Wilson v. Scanlon Int'l, Inc.

HENRY L. WILSON, Employee/Appellant, v. SCANLON INT=L, INC., and STATE FUND MUTUAL INS. CO., Employer-Insurer, and HEALTHPARTNERS, FAIRVIEW HEALTH SERVS., ALLINA HOSP. & CLINIC/UNITED HOSP., ST. PAUL RADIOLOGY, and NEUROLOGICAL ASSOC., Intervenors.

CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s finding that the employee=s 2002 work injury did not substantially cause an inguinal hernia nor substantially contribute to an aggravation of any preexisting inguinal hernia.

CAUSATION - TEMPORARY AGGRAVATION. Substantial evidence supports the compensation judge=s finding that the employee=s April 2002 work injury resulted in a temporary injury to his low back.

TEMPORARY TOTAL DISABILITY. Substantial evidence, including expert opinion, supports the compensation judge=s decision that the employee=s April 29, 2002, work injury no longer substantially contributes to the employee=s disability, but the order for temporary total disability benefits is modified to extend payment of temporary total disability benefits through August 14, 2003.

WAGES - IRREGULAR; WAGES - CALCULATION. Substantial evidence supports the compensation judge=s finding that the employee=s wage was irregular and difficult to determine. The compensation judge erred, however, in calculating the employee's daily wage under Minn. Stat. ' 176.011, subd. 3, and therefore the compensation judge's finding determining the employee's daily and weekly wage is modified.

Attorneys: William G. Moore, Law Office of William G. Moore, Fridley, MN, for the Appellant. Kim D. Amundson, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Respondents.

The employee appeals from the compensation judge=s calculation of the employee=s weekly wage on the date of injury, from the finding that the employee=s low back injury of April 29, 2002, was temporary in nature, from the denial of the employee=s claim that his work injury resulted in an inguinal hernia, and from the denial of temporary total disability benefits since July 4, 2003. We affirm, as modified.

Mr. Henry L. Wilson, the employee, began working for Scanlon International, the employer, in 2000, performing various assembly tasks. This claim arises from an admitted injury the employee sustained to his low back on April 29, 2002.

By way of background, the employee has received extensive medical treatment in the past. Born in 1953, the employee was injured in a serious motor vehicle accident in approximately 1969, at age 15 or 16, which eventually resulted in amputations of both legs. In 1978, the employee underwent a hemicorporectomy, the removal of the lower half of his body, and had a colostomy and ileostomy inserted, due to gangrene and osteomyelitis related to complications from his motor vehicle accident. Since then, he has experienced recurrent skin breakdowns and non-healing wounds at his amputation sites, and has undergone numerous surgeries for decubitus ulcers.^[1]

The record contains extensive medical records documenting the treatment the employee has received for various conditions resulting from his 1969 motor vehicle accident and from later injuries. In 1997, while employed by Westfield Companies, the employee sustained a work-related injury to his low back, and developed a related decubitus ulcer. The employee has a history of treatment for decubitus ulcers, since at least 1989, which have required numerous surgeries. He also has been treated for a sacral ulcer and a hernia on his left side. In 1998, the employee was struck by a car while in his wheelchair, and developed low back, neck and left shoulder symptoms. In 1998 or 1999, the employee was first diagnosed with a large paracolostomy hernia, including one hernia near his colostomy and one on the right side of his abdomen.^[2]

Since approximately 1969, the employee has been eligible for social security disability benefits, but he also has undergone training through a CETA program and has worked with remarkable perseverance in various jobs, in addition to his assembly work for the employer, including self-employment repairing office machines, auto mechanic work, telemarketing, assembling medical equipment, and assembling cardboard boxes and parts for inline skates. The employee=s job for Scanlon International, the employer, typically involved assembling. On April 29, 2002, which was an unusually busy day, the employee was asked to lift and stack bundles of cardboard boxes; this included lifting cardboard boxes measuring 5"x8", which were stacked in bundles weighing approximately 20 pounds per bundle. Because the employee uses a wheelchair, he wheeled himself to a stack of cardboard boxes, and then carried the bundle of flattened boxes a distance of approximately 15 feet, carrying the banded-up boxes with one arm and wheeling himself with the other arm. As the day progressed, the employee noted bulging and more swelling in his left lower quadrant, and pain on his left side. He also noted neck and shoulder pain from performing this lifting. The employee consulted physicians at the Aspen Medical Group, and was restricted from work.

Following the employee's work injury, he also was hospitalized and underwent diagnostic work-up of his left side pain and management of pain, and underwent numerous consultations in the gastroenterology, neurology, neurosurgery and colorectal surgery departments. In her chart note of May 30, 2002, Dr. Sally Berryman, one of the employee's treating physicians at Aspen Medical Group, diagnosed "[c]hronic left-sided pain, etiology is not entirely clear at this time. Possibilities for contributing to the pain include chronic left hernia and back strain." Dr. Berryman also stated that the employee reported the same amount of pain, whether he was taking high doses of or no narcotic pain medication.

The employee was restricted from work until July 10, 2002, when Dr. David Kroschel, also at Aspen Medical Group, released the employee to return to work with a ten-pound weight restriction at least until he could consult with a colorectal surgeon. Dr. Warren Schubert, one of the employee's previous treating surgeons, released the employee to return to work as of July 15, 2002, with a permanent lifting restriction of 10 pounds. Although the employee attempted to return to work for the employer in July 2002, his swelling recurred and he was again restricted from work. On August 1, 2002, the employee reported to Dr. Kroschel that he had attempted to return to work but that twisting and movements again caused him pain, although the record does not specifically describe in what area the employee was noting pain.

The employee's primary medical treatment following his 2002 injury involved consultations for his paracolostomy hernia which was aggravated by the injury. Well before the 2002 injury, the employee's treating physicians had considered performing additional surgery to repair the employee's paracolostomy hernia, but had recommended against surgery due to the fragile nature of the employee's skin and tissue. The employee was eventually referred to Dr. Sayeed Ikramuddin, who performed surgery in January 2003 in the nature of laparoscopic paracolostomy herniation repair. During that surgery, Dr. Ikramuddin detected a left inguinal hernia, which he repaired during the same surgery. In June 2003, Dr. David Rothenberger performed surgery for resection of redundant colon and colostomy revision.

In his chart note of July 3, 2003, Dr. Rothenberg stated that he suspected that the strain the employee experienced from his 2002 work injury led to his increased hernia symptoms, and stated that "[n]ow that we have straightened this out and fixed the hernias, hopefully, he will have no further problems, though I did advise him not to do such heavy work." In a report dated August 14, 2003, Dr. Rothenberg opined that the employee could return to work with a ten-pound weight restriction and with a restriction against any strain placed on his abdominal wall. Dr. Kroschel issued a report dated August 26, 2003, stating that he believed it would be "unwise to place Mr. Wilson in the high risk of reherniation of his abdominal wall" and questioned whether the employee could return to work at all. He also stated that the employee reported "increasing lower back pain from his hemicorp[or]ectomy from 1978 and cannot sit in his wheelchair for more than 3 hours without having to take a significant break."

On July 30, 2002, the employee filed a claim petition, seeking entitlement to temporary total disability benefits since July 15, 2002, as a result of his low back and claimed hernia injury, as well as payment for medical expenses incurred since his injury for treatment to his hernia and lumbar condition. This matter was heard before a compensation judge on October 31, 2003, and the record closed on November 12, 2003, with submission of post-hearing briefs and exhibits. In her Findings and Order, served and filed on January 12, 2004, the compensation judge found that the employee sustained a temporary low back injury as a result of his April 29, 2002 injury, in the nature of a soft tissue/myofascial syndrome with no spinal pathology, and that he sustained an aggravation of his underlying paracolostomy hernia. The judge awarded temporary total disability benefits from July 15, 2002, through July 3, 2003, as a result of those injuries.

The compensation judge denied the employee=s claim that he developed an inguinal hernia as a result of his work injury or that he aggravated a pre-existing inguinal hernia as a result of the injury, and denied the employee=s claim for temporary total disability benefits from July 4, 2003, through the date of the hearing, based upon her conclusion that neither the temporary injury to the employee=s low back nor aggravation of his paracolostomy hernia substantially contributed to the employee=s disability after July 3, 2003. The employee appeals.

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2004). Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

The compensation judge found that the employee=s weekly wage on the date of his injury was $294.10. Based on her conclusion that the wage was irregular and difficult to determine, she applied the wage calculation method referred to in Minn. Stat. '' 176.011, subd. 3, and 176.011, subd. 18. The employee argues that the compensation judge erred by calculating the employee=s weekly wage and that she underestimated the employee=s earnings. The employer argues that the compensation judge correctly calculated the employee=s weekly wage, as the statutory calculation method provides the best estimate of the employee=s earning capacity.

The object of a wage determination is to arrive at a fair approximation of the employee=s probable future earning power which has been impaired or destroyed by the injury. Sawczuk v. Special School District 1, 34 W.C.D. 282, 312 N.W.2d 435 (Minn. 1981). See also, Bradley v. Vic=s Welding, 39 W.C.D. 921, 405 N.W.2d 243 (Minn. 1987); Beissel v. Marschall Line, Inc., 58 W.C.D. 470 (W.C.C.A. 1998). An employee=s weekly wage is determined under Minn. Stat. ' 176.011, subd. 18, which reads, in part, as follows:

AWeekly wage@ is arrived at by multiplying the daily wage by the number of days and fractional days normally worked in the business of the employer for the employment involved. If the employee normally works less than five days per week or works an irregular number of days per week, the number of days normally worked shall be computed by dividing the total number of days in which the employee actually performed any of the duties of employment in the last 26 weeks by the number of weeks in which the employee actually performed such duties, provided that the weekly wage for part time employment during a period of seasonal or temporary layoff shall be computed on the number of days and fractional days normally worked in the business of the employer for the employment involved. If, at the time of the injury, the employee was regularly employed by two or more employers, the employee=s days of work for all such employments shall be included in the computation of weekly wage. Occasional overtime is not to be considered in computing the weekly wage, but if overtime is regular or frequent throughout the year it shall be taken into consideration.

The appropriate daily wage is determined under Minn. Stat. ' 176.011, subd. 3, which defines "daily wage" as "the daily wage of the employee in the employment engaged in at the time of injury" and provides in pertinent part:

If the amount of the daily wage received or to be received by the employee in the employment engaged in at the time of injury was irregular or difficult to determine, . . . the daily wage shall be computed by dividing the total amount the employee actually earned in such employment in the last 26 weeks, by the total number of days in which the employee actually performed any of the duties of such employment[.] [Emphasis added.]

The compensation judge outlined the basis for her conclusion that the employee=s wage was Airregular@ and Adifficult to determine,@ stating that although the normal work week for employment with the employer consisted of four ten-hour workdays, the employee only worked an average of 3.4 days per week. The compensation judge then calculated the employee=s weekly wage to be $294.10, based on a daily wage of $86.50 (ten-hour day x $8.65 per hour) multiplied by an average of 3.4 days worked per week.

The employee argues that his daily wage received was neither irregular nor difficult to determine. He testified that he was hired to work full-time, four 10-hours days per week, at an hourly wage of $8.65, which results in a weekly wage of $346.00, and that if he worked fewer hours it was due to his attendance at a doctor=s appointment. The record, however, does not indicate whether the employee attended doctor=s appointments during each of the 25 weeks for which there are wage records, and, if so, whether the employee was paid sick leave for time missed from work.

The record contains an itemization of wages paid to the employee for 25 weeks prior to the employee=s injury, for the weeks ending November 10, 2001, through April 27, 2002.^[3] During those 25 weeks, the employee worked between one and four days per week, and his gross weekly wages ranged from $59.81 to $389.25. The employee=s daily wages varied also, even in weeks when he worked the same number of days. For example, the employee worked four days per week in only 14 of the 25 weeks, but his wages during those four-day weeks varied between $318.38 and $346.00. The employee also worked overtime hours during two weeks during this period of time; the record does not clearly indicate whether the employee=s gross wages during those two weeks included overtime pay. Based upon the wage records in evidence, the compensation judge could reasonably conclude that the employee=s earnings were irregular and difficult to determine, and that the employee=s wage should be determined under Minn. Stat. ' 176.011, subd. 3.

We modify the rate of the weekly wage, however, based on a recalculation of the employee=s daily wage. The statute requires that an employee=s daily wage first be calculated Aby dividing the total amount the employee actually earned in such employment in the last 26 weeks, [in this case, 25 weeks] by the total number of days in which the employee actually performed any of the duties of such employment.@ The compensation judge found that the employee=s daily wage was $86.50, based on a typical workday of ten hours at $8.65 per hour; that calculation is not supported by the employee=s wage records, as his daily wages were irregular. Utilizing the statutory formula, we calculate the employee=s daily wage to be $87.68 (based on earnings of $7,453.03 during those 25 weeks, divided by the 85 days worked by the employee).

The employee=s daily wage of $87.68 must then be multiplied by the average number of days worked per week during this time period, which the compensation judge correctly calculated to be 3.4 days per week. With a daily wage of $87.68, for an average of 3.4 days per week, the employee=s weekly wage calculates to $298.11.

We therefore affirm the compensation judge=s finding that the employee=s wage was irregular and difficult to determine, and modify her finding of the weekly wage to $298.11, concluding that this wage rate fairly approximates the employee=s probable future earning power. Sawczuk, 34 W.C.D. 282, 312 N.W.2d 435 (Minn. 1981).

The employee argues that the compensation judge erred by finding that the employee's low back injury was a temporary injury which resolved by July 3, 2003, approximately 14 months after the injury. The compensation judge noted references in the employee's pre-2002 medical records to ongoing pain medication he earlier was prescribed for low back ulcerations. She also noted the limited treatment to his low back after his 2002 work injury. The employee's records and testimony reflect that after his April 29, 2002, work injury, he experienced low back pain and left-sided abdominal pain. Dr. Keith Davies diagnosed myofascial lumbar pain into the flank with no spinal tenderness and no obvious disc herniations; Dr. Berryman diagnosed left side/flank pain following a pulling-type injury at work. The employee unquestionably experienced additional symptoms and required medical treatment following his injury on April 29, 2002, as indicated in his testimony and medical records. However, the majority of the medical treatment received by the employee following his 2002 work injury was for his paracolostomy hernia. The medical records addressing the employee's low back condition after his 2002 work injury are limited, and the record contains no medical opinions that specifically address the issue of the nature or duration of the employee's low back injury.

The compensation judge had the opportunity to review the employee's medical records, including reports prepared by Drs. Davies and Berryman, as well as the employee's testimony about the development of his low back symptoms. She concluded, based on that evidence, that the employee's 2002 work injury resulted in a temporary injury to his low back, and that his temporary injury resolved by July 3, 2003, the date that Dr. Rothenberger released the employee to return to work within restrictions.

It is the task of this court, on factual matters such as this one, to review the entire record and to assess the substantiality of evidence supporting the decision of the judge. As we have indicated above, supportive evidence is substantial if it is, in light of the records as a whole, "evidence that a reasonable mind might accept as adequate," granting "due weight to the opportunity of the Compensation Judge to evaluate the credibility of witnesses appearing before the judge." Hengemuhle, 358 N.W.2d at 59, 37 W.C.D., at 239; Redgate v. Sroga's Standard Service, 421 N.W.2d 729, 734, 40 W.C.D. 948, 957.

Based on the record as a whole, adequate support exists for the compensation judge's conclusion that the employee's 2002 work injury resulted in a temporary injury to his low back which resolved by July 3, 2003, and therefore we affirm.

The employee appeals from the compensation judge=s finding that the employee did not sustain an inguinal hernia as a result of his work injury, nor did he aggravate any preexisting inguinal hernia, as a substantial result of his April 29, 2002, injury. In reaching these conclusions, the compensation judge relied on the opinion of Dr. Sayeed Ikramuddin, the surgeon who performed surgery on the employee=s paracolostomy and inguinal hernia. In his letter of August 20, 2003, Dr. Ikramuddin outlined the medical treatment the employee had received since his initial motor vehicle accident, and determined that the employee=s two major conditions in his medical history were persistent and recurrent decubitus ulcers and Aworsening problems with hernias and in particular a very troublesome left sided paracolostomy hernia.@ Dr. Ikramuddin concluded that the employee=s work injury may have aggravated this hernia. He also addressed the issue of causation of the employee=s inguinal hernia, stating as follows:

With respect to the specific questions that you asked me in your letter, my diagnosis of his condition was a recurrent parastomal hernia with incarcerated bowel, and left inguinal hernia. The second question was whether or not his work activities on April 29, 2002 working as an assembler at Scanlan International was a substantial contributing factor to the condition and diagnosis - since he had the condition of the parastomal hernia this certainly did not cause it, however, it may have aggravated the condition. However, with regard to the inguinal hernia, since this was an unknown entity before it is possible that, in fact, this could have contributed to it, but again he has never had a diagnostic laparoscopy to identify this entity and therefore this cannot be clearly established or excluded. Thirdly, Mr. Wilson did have a pre-existing condition and the question was could have this work have been a substantial contributing factor in aggravation or acceleration of any pre-existing condition. With the condition of an inguinal hernia or the parastomal hernia, it is clear that heavy work and increased intra-abdominal pressure worsens these processes. Certainly, increased intra-abdominal pressure is a risk factor for development of hernias and therefore this certainly this could have contributed to this.

The compensation judge concluded that the medical opinions in the record do not substantiate the employee=s claim that he either sustained or aggravated an inguinal hernia as a result of his 2002 work injury. She concluded that Dr. Ikramuddin=s opinion Afails to reach the standard of medical certainty,@ and that without further evidence, the employee had not shown that his work activities caused or aggravated the inguinal hernia. The employee argues on appeal that Dr. Ikramuddin=s opinion was sufficient to support a causal relationship between the employee=s work injury and his inguinal hernia.

Dr. Ikramuddin=s opinion is the sole medical opinion in the record concerning the causation of the employee=s inguinal hernia, and the compensation judge did not find his opinion persuasive. Questions of medical causation fall within the province of the compensation judge. Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1984). The compensation judge=s conclusion that the medical records do not establish the requisite causal connection between the employee=s work injury and his inguinal hernia is adequately supported by the evidence, and therefore we must affirm. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

The compensation judge awarded payment of temporary total disability benefits between April 20, 2002, and July 3, 2003, but denied the employee=s claim for temporary disability benefits continuing from July 4, 2003. Although the compensation judge had determined that the employee sustained an aggravation of his underlying paracolostomy hernia and a low back injury as a substantial result of his April 2002 work injury, she also concluded that the injury did not contribute to the employee=s disability from work after July 3, 2003. She based that conclusion, in part, on Dr. Rothenberger=s release of the employee to light-duty work within similar light-duty restrictions earlier imposed by the employee=s treating physicians.

As early as 1998, Dr. Schubert had recommended that the employee permanently discontinue working due to his medical condition. Dr. Schubert later recommended against manual work, and in 1999, Dr. Philemon Roy recommended physical work restrictions for future employment Abecause of the continuing major problems of skin and tissue continuity in his perineum, back and flanks,@ where integrity of the employee=s skin and tissue was critical to the employee=s healthy survival. In a report dated July 9, 2002, Dr. Schubert advised that the employee could return to work by July 15, 2002, with a permanent lifting limit of 10 pounds.

In a chart note dated July 3, 2003, in which he reported on a post-operative examination of the employee, Dr. Rothenberger stated that ANow that we have straightened this out and fixed the hernias, hopefully, he will have no further problems, though I did advise him not to do such heavy work.@

I believe Mr. Wilson could return to work at this time, but it is absolutely mandatory that he not have any strain on his abdominal wall, or he is at high risk to get recurrent hernias or other problems. I believe the recommended weight restriction of 10 lbs. suggested as a permanent restriction by Dr. Schubert on July 9, 2002 is appropriate, given the current situation.

The compensation judge compared the employee=s work restrictions before and after his April 2002 work injury, and concluded that even before his 2002 work injury the employee=s physicians had recommended strict limitations on his work, or recommended that he not work at all, in order to avoid further injury. She summarized her conclusions in her memorandum, stating that

The question whether the employee has the capability to return to work subsequent to the April 29, 2002 work injury or is able to work at light duty employment is problematic. In addition, the greater query is whether the work injury of April 29, 2002, with subsequent hernia repair, is a substantial contributing factor to the inability to work or release to return to work with physical restrictions.

The evidence fails to prove by a preponderance that the aggravation of the underlying hernia on April 29, 2002 is a substantial contributing factor to the total disability subsequent to July 4, 2003. The work restrictions have not changed substantially subsequent to the April 29, 2002 work injury when compared with the preexisting functional limitations. The employee was at high risk for reherniation of his abdominal wall in 1996 when paracolostomy herniation was diagnosed. Although various physicians after the work injury recommend a permanent restriction to perform no work, it is unclear whether those recommendations are a result of the April 29, 2002 work injury, the preexisting ventral hernias, or a result of other non-work conditions.

The employee=s extensive medical records in evidence document the restrictions placed on him by his physicians before his work injury of April 29, 2002. As of July 3, 2003, Dr. Rothenberger advised the employee not to do such heavy work, which was a restriction similar to that earlier imposed by Dr. Schubert.

It is evident that the compensation judge thoroughly reviewed the evidence in the record, and the compensation judge was entitled to rely on Dr. Rothenberger=s opinion when reaching her conclusion on whether the 2002 work injury continues to substantially contribute to the employee=s disability. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Upon review of the record, we acknowledge that this is a close case, but in view of the employee=s medical history and treatment prior to his 2002 work injury, the treatment records relating to the work injury, and Dr. Rothenberger=s chart note of July 3, 2003, the record supports the compensation judge=s decision that the employee=s April 29, 2002, injury no longer substantially contributes to his disability.

We affirm that finding, with modification. Although the compensation judge determined that the employee=s work injury no longer contributed to his disability after July 3, 2003, as that was the date when Dr. Rothenberger advised against heavy work for the employee, it is not entirely clear from Dr. Rothenberger=s July 3, 2003, report that he was actually releasing the employee to light-duty work at that time. He more specifically addressed that issue in his report of August 14, 2003, when he stated AI believe Mr. Wilson could return to work at this time@ within a specific weight restriction. We therefore affirm the compensation judge=s award of temporary total disability but modify the order to include benefits payable through August 14, 2003, along with applicable interest.

^[1] A decubitus ulcer is an ulceration caused by prolonged pressure in a patient allowed to lie too still in bed [or, in this case, in a seated position] for a long period of time. Dorland=s Illustrated Medical Dictionary, 1907, 29^th ed. (2000).

^[2] In reports and chart notes, the employee=s physicians refer variously to a ventral, paracolostomy and parastomal hernia, in addition to the employee=s separate diagnosis of an inguinal hernia. It appears from review of the context in which those terms are used that all three terms designate the same diagnosis of a hernia in the employee=s abdomen or stomach area, near his colostomy.

^[3] The employee was paid $261.67 for two days worked during the week ending May 4, 2002. The compensation judge did not use the wages for that partial week, as it reflected only partial wages earned during the week including the employee=s injury date, April 29, 2002.