  The employee testified that he had requested this note from Dr. O=Neill.  According to the employee, he was advised by the employer that his separation and that of sixty co-workers could not be completed and the separation package could not be paid until he was released to return to work.  The employee obtained the note from Dr. O=Neill, brought it to the employer, and the separation agreement was then completed.  The employee testified that, despite the note from Dr. O=Neill, he was not capable of doing his regular job.  He testified that when he stood for more than five minutes or tried to walk fast, he had aching in his leg.

 

A number of issues were presented to the compensation judge for determination.  The issue relevant to this appeal was whether the employee was entitled to temporary total disability benefits after April 12, 2004.  The employer argued at hearing that the employee was not entitled to those benefits because he had been released to work without restrictions as of that date and under Minn. Stat. ' 176.101, subd. 1(h), temporary total disability benefits should cease.  In Findings and Order issued May 20, 2004, the compensation judge awarded temporary total disability compensation after April 12, 2004.  The compensation judge accepted the employee=s testimony of continuing restrictions which he determined supported an award of ongoing benefits.  The employer appeals.

 

DECISION

 

An employee is not entitled to temporary total disability if he or she is able to return to work without restrictions, Ahaving suffered no residual disability from his work injury.@  Kautz v. Setterlin Co., 410 N.W.2d 843, 845, 40 W.C.D. 206, 208 (Minn. 1987).  The question of whether the employee has any residual disability and is able to return to work without restrictions is one of fact for the compensation judge to determine.  Hoy v. Employment Plus, slip op. (W.C.C.A. September 3, 2003).  Written restrictions from a doctor are not necessary for a compensation judge to determine that an employee has continuing limitations in the ability to be employed.  Flaten v. Kohl=s, slip op. (W.C.C.A. March 19, 1998).  A compensation judge may rely on the credible testimony of the employee to establish that the employee has a disability which limits the ability to work.  Brening v. Roto-Press, Inc., 237 N.W.2d 383, 28 W.C.D. 225 (Minn. 1975); Hanson v. Bagley Hardwood Prods., Inc., slip op. (W.C.C.A. January 2, 2002).

 

In the present case, the compensation judge considered all of the evidence in reaching his conclusion that the employee continued to have a residual disability which entitled him to temporary total disability.  We find substantial evidence to support this decision in the testimony of the employee regarding his restrictions, the nature of his pre-injury job, and the circumstances surrounding the issuance by Dr. O=Neill of the April 7, 2004, return to work note.

 

The employer argues that the addition to the statute of Minn. Stat. ' 176.101, subd. 1(h), in 1995 required a different result in this case.  We are not persuaded.  Minn. Stat. ' 176.101, subd. 1(h), provides: ATemporary total disability compensation shall cease if the employee has been released to work without any physical restrictions caused by the work injury.@  The employer concedes that in the typical workers compensation litigation in which the employee=s doctor places restrictions and the IME presents an opinion that the employee has no restrictions, the statute does not require that temporary total disability cease.  The existence of one report does not trigger the application of the subparagraph.  The compensation judge still must make a factual determination as to whether or not the employee is limited in the ability to return to work.  We conclude here that the compensation judge made a factual determination on the employee=s ability to return to work which is supported by substantial evidence.

 

The employer contends, however, that the statutory language requires a medical opinion based on objective medical evidence in order for the compensation judge to find that the employee continues to have restrictions.  We find nothing in the statute=s language which establishes that requirement.  It appears, rather, that the statute focuses on the result, Areleased to work without any physical restrictions,@ and does not specify how the compensation judge must reach that determination.  We conclude that the question of whether the employee continues to have physical restrictions remains a factual determination for the compensation judge to make after considering all of the evidence.  In this case, Minn. Stat. ' 176.101, subd. 1(h), does not require that the employee=s temporary total compensation be discontinued as of April 12, 2004, since the compensation judge found that the employee continued to have restrictions from the work injury.  We find substantial evidence to support the compensation judge=s award of temporary total disability  compensation after that date and his determination is affirmed.