Hussein v. University of Minn.

HADI HUSSEIN, Employee, v. UNIVERSITY OF MINN., SELF-INSURED, adm=d by SEDGWICK CLAIMS MGMT. SERVS., Employer/Appellant, and REGIONS HOSPITAL and FAIRVIEW HEALTH SERVS., Intervenors.

REHABILITATION - ELIGIBILITY; RULES CONSTRUED - Minn. R. 5220.0100, subp. 22. Although, given the circumstances in this case, the employee may well benefit from rehabilitation services, where he has continued since his injury to work for the employer at suitable, gainful employment , the employee is not a qualified employee within the meaning of Minn. R. 5220.0100, subp. 22, and is not entitled to rehabilitation services.

MEDICAL TREATMENT AND EXPENSE - SUBSTANTIAL EVIDENCE. Substantial evidence, including the treatment records and reports of Drs. Anderson, Uddin, Call and Olmstead, supports the compensation judge=s determination that the employee=s right wrist surgery was reasonable, necessary and causally related to the employee=s work injury.

Attorneys: Kirk C. Thompson, Cronan Pearson Quinlivan, Minneapolis, MN, for the Appellant. Thomas J. Davern, Davern, McLeod & Mosher, Golden Valley, MN, for the Respondent.

The self-insured employer appeals the compensation judge=s finding that the employee=s surgery on May 14, 2003 was reasonable, necessary, and causally related to the employee=s work injury of December 3, 2001, and the finding that the employee was a qualified employee eligible for rehabilitation benefits. We affirm the award of medical benefits but reverse the award of rehabilitation services.

On December 3, 2001, Hadi Hussein, the employee, sustained a work-related injury to his right wrist arising out of and in the course of his employment with the University of Minnesota, the self-insured employer, with claims administered by Sedgwick Claims Management Services. The parties entered into a provisional stipulation that the employee=s wage on the date of his injury was $453.60.^[1] The parties further stipulated that if the employee=s May 14, 2003 surgery was reasonable, necessary, and causally related to the personal injury, the intervenor, Fairview Health Services, was entitled to reimbursement in the amount of $568.14.

The employee was hired by the University of Minnesota in September 2001, as an animal care technician. He was responsible for handling cages containing laboratory mice and rats. The employee equipped the cages with food, water and bedding and placed them on wheeled carts that he was required to move from room to room. The employee testified a fully loaded rack of cages weighed approximately 400 pounds. While pulling a rack of cages on December 3, 2001, the employee testified he jammed his wrist between two 400 pound racks causing immediate pain. The employee=s supervisor took him to Minnesota Occupational Health where he saw Dr. James Anderson. The employee gave a history of moving racks of cages which caused him to strike his wrist on an adjacent cage resulting in pain in the dorsum of the wrist. On examination, Dr. Anderson noted minimal swelling with tenderness on the radial aspect of the right wrist. X-rays were negative. The doctor diagnosed a contusion and strain of the radial aspect of the right wrist. Dr. Anderson prescribed a protective splint for the right wrist to be worn for three days and allowed the employee to return to work. Dr. Anderson re-examined the employee on December 21, 2001, and diagnosed right wrist strain/inflammation and de Quervain=s type syndrome. The doctor placed the employee in a thumb spica splint and allowed the employee to continue working

The employee saw Dr. Meskath Uddin at HealthPartners on January 16, 2002, complaining of severe pain and tenderness along the long extensor tendons without normal range of thumb motion. The doctor diagnosed acute and severe de Quervain=s tenosynovitis secondary to the personal injury. Following an injection of Kenalog and Lidocaine, the employee=s normal range of motion of his thumb returned without pain or discomfort. The employee saw Dr. Anderson at HealthPartners on May 22 with continuing complaints of pain in the right wrist that increased with movement. The doctor diagnosed tendinitis of the right wrist and possibly of the right thumb extensor tendon.

The employee saw Dr. Anderson on three occasions in July 2002, with continuing complaints of right wrist pain. The doctor=s diagnosis was traumatic de Quervain=s tendinitis of the right wrist, and he restricted the employee to left-handed work and use of the right hand only in a passive way without active gripping. Dr. Anderson referred the employee to Dr. William Call for a consultation. Following the examination, Dr. Call diagnosed traumatic de Quervain=s type tendinitis, prescribed a spica splint and allowed the employee to work, subject to Dr. Anderson=s restrictions.

The employee saw Dr. Stephen Olmsted on September 16, 2002, with continuing complaints of pain along the radial aspect of the right wrist and over the first dorsal extensor compartment. On examination, the doctor noted diminished ulnar deviation of the right wrist with a positive Finklestein=s test. Dr. Olmsted diagnosed a right de Quervain=s stenosing tenosynovitis and recommended a de Quervain=s release. In January 2003, Dr. Anderson noted the employee was performing his regular duties at work with a splint, but continued to note discomfort and pain in the right wrist. The doctor=s diagnosis remained a crush injury of the right wrist with traumatic de Quervain type tendinitis. An MRI scan on February 19, 2003, showed a mild central thinning of the radial attachment of the triangular fibrocartilage complex, without visualization of tear and no ligamentous abnormalities. On May 14, 2003, Dr. Olmsted performed a right de Quervain=s release. On July 22, the doctor noted the employee was doing well but reported increasing pain when lifting heavier objects at work. The doctor prescribed physical therapy and continued the employee on light duty work until he regained full strength. By September 2003, Dr. Olmsted noted the employee had good range of motion with no tenosynovitis along the radial aspect of the wrist and a negative Finklestein=s test. The doctor gave the employee a cortisone injection. At the hearing, the employee testified he was much better following the surgery with no pain, although he complained of some weakness in his right hand.

On March 21, 2003, Dr. David Boxall performed an independent medical examination of the employee at the request of the self-insured employer. The employee then complained of pain in the radial and ulnar aspect of the right wrist extending into the forearm. Following an examination, the doctor diagnosed a history of contusion of the right wrist, a history of possible de Quervain=s tendinitis of the right wrist, and compensation neurosis with functional overlay. Dr. Boxall concluded the employee demonstrated no evidence of any ongoing injury of the right wrist or evidence of ongoing de Quervain=s tendinitis of the right wrist. Dr. Boxall concluded the employee had reached maximum medical improvement (MMI) with no need for any permanent work restrictions and rated no permanent partial disability. In December 2003, Dr. Boxall reviewed the February 2003 MRI scan and the operative and follow-up records of Dr. Olmsted. Dr. Boxall concluded the MRI scan showed no evidence of de Quervain=s tendinitis and re-stated his conclusion that his findings in March 2003 did not confirm a diagnosis of de Quervain=s tendinitis. The doctor concluded the medical records supported his diagnosis of functional overlay as the source of the employee=s symptoms. Accordingly, Dr. Boxall concluded the surgery was inappropriate and resulted in an expected poor outcome.

Carol T. Mossey, a qualified rehabilitation consultant (QRC), met with the employee for a rehabilitation consultation on November 4, 2002. Ms. Mossey concluded the employee was eligible for rehabilitation services and prepared a Rehabilitation Plan with a goal Ato obtain surgery on R[ight] wrist, obtain medical stability, then resume DOI (date of injury) position.@ (Pet. Ex. M.) In the rehabilitation plan, Ms. Mossey proposed medical and vocational management that included obtaining medical records and following up with physicians regarding the employee=s treatment plan, coordinating a return to work and reviewing job duties to assure the job was physically appropriate. Ms. Mossey also performed an on-site job analysis of the animal care technician job. Ms. Mossey then contacted the claims administrator seeking approval to provide rehabilitation services to the employee which the administrator denied. In a report dated November 27, 2002, Ms. Mossey noted the employee was currently working with difficulty due to the surgery. On December 31, 2002, Ms. Mossey noted the employee had been working consistently since his injury but was experiencing considerable pain and limitation and was unable to do any heavy grasping.

In February 2003, Ms. Mossey noted the employee was of Ethiopian descent and was not easily understood by others including physicians which she concluded was demonstrated when one physician recorded an incorrect history because the doctor misunderstood the employee. Ms. Mossey stated the employee needed someone to accompany him during his physician visits to communicate the doctors= recommendations due to the language barrier. In February 2003, Ms. Mossey attended the employee=s appointment with Dr. Olmsted to assist the employee in understanding the doctor=s recommendation regarding surgery. She further testified she felt it was necessary to visit the employee=s work site to determine whether the employee=s job was within his physical capabilities.

In March 2003, Ms. Mossey filed a medical request on behalf of the employee seeking approval for the employee to treat with Dr. Olmstead. She also filed a rehabilitation request seeking a determination that the employee was eligible for rehabilitation services. In a Findings and Order, the compensation judge found the employee was a qualified employee for rehabilitation purposes and found the employee=s de Quervain=s release surgery was reasonable, necessary and causally related to the employee=s work injury. The self-insured employer appeals these findings.

ARehabilitation is intended to 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).

Minn. R. 5220.0130, subp. 1, provides that an employee must be a Aqualified employee@ before a rehabilitation plan is implemented. Pursuant to Minn. R. 5220.0100, subp. 22,

AQualified employee@ means an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:

A. is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of injury;

B. cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and

C. can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.

The employee continued to work for the employer in the animal research position following the personal injury. Ms. Mossey stated this was suitable, gainful employment. Ms. Mossey further stated she had no medical evidence that the employee was permanently precluded or likely to be permanently precluded from performing his usual and customary occupation nor did she have any written restrictions from a physician. She was, however, told by the employee that he was given restrictions by one of his doctors. Finally, Ms. Mossey testified that the employee did not meet subparagraphs A. or B. of Minn. R. 5220.0100, subp. 22. For these reasons, the appellant contends the compensation judge=s finding that the employee is qualified for rehabilitation services is legally erroneous.

In response, the employee asserts Keaveny v. Hennepin County, slip op. (W.C.C.A. 2000) is controlling. In that case, the employer accommodated the employee=s restrictions and she continued to work for the employer for five years following her personal injury. The employee then sought rehabilitation services and the issue at the hearing was whether the employee could reasonably be expected to return to suitable, gainful employment with the date-of-injury employer under Minn. R. 5220.0100, subp. 22. In affirming the award of compensation benefits, this court noted that the desire of the parties and intent of the rehabilitation plan to return the employee to a job with the pre-injury employer does not automatically render the employee ineligible for rehabilitation services. Similarly, the employee here contends the fact that he remains working with the employer does not make him ineligible for rehabilitation services. We do not find the Keaveny case controlling. In Keaveny, the employee had continuing problems obtaining job modifications to comply with her restrictions. At the time of the hearing, Ms. Keaveny=s restrictions had reasonably been changed and her hours of employment had been reduced by her treating physician and she was not then working at a suitable job with the employer. None of these facts are present in Mr. Hussein=s case.

The employee has been working at his usual and customary occupation with the employer since his injury. Although the employee was performing his work with pain and restrictions, Ms. Mossey testified the job was suitable, gainful employment. While Ms. Mossey was concerned about the employee=s long-term prospects to continue working at the job because of his symptoms, the rehabilitation eligibility rules appear to require something more than a mere uncertainty as to the employee=s prospects for suitable work. Cornejo v. Release Coatings of Mpls., slip op. (W.C.C.A. Apr. 15, 1998). We acknowledge, that for many reasons, this is a case where the employee may well benefit from rehabilitation services. The employee, has, however, continued to work at suitable, gainful employment provided by the employer since the date of his injury. Accordingly, we are compelled to conclude the employee is not a qualified employee pursuant to Minn. R. 5220.0100, subp. 22. See Adams v. Marvin Windows, 52 W.C.D. 585 (W.C.C.A. 1995). The employee was entitled to a rehabilitation consultation^[2] and Ms. Mossey is entitled to be paid for that consultation. The compensation judge=s award of rehabilitation services is reversed.

The compensation judge found the de Quervain=s release performed by Dr. Olmstead in May 2003 was reasonable, necessary and causally related to the employee=s personal injury. The employer contends the employee consistently demonstrated normal findings on examination and the x-ray and MRI findings were negative. Dr. Boxall concluded the employee demonstrated no evidence of any ongoing injury to the right wrist or evidence of ongoing de Quervain=s tendonitis. Only Dr. Boxall=s opinions, the appellant argues, are consistent with the medical evidence and should have been accepted by the compensation judge. Accordingly, the appellant contends the compensation judge=s finding that the surgery was reasonable, necessary and causally related to the personal injury is unsupported by substantial evidence.

Dr. Anderson, Dr. Uddin, Dr. Call and Dr. Olmstead each examined the employee and diagnosed traumatic de Quervain=s tendonitis. Despite treatment, the employee testified he continued to have pain and problems with his right hand and wrist. Dr. Olmstead stated the de Quervain=s release he performed on May 14, 2003, was reasonable and necessary to treat the employee=s condition. Following the surgery, the employee testified his hand improved and, although the hand is weaker than it was before, the pain is mostly gone. It is the function of the compensation judge to choose between conflicting expert opinions. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge=s determination that the surgery performed by Dr. Olmstead was reasonable, necessary and causally related to the employee=s injury is supported by substantial evidence and is, therefore, affirmed.

^[1] The parties agreed to the stipulated weekly wage solely for the purposes of the hearing before the compensation judge.

^[2] See Minn. Stat. ' 176.102, subd. 4.