MICHAEL J. HOMAN, Employee, v. HOFFMAN ENG=G, INC./PENTAIR CO. and LIBERTY MUT. INS. CO., Employer-Insurer/Appellants, and BONHUS HARDWARE and AMERICAN HARDWARE MUT. INS. CO., Employer-Insurer, and HEALTHPARTNERS, FAIRVIEW HEALTH SERVS., MINNESOTA DEP=T OF LABOR & INDUS./VRU, and HOFFMAN ENCLOSURES INC./DISABILITY PLAN, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

NOVEMBER 23, 2004

 

No. WC04-179

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Where the expert opinion that was relied on was properly founded on facts that were substantially supported by the evidence, including the records of the treating surgeon, and where that opinion clearly supported the judge=s decision, the compensation judge=s conclusion that the employee sustained a Gillette-type injury on the date alleged was not clearly erroneous and unsupported by substantial evidence.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY; MEDICAL TREATMENT & EXPENSE - SURGERY; TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the conclusion of the judge was supported not only by the opinion of an independent medical examiner but also by the records of the employee=s surgeon, the compensation judge=s conclusion that the employee=s first forearm surgery and immediately subsequent total disability were related to his second, overuse syndrome, work injury was not clearly erroneous and unsupported by substantial evidence.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE. Where the employee=s surgeon and the independent examiners for both employer/insurers had recommended restrictions related to the employee=s work injuries, one of the independent examiners relating restrictions solely to the employee=s second injury, the compensation judge=s conclusion that the employee was subject to restricted employment and was entitled to temporary partial disability benefits half apportioned to the employee=s second injury was not clearly erroneous and unsupported by substantial evidence, nor was there any prejudice in the judge=s award of the full amount of the benefits against the second employer/insurer where temporary partial disability benefits were no longer available under the law in effect at the time of the first injury.

 

APPORTIONMENT - REHABILITATION BENEFITS.  Where it was evident, from the development of the employee=s second, overuse syndrome, injury, from the restrictions issued by the employee=s surgeon, and from the employee=s several aborted attempts to return to his pre-injury job, that the employee had become increasingly unlikely to be physically able to return to the kind of work that he was employed at at the time of his second injury, the compensation judge=s apportionment of half of the employee=s rehabilitation expenses against the insurer on the risk for the second injury was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee may not have been rated with any additional permanent partial disability.

 

Affirmed.

 

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

Compensation Judge: Gary P. Mesna

 

Attorneys:  Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent Employee.  Michael D. Aafedt, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants Hoffman Eng'g and Liberty Mutual. Victor C. Johnson, Fitch, Johnson, Larson & Held, Minneapolis, MN, for the Respondents Bonhus Hardware and American Hardware Mutual.

 

 

OPINION

 

 

WILLIAM R. PEDERSON, Judge

 

Employer Hoffman Engineering/Pentair Co. and its insurer appeal from the compensation judge's finding that the employee sustained a Gillette-type injury[1] to his right hand and wrist in January 2001 and that that injury is a substantial contributing factor in the employee=s post-January 2001 wage loss, need for surgery on October 18, 2001, and need for certain rehabilitation assistance.  We affirm.

 

BACKGROUND

 

In the early summer of 1969, Michael Homan was permanently injured in the course of his employment with Bonhus Hardware, when his right hand slipped under a running lawnmower and he sustained partial amputation of three fingers.  Within about a month he had essentially recovered from these injuries, but on July 26, 1969, he sustained a second work-related injury at Bonhus Hardware [Bonhus], to the volar aspect of his right forearm, when he was cut about three and a half inches above the wrist by a piece of falling glass.  Mr. Homan [the employee] was sixteen years old on that date and was earning a weekly wage of $62.00.  The employee evidently severed several arteries, nerves, and tendons in the injury, which were subsequently repaired surgically. Following his surgery, the employee remained in the hospital for about four days and eventually returned with some restrictions to his job at Bonhus, which admitted liability for the injury and commenced payment of benefits.  Upon subsequent evaluation of the employee on February 9, 1970, Dr. Lester Carlander reported that the employee was continuing to experience occasional numbness in the dorsal aspect of his right index finger and thumb and tenderness at the surgical scar that might signal a neuroma, although there was full range of motion in the wrist and hand and no loss of function.  Dr. Carlander concluded that the employee had sustained a 5% permanent partial disability of the right arm as a result of his July 1969 work injury, and, in notes on Aevaluation of residual injuries to [the employee=s] hand@ six years later, on March 8, 1976, he reported that the employee was Ahaving no particular trouble, except for the amputations.  No unusual tenderness or coldness.  He has full range of motion in the remaining joints.@

 

In evidently May of either 1978 or 1980,[2] the employee began working without any physical restrictions for Hoffman Engineering/Pentair Co. [Hoffman], first in the paint department, then in the shear department, and ultimately in the brake press area, all of which jobs required substantial lifting and extensive use of the hands and arms.  Eventually, beginning in about the mid 1980s, the employee began to seek medical attention for various complaints in his right upper extremity.  On July 23, 1985, he reported experiencing pain in the region of his right trapezius musculature in the course of his work, which was succeeded the next day by numbness in his thumb, index finger, and middle finger, the diagnosis being probable cervical strain with possible mild cervical disc.  On August 5, 1986, he was treated for what was described as a A1 inch laceration, ulnar side of right wrist,@ sustained as he was Aforming a box and the box came up and hit his right wrist.@  On August 29, 1991, the employee evidently sustained an injury at work when an electrical shock went through the glove of his right hand, traveling up his right arm, across his chest, and into his left upper arm. On November 18, 1992, he reported that he had been experiencing, for about a month and a half, increasing Atingling in both hands and arms,@ although worse in the left than in the right.  On June 11, 1997, he sought treatment for pain in the volar aspect of his right wrist and forearm that had begun developing two days earlier after work, which the employee related to his work at the brake press, although denying any direct trauma.  The employee was ultimately diagnosed with right forearm fasciitis.

 

On February 23, 2000, the employee reported experiencing numbness in his right hand at using grinding or vibrating tools, and on March 8, 2000, he brought to work a restriction slip from HealthPartners Dr. Steven Slattery, indicating that he should avoid prolonged or excessively gripping with, and vibration to, his right hand, consequent to his 1969 laceration work injury.  In about April of 2000, the employee took a second job as a part-time poker dealer at Canterbury Downs.  This activity evidently caused some numbness in his thumb occasionally, but that numbness apparently did not incapacitate him in the work.  On April 27, 2000, the employee underwent a Afitness for duty evaluation@ with Dr. Orrin Mann, for a second opinion to Dr. Slattery=s.  The employee apparently reported to Dr. Mann that he had had Aongoing problems with his right hand ever since he was 15 or 16 years old@ and had been Aleft with residual pain when someone squeezes his radial forearm and that shoots into the extensor surface of the thumb, index, and middle fingers.@  After examining the employee, Dr. Mann concluded that the employee=s restrictions were appropriate, primarily Abecause he has been living with this for so many decades that he knows what does and doesn=t work for him.@ 

 

On January 19, 2001, the employee reported to Hoffman=s Employee Health Services that he had been Ahaving significant right hand pain for the past 2 weeks.@  It was noted there that the employee Ahas a history of a traumatic right hand injury in 1969 at age 16 that has resulted in ongoing problems with numbness in his right hand.@  A few days later, on January 25, 2001, the employee underwent a general physical examination with Dr. Jeffrey Russum at HealthPartners, where his chief complaint was of right wrist pain.  The employee suggested that he had experienced related pain intermittently ever since his 1969 work injuries but that it had increased over the past year and a half and had grown constant over the past two or three weeks, particularly with high force gripping or with holding on to vibrating or rotating objects.  Dr. Russum diagnosed right wrist pain secondary to overuse syndrome, referring to it as Atendonitis,@ and he restricted the employee for six weeks to light duty half days at his regular job.  Records four days later back at Hoffman=s Employee Health Services, on January 29, 2001, reflect that the employee was relating his pain Ato lifting heavy doors and cutting plastic fiberboard,@ noting that the pain Acomes and goes throughout the years.@  The condition was noted to be work related, the employee was referred for physical therapy, and he was restricted to light duty for two months, with no heavy or repetitive pushing or pulling, limited and no high-force gripping or grasping, and reduced vibration exposure.    The employee was forty-eight years old in January 2001 and was earning a weekly wage of $1,051.35, including his earnings at both Hoffman and Canterbury Downs. Upon re-examination of the employee about two months later, on March 28, 2001, Dr. Russum noted that the employee had experienced Aa dramatic increase in the pain in his forearm@ upon returning to his regular job half time a couple of weeks earlier.  Reiterating his diagnosis of A[r]ight forearm tendonitis@Adue to an overuse type of syndrome,@ Dr. Russum restricted the employee again to only light duty for two months and referred him to physical therapy.

 

On May 2, 2001, the employee was examined for Hoffman and its insurer by orthopedic surgeon Dr. Joseph Tambornino, who could not identify Aany activity at the present time causing or resulting in aggravation of an injury that occurred 32 years ago,@ concluding at the same time that the employee=s Ajob as a card dealer would, in my opinion, indicate that [the employee] does not have significant limitations of function or significant pain in the right wrist or hand.@  Dr. Tambornino concluded also that the employee had reached maximum medical improvement [MMI] and was no longer in need of any medical treatment.

 

On May 11, 2001, the employee was examined by orthopedist Dr. David Fey, on referral from Dr. Russum.  In his treatment notes, Dr. Fey stated in part as follows:

 

[The employee] sustained a severe laceration approximately 31 years ago to the volar aspect of the distal forearm. [He] reports cutting everything down to the bone.  He has had pain on and off ever since that time, but over the last year it is getting progressively worse.  He describes primarily activity related pain and numbness going into his fingers denying any symptoms at night.  He does have symptoms in the median nerve greater so than the ulnar nerve distribution. He described marked shocking sort of symptoms and pain with percussion at the area of his scar.

 

On examination, Dr. Fey found that the employee had excellent artery flow in both his radial and his ulnar distributions on Allen=s testing but that, although Phalen=s sign was negative, A[h]e does have positive Tinel=s sign of the carpal tunnel@ as well as paresthesias with percussion at the area of the old laceration.  Dr. Fey diagnosed numbness and pain in the volar right forearm over the past year, status post deep forearm laceration thirty-one years earlier, and he recommended an EMG.  The EMG was conducted on May 30, 2001, and was read by Dr. William Litchy to be normal except for an abnormality of the right superficial radial nerve, which abnormality Dr. Litchy concluded Acould not be localized but could be the result of the trauma to the right forearm that occurred when the [employee] was a teenager.@

 

At a follow-up examination on June 4, 2001, Dr. Russum made the following observations:

 

[The employee] states that about two years ago he was switched to a different position where he has to use some type of a device to cut open some plastic.  This was not something that he did with his previous position and while he always had some problems with intermittent discomfort in the forearm area things . . . clearly started getting worse once he was moved to this new position.

 

Dr. Russum went on in those notes to reiterate a diagnosis of right forearm and wrist pain that was Aprobably due to repetitive work,@ the condition being Awork related although he did certainly have an underlying previous existing injury.@  At his review of the employee=s EMG results on June 6, 2001, Dr. Fey noted that the EMG Areally does not explain diffuse numbness and tingling in all of his fingers including the median and ulnar nerve distribution.@  Dr. Fey recommended referral to a hand specialist.

 

On July 6, 2001, on referral from Dr. Fey, the employee was examined by orthopedic surgeon Dr. Stephen Olmsted, who noted on examination that the employee had Aa nerve compression test that is positive over the laceration area as well as a mild positive nerve compression test over the carpal tunnel.@  On those findings Dr. Olmsted diagnosed A[s]tatus post complex laceration of the distal forearm@ and A[r]ecent onset of symptoms of compression neuropathy.@  With regard to the Apossible etiologies of symptoms,@ Dr. Olmsted stated the following:

 

In light of the injury in that region he may have underlying scar and abnormality to the nerve or around the nerve sheath.  He may also have a subtle double crush syndrome in which he is developing some tightness around the carpal tunnel and Guyon=s canal which in conjunction with this scarring and adhesions along the more proximal forearm may have a lower threshold for developing symptomatic compression neuropathy.  With regard to the radial sensory nerve, he likely has a neuroma from the laceration and may, in fact, have neuroma incontinuity.

 

Dr. Olmsted discussed with the employee the Apotential for exploration which may include a fairly wide exploration of the nerves including both median and ulnar nerves extending into the forearm in the region of the laceration as well as down to the carpal tunnel and Guyon=s canal.@  Dr. Olmsted acknowledged that A[t]he nerve conduction studies do not identify any specific level of severe delay, however, the two separate areas in conjunction with one another may result in being symptomatic.@  On follow-up on August 3, 2001, Dr. Olmsted noted that he had discussed with the employee his conclusion that the employee=s Awork activities with gripping, grasping and torquing, has contributed to exacerbation of [the employee=s] symptoms over time@ and that Athere is significant exacerbation of his symptoms with his job activities.@

 

The employee elected to proceed with the surgery, and on October 18, 2001, under a diagnosis of  A[s]ymptomatic median and ulnar nerve compression neuropathy,@A[h]istory of mid to distal forearm laceration,@ and A[s]ensory branch radial nerve palsy,@ Dr. Olmsted performed on the employee what he described as A[e]xploration, neurolysis and decompression of right median nerve in forearm,@A[e]xploration of ulnar nerve in forearm,@A[c]arpal tunnel release with Guyon=s canal release at the wrist,@ and A[r]adial sensory nerve neurolysis.@  In his operative report on that surgery, Dr. Olmsted noted that, upon exploration of the carpal tunnel, A[t]here was noted to be mild tightness and compression of the median nerve,@ although no significant hourglass configuration or contusions on the nerve were apparent, and there were no space-occupying lesions or anomalies.  When followed from the carpal tunnel into the distal forearm, the median nerve was found also to be encapsulated within abundant scarring that the doctor expressly Anoted to be distal to the original laceration.@  Dr. Olmsted decompressed the median nerve and released it from the scar adhesions, proceeding then to explore the ulnar nerve, which he decompressed at the wrist, although the compression was not significant and there was no evidence of adhesions or scarring.  The doctor then proceeded to explore the radial nerve, which was apparently encased in abundant scar tissue, and neurolysis was performed. A six- to seven-millimeter neuroma was also observed, but, by contingent election of the employee prior to surgery, excision was not performed.

 

Subsequent to his October 2001 surgery, the employee was off work for about a month before returning to work for Hoffman on November 15, 2001. Pain eventually returned to the arm, however, and on February 27, 2002, the employee underwent additional surgery, this to remove the neuroma in the radial sensory nerve that had been observed at the previous surgery and to install a conduit around the nerve. Subsequent to this second surgery, the employee was off work though April 22, 2002, prior to returning to work for Hoffman, subject to restrictions against use of vibrating tools, course manipulation, torquing/crimping or heavy grasping, and lifting/carrying over ten pounds.

 

On May 29, 2002, the employee was examined for Hoffman by Dr. Jeffrey Husband.  After his review of the medical records and examination of the employee, it was Dr. Husband=s opinion that the employee Ahad a longstanding neuroma of the right superficial radial nerve,@ that Aall of [the employee=s] symptoms are related to the original laceration of his right forearm, sustained at age 16,@ and that the employee Adid not sustain a work injury at Hoffman Engineering nor did he aggravate or exacerbate the pre-existing wrist condition.@  It was Dr. Husband=s further opinion that the employee=s work activities at Hoffman were not a substantial contributing factor in the employee=s need for either his October 2001 surgery or his February 2002 surgery, both of which Dr. Husband attributed to the employee=s laceration injury at Bonhus in 1969. Dr. Husband concluded that the employee had reached MMI with regard to the October 2001 surgery about four months after that surgery and that he had not yet reached MMI with regard to the February 2002 surgery.  He recommended no further treatment nor any restrictions except that the employee avoid Aactivities which place direct pressure on the radial side of his right forearm@ and avoid operation of Avibratory tools.@  It was further his opinion that the employee=s work activities at Hoffman had not caused any permanent partial disability or any permanent worsening of the employee=s underlying condition or contributed in any way to the employee=s surgeries or the periods of disability follow those surgeries.

 

The employee apparently had difficulty readjusting to his job after his second surgery, and evidently on about June 17, 2002, Hoffman referred him to work at an agency titled RISE, a transition workplace for injured employees, where the employee performed light assembly work, including folding cardboard boxes and gluing Styrofoam into boxes.  A few months later, the employee apparently returned briefly to work for Hoffman, but again he had trouble doing the work and returned shortly thereafter to RISE, where he worked until October 2002, when he was terminated by Hoffman.  The employee apparently continued in his job as a dealer at Canterbury Downs, where he was still working on the date of the hearing below.

 

On October 11, 2002, the employee was seen in follow-up by Dr. Olmsted, for complaints of Adysesthetic sensation over the radial sensory nerve@ that was Aworse with any gripping, grasping or any paperwork with his hands.@  On physical examination, the employee was found to have full flexion and extension of the elbow, full pronation and supination of the forearm, and full wrist range of motion, though he did still have some sensitivity over the area of the nerve in the radial sensory nerve distribution. Noting that the employee Areally has had essentially no improvement following the surgical decompressions of his nerves,@ Dr. Olmsted had no further surgical remedy to recommend, but released the employee to return to work with continued restrictions against use of vibratory tools, against heavy gripping, and against any grasping or torquing with his right hand.

 

Five days later, on October 16, 2002, the employee was examined for Bonhus and its insurer by orthopedic surgeon Dr. Nolan Segal. In his report on November 11, 2002, Dr. Segal opined that the employee had sustained a Gillette-type overuse injury to his right upper extremity in January of 2001 and that, while it was Ainteresting that [the employee] had extensive exploration of the median and ulnar nerves done in spite of a normal EMG of these nerves,@ the employee=s October 2001 surgery and subsequent disability periods were attributable to that injury and to the employee=s work at Hoffman.  AThere is no evidence,@ Dr. Segal asserted, Athat [the employee=s] 1969 injuries resulted in any of the symptoms that occurred in 2001 that ultimately resulted in the October 2001 surgical procedure.@ The doctor did conclude, however, that the employee=s February 2002 surgery, Awhich was done for repair of the radial nerve neuroma, would be a direct result of the 1969 forearm laceration and would have nothing to do with [the employee=s] employment at Hoffman.@  Dr. Segal stated expressly that it was his Aopinion that [the employee=s] work at [Hoffman] did not aggravate or exacerbate his pre-existing hand and wrist condition, but would constitute a new and isolated problem with the median and ulnar nerves resulting in the October 2001 surgery@ but not in any ratable permanent partial disability.  It was Dr. Segal=s opinion that 100% of the employee=s treatment and expenses for his median and ulnar nerve symptoms, including the October 2001 surgery, would be due to the January 2001 Gillette-type overuse injury at Hoffman and that 100% of the employee=s February 2002 surgery and subsequent total disability would be due to the 1969 specific laceration injury at Bonhus.  Dr. Segal concluded that the employee had reached MMI with regard to both of his surgical procedures, without any permanent partial disability additional to that sustained in 1969, and that he was subject to restriction only to the extent that he should avoid use of vibrating tools, a restriction due strictly to his 2001 Gillette-type overuse injury at Hoffman.

 

On November 27, 2002, the employee filed a 2^nd Amended Claim Petition, alleging entitlement to temporary total and temporary partial disability benefits continuing from January 15, 2001, along with various medical and rehabilitation benefits, all consequent to a Gillette-type work injury on January 15, 2001, and to the employee=s earlier work injury on July 26, 1969.[3]

 

Following a settlement conference on February 26, 2003, and a pretrial conference on December 15, 2003, the matter came on for hearing on January 30, 2004.  On the date of hearing, the employee was evidently continuing to work at Canterbury Downs, eight hours a day, four or five days a week, plus occasional overtime. Issues at hearing included the following:  (1) whether the employee had sustained a Gillette-type injury in January of 2001; (2) the employee=s entitlement to temporary total and temporary partial disability benefits during various periods subsequent to January 15, 2001; (3) the employee=s entitlement to payment of or reimbursement for his own payment of various medical bills, medical co-payments, and medical mileage; (4) the intervening providers= and disability insurer=s entitlement to payment and/or reimbursement; and (5) apportionment of liability between any 2001 work injury and the employee=s 1969 work injury. At the hearing, Bonhus and its insurer essentially agreed that the employee=s February 2002 surgery was related to his 1969 work injury and that they would pay the employee=s medical bills and out-of-pocket expenses from and after the date of that surgery.  They indicated also that they had already reached but not yet drafted a settlement agreement with HealthPartners, Fairview Health Services, and the Minnesota Department of Labor and Industry/VRU regarding Bonhus=s share of liability for the claimed treatment and rehabilitation expenses of those intervenors, and subsequent to the hearing, on February 19, 2004, those parties filed a partial stipulation for full, final, and complete settlement of those claims.

 

At the hearing, the employee testified in part that, when he was first hired by Hoffman, he was sent by Hoffman to see two different specialists with regard to the condition of his right arm and that he was cleared for work by both of them.  He testified also that the pain that he began to experience in his right upper extremity several years after beginning the brake press job at Hoffman and prior to his October 2001 surgery was located at the bend of his wrist, a shooting pain, a different sort of pain from that that he had experienced years earlier consequent to his 1969 laceration injury.  The employee testified that the pain that eventually developed subsequent to the October 2001 surgery and prior to the February 2002 surgery was focused in a different location and was of a different natureBAmore of a numbing,@ from the base of the thumb up three or four inches on the side of the forearm.  He testified that the work that he attempted to perform for Hoffman after recovering from that second surgery and prior to returning to RISE resulted in pain located again where it had been prior to the first surgery--at the bend of his wrist.  Other evidence submitted at hearing included the medical records and opinions of various medical experts, including those of Dr. Segal.

 

In his findings and order filed March 25, 2004, the compensation judge concluded in part, at uncontested Finding 4, that A[t]he employee=s work activities were not a substantial contributing cause of the neuroma or the need for the surgery in 2002.@  In uncontested Finding 8 and in Order 1, the judge concluded also that, as a result solely of the employee=s July 1969 work injury and the related neuroma surgery on February 27, 2002, the employee was temporarily totally disabled from February 27, 2002, through April 22, 2002, and entitled to benefits from Bonhus and its insurer accordingly.  In other findings and orders, here contested, the judge concluded also as follows:  (1) that, as a result of his work activities at Hoffman, the employee had sustained a Gillette-type injury on January 15, 2001, in the nature of an overuse syndrome affecting the ulnar and median nerves in his right hand and wrist; (2) that, subsequent to that injury, and as a result of both that injury and the employee=s July 1969 work injury, the employee was restricted from using vibratory tools, from lifting over twenty-five pounds, and from doing any heavy gripping, grasping, or torquing with his right hand; (3) that, from October 17, 2001, through November 15, 2001, the employee had been temporarily totally disabled as a result solely of his January 15, 2001, Gillette-type injury and his consequent surgery on October 18, 2001, and was due benefits from Hoffman and its insurer accordingly; (4) that Hoffman and its insurer were liable also for all claimed medical and related out-of-pocket and mileage expenses incurred prior to February 27, 2002, while, as stipulated at hearing and on February 19, 2004, Bonhus and its insurer were liable for all claimed medical and related out-of pocket and mileage expenses incurred from and after February 27, 2002, Bonhus having already settled its obligation to intervenors HealthPartners and Fairview Health Services in this regard; (5) that Hoffman and its insurer and Bonhus and its insurer were both equally liable for rehabilitation expenses claimed by the Department of Labor and Industry, the latter=s claim against Bonhus for their expenses having also already been settled; and, (6) that the employee was temporarily partially disabled from January 20, 2001, through October 16, 2001, from November 16, 2001, through February 26, 2002, and from April 23, 2002, through the date of hearing, all as a result of both the 1969 and the 2001 work injuries.  With regard to the latter finding, however, the judge denied apportionment and ordered Hoffman and its insurer to pay the full amount of the benefits due, concluding, as Bonhus and its insurer had asserted at hearing, that the law in effect at the time of the 1969 injury precluded payment of temporary partial disability benefits beyond 350 weeks after the date of injury.[4]  Hoffman and its insurer 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

 

The compensation judge found in part that, based on a work injury on January 15, 2001, Hoffman (1) was solely liable for temporary total disability benefits from October 17, 2001, though November 15, 2001, (2) was 50% liable for temporary partial disability benefits from January 20, 2001, through October 16, 2001, from November 16, 2001, through February 26, 2002, and from April 23, 2002, through the date of hearing and continuing, (3) was solely liable for all of the medical and related out-of-pocket and mileage expenses at issue from January 15, 2001, through February 26, 2002, and (4) was liable for half of the employee=s rehabilitation expenses with the Department of Labor and Industry.  Hoffman and its insurer contend that substantial evidence does not support the judge=s finding of a Gillette-type injury on January 15, 2001, and that, even if such an injury occurred, substantial evidence does not support the judge=s finding that it substantially caused or contributed to the employee=s need for surgery in October 2001, his claimed wage loss from and after January 15, 2001, or any need for rehabilitation benefits.

 

1.  Gillette Injury

 

Hoffman and its insurer contend that, A[i]n this case, the records of the treating physicians and Dr. Husband conclusively establish that the employee did not sustain a Gillette injury culminating in disability on or about January 15, 2001.@  They argue that the employee=s Amedical records taken as a whole indicate that the right arm symptoms [that the employee] experienced on or about January 15, 2001 were simply a manifestation of his underlying condition, which he has admittedly been living with since 1969.@  They note that the employee=s medical history of right arm symptoms is full of references to the employee=s 1969 laceration injury at Bonhus, citing in particular Dr. Russum=s, Dr. Olmsted=s, and Dr. Husband=s records and asserting that Dr. Segal=s opinion was unfounded and unsupported by substantial evidence.  They note in support of the latter conclusion Dr. Segal=s statement that he found it Ainteresting that [the employee] had extensive exploration of the median and ulnar nerves done in spite of a normal EMG of these nerves.@  They emphasize that no physician, including Dr. Segal, placed any permanent partial disability rating on any injury of January 15, 2001, including the carpal tunnel release that was apparently performed on October 18, 2001, contending that A[t]he employee underwent carpal tunnel exploration during the surgery of October 18, 2001, but nothing was done because nothing was damaged.@  They argue, finally, that Afor [the compensation judge] to infer that scar tissue removed from [the employee=s] right arm on October 18, 2001 was the result of a Gillette injury of January 15, 2001 is contrary to the medical evidence.@  We are not persuaded.

 

Notwithstanding Hoffman and its insurer=s assertion to the contrary, we find no basis for concluding that Dr. Segal=s opinion is without proper foundation.  As a matter of fact, Dr. Segal=s opinion is copiously founded on a thorough review of the employee=s personal history, a detailed physical examination of the employee, and medical records from eleven different sources dating back to June of 1969.  Although it is true that Dr. Segal appears to have questioned the urgency of Dr. Olmsted=s exploration of the employee=s median and ulnar nerves in light of the employee=s normal EMG, Dr. Segal=s expert opinion was clearly and unambiguously stated to the effect that A[the employee] did sustain a Gillette injury to his right upper extremity@ by January 25, 2001, and that the employee=s Awork at Hoffman . . . [resulted in] a new and isolated problem with the median and ulnar nerves resulting in the October 2001 surgery.@  Nor were those opinions of Dr. Segal unreasonable, given the detailed distinction in the medical records, particularly the records of Dr. Olmsted, between symptomology associated with the radial nerveBthe nerve apparently most affected by the 1969 laceration injury--and the median and ulnar nerve distributionsBthe distributions apparently most symptomatic in January 2001.  The compensation judge chose to rely on Dr. Segal=s opinions, and, given the adequate foundation for and factual reasonableness of those opinions and the absence of any evidence that they were based on any false factual premises, we will conclude that the judge=s finding of a Gillette-type injury in reliance on Dr. Segal=s opinions was reasonable and so affirmable.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (the trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence); Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Total Disability and Expenses Related to the October 2001 Surgery

 

The compensation judge found that the employee had sustained in January 2001 a Gillette-type injury Ain the nature of an overuse syndrome affecting the ulnar and median nerves in the right hand and wrist@--in effect, a carpal tunnel syndrome.  In his memorandum, the judge went on to emphasize that the injury that he found to the median and ulnar nerves was expressly Anot to the radial nerve@ and that A[t]he surgery that was performed on October 18, 2001, relating primarily to the median and ulnar nerves, was the result of the 2001 Gillette injury.@  Hoffman and its insurer contend that Athe medical evidence strongly suggests that the surgery performed in October 2001 was [purely] exploratory in nature,@ that A[t]he scarring removed during the procedure was entirely attributable to [the employee=s] work injury of 1969,@ that Dr. Olmsted Afound no evidence of the occurrence of a new or Gillette injury relating to [the employee=s] work activities at Hoffman,@ and that A[n]o surgery was conducted with regard to [the employee=s] carpal tunnel because no abnormalities were discovered.@  We are not persuaded.

 

The conclusion of the compensation judge on this issue is supported not only by the opinion of Dr. Segal, on which, as we have already concluded, the judge could properly rely, but also by the operative reports of Dr. Olmsted himself.  We concede that Dr. Olmsted=s surgery on the employee in October 2001 was to a large extent exploratory in its initial purpose, but it was clearly motivated by the doctor=s finding at his July 6, 2001, examination of the employee that the employee had a positive nerve compression test over the 1969 laceration area Aas well as . . . over the carpal tunnel.@  In recommending the surgery to the employee on August 3, 2001, Dr. Olmsted discussed with the employee his conclusion that the employee=s Awork activities with gripping, grasping and torquing, has contributed to exacerbation of [the employee=s] symptoms over time@ and that Athere is significant exacerbation of his symptoms with his job activities.@  One of three elements of Dr. Olmsted=s pre-surgical diagnosis on October 18, 2001, was A[s]ymptomatic median and ulnar nerve compression neuropathy,@ and two of four procedures performed were A[e]xploration, neurolysis and decompression of right median nerve in forearm@ and, expressly, A[c]arpal tunnel release with Guyon=s canal release at the wrist.@  Dr. Olmsted noted expressly in his report that there was Amild tightness and compression of the median nerve,@ which was found to be encapsulated by scarring expressly Anoted to be distal to the original laceration.@  Given this evidence in the operative records of Dr. Olmsted in addition to the expert opinion of Dr. Segal, it was not unreasonable for the compensation judge to conclude that Hoffman and its insurer were liable for disability and expenses related to the employee=s October 18, 2001, surgery.  Therefore we affirm that conclusion of the judge.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.

 

3.  Temporary Partial Disability

 

In addition to finding them solely liable for the employee=s temporary total disability immediately following his October 2001 surgery, the compensation judge found Hoffman and its insurer 50% liable for the employee=s temporary partial disability from the date of his return to work after that surgery, November 15, 2001, to the date of his February 2002 surgery and also 50% liable for the employee=s temporary partial disability continuing from the date of his return to work after that latter surgery, April 22, 2002.  The judge found Bonhus and its insurer liable for the other 50% of the employee=s temporary partial disability, but, because temporary partial disability benefits are no longer available against Bonhus and its insurer under the law in effect at the time of the 1969 injury, the judge ordered Hoffman and its insurer to pay the entire burden of temporary partial disability benefits, citing in his memorandum Webeck v. Mochinski General Contractor, 41 W.C.D. 1063 (W.C.C.A. 1989).  On appeal, Hoffman and its insurer essentially reassert their position that the employee did not suffer a work injury while employed by Hoffman in the first place, that at any rate he Areturned to work with no wage loss following the October 18, 2001, surgery,@ and that A[t]he substantial wage loss claimed in this case was sustained by [the employee] after the nerve tube replacement surgery of February 27, 2002, which is admittedly the responsibility of Bonhus Hardware@ (emphasis in original).  They suggest also, and without support, that the employee has declined the services of a QRC to assist him in finding a better job than his job as a card dealer at Canterbury Downs, where, although evidently he has recently been averaging forty hours a week, he is currently employed on only a part-time basis.  We are not persuaded.

 

In order to establish entitlement to benefits for temporary partial disability, an employee must demonstrate that he is subject to a work-related physical disability and that he is working at a wage loss that is causally related to that disability.  See Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-9 (Minn. 1988); Dorn v. A. J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  In this case, the employee=s surgeon and the independent examiners for both employer/insurers have recommended restrictions related to the employee=s work injuries. Having performed two surgeries on the employee expressly linked in his records to the employee=s work, Dr. Olmsted released the employee on October 11, 2002, to work with restrictions against his use of vibrating tools, against heavy gripping, and against doing any grasping or torquing with his right hand.  Dr. Segal concluded on November 11, 2002, that the employee could work so long as his job did not require him to operate vibrating tools, a restriction that Dr. Segal related strictly to the employee=s 2001 Gillette injury with Hoffman.  Even Dr. Husband concluded that the employee can work only so long as he avoids activities that place direct pressure on the radial side of his right forearm and so long as he avoids operation of vibrating tools.  It was not unreasonable for the compensation judge to conclude from this record that the employee is subject to restricted employment and that his restriction relates substantially to his work for and injury with Hoffman.  There is evidence to the effect that the employee is currently working nearly full time hours at his Canterbury Downs job, albeit on an apparently part-time basis, and Hoffman and its insurer have not made any material showing of something more than a theoretical possibility that a better position or wage is available for the employee, see Patterson v. Denny's Restaurant, 42 W.C.D. 868, 873-5 (W.C.C.A. 1989)Bor even argued that such a position or wage exists.  Nor do we find persuasive their argument that the judge was somehow taking an unjustified Adeep pocket shot@ at them in order to find compensation of some sort for the employee.  In light of the opinions of Drs. Segal and Olmsted, the judge=s conclusion that the employee is entitled to temporary partial disability benefits based on restrictions related to a January 2001 work injury was reasonable under our standard of review, and therefore we affirm it.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

4.  Rehabilitation Benefits

 

The compensation judge concluded that Hoffman was also liable for half of all of the employee=s claimed rehabilitation expenses.[5]  Hoffman and its insurer argue that rehabilitation assistance is only available so long as an employee is likely to be precluded from returning to his usual and customary work duties as a result of his work-related injury and that, in this case, the employee Ais not precluded from returning to work because he is not totally disabled and has no permanent disability or work restrictions stemming from his claimed injury at Hoffman.@  They note that Dr. Segal himself opined that the employee had no restrictions other than needing to avoid use of vibratory tools and that Dr. Husband additionally restricted the employee only from Aactivities which place direct pressure on the radial side of his right forearm,@ a restriction that they argue Ahas nothing to do with [the employee=s] work activities at Hoffman Engineering.@  We are not persuaded.

 

The purpose of rehabilitation is Ato restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.@  Minn. Stat. ' 176.102, subd. 1(b). Whatever might have been the basis for the employee=s termination from Hoffman, it is evident, from the development of his overuse syndrome in the first place, from the restrictions issued by Dr. Olmsted, and from the employee=s several aborted attempts to return to his brake press job, that the employee has become increasingly unlikely to be physically able to return to the kind of work that he was employed at at the time of his January 2001 work injury.   That the employee may not have been rated with any additional permanent partial disability as a result of his 2001 and 2002 surgeries is not at all demonstrative of any likelihood that he would return to his former job or one like it or that he has not been in any need of any assistance in looking for work closer to that that he would have enjoyed without the disability that he sustained working for Hoffman.  We affirm the compensation judge=s award to the intervenor, against Hoffman, of half of the rehabilitation expenses that it was claiming at the hearing.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.