RANDY M. CARTER, Employee/Cross-Appellant, v. ALLIANT TECHNOLOGIES, SELF-INSURED, adm=d by BROADSPIRE, Employer/Appellant, and CONSULTING RADIOLOGISTS, LTD., BLUE CROSS BLUE SHIELD OF MINN., RIDGEVIEW MED. CTR., and MN DEP=T OF EMPLOYMENT AND ECON. DEV., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 3, 2005

 

No. WC05-135

 

HEADNOTES

 

CAUSATION - SUBSTANTIAL EVIDENCE.  The employee=s testimony together with the medical records and opinions of Dr. Brutlag support the compensation judge=s finding the employee sustained a permanent injury to his right shoulder on March 7, 2003.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the finding the employee had restrictions on his work activities after March 7, 2003, and the injury was a substantial contributing cause of the employee=s wage loss.  Where the evidence supports the conclusion that the employee had a reasonable expectation of returning to work for the employer following layoffs on March 20 and November 10, 2003, the compensation judge properly awarded temporary total disability benefits.

 

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  The medical evidence and the employee=s testimony supports the conclusion that the employee=s work-related injury caused a physical disability impairing the employee=s ability to work and the judge=s award of temporary partial disability benefits.

 

PERMANENT PARTIAL DISABILITY - SHOULDER.  The award of a two percent permanent partial disability for a partial thickness rotator cuff tear is affirmed as Minn. R. 5223.0450, subp. 3.A.(1), provides for the rating Awith or without surgical repair.@  The award of permanent partial disability for loss of motion of the shoulder is premature as a surgical repair may change the amount of permanency to which the employee may be entitled, and that award is vacated.

 

MAXIMUM MEDICAL IMPROVEMENT.  Where the compensation judge found the employee sustained a permanent injury and awarded a surgical consultation, the compensation judge=s determination the employee had reached maximum medical improvement on January 20, 2004, must be reversed.

 

Affirmed in part, vacated in part, and reversed in part.

 

Determined by: Johnson, C.J., Rykken, J., and Wilson, J.

Compensation Judge: Paul D. Vallant

 

Attorneys: Michelle Barone Osterbauer, Kirsten Tate, and Joseph J. Osterbauer, Osterbauer Law Firm, Minneapolis, MN, for the Cross-Appellant.  Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellant.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

BACKGROUND

 

Randy M. Carter, the employee, began working for Alliant Technologies, the self-insured employer, in October 1994 as a production machinist.  This job required the employee to load 50 to 70 pound bars of metal into a machine on a regular basis.  On March 7, 2003, the employee sustained a personal injury to his right shoulder while lifting a heavy bar.  The employee=s weekly wage on that date was $1,327.63.^[1]

 

The employee saw Dr. Milton Seifert, his primary care physician, on March 10, 2003.  The employee gave a history of loading a 50 to 75 pound steel bar into a machine when he felt a pop or snap in his right shoulder.  The doctor prescribed muscle relaxants and allowed the employee to return to work, which he did until he was laid off on March 20, 2003.  The employee returned to see Dr. Seifert on March 20, 2003, with continued right shoulder complaints.  On examination, the doctor noted reduced range of motion and referred the employee to Dr. Anne Brutlag at the Park Nicollet Clinic.

 

The employee saw Dr. Brutlag on April 21, 2003.  He gave a history of loading a 12-foot long, 50 to 70 pound bar into a machine that required him to lift the bar slightly above shoulder level when he noticed a sudden onset of a sharp pain in the right shoulder.  The employee reported continuing right shoulder pain and pain into his neck and down toward the elbow.  He stated his pain had improved since the injury but had persisted.  Dr. Brutlag diagnosed right bicipital tendinitis and right rotator cuff tendinitis and injected the employee=s biceps tendon and right shoulder with Lidocaine.  On May 5, Dr. Brutlag noted some moderate reduction in pain and improvement in mobility.  The doctor stated exercise and activities which involved the use of the employee=s right arm at or above shoulder level and away from his body were not recommended until the employee was pain free.  The doctor again provided Lidocaine injections and recommended some gentle stretching and rotation exercises.  In June 2003, the doctor prescribed physical therapy.  By report dated September 22, 2003, Dr. Brutlag diagnosed right rotator cuff tendinitis and stated the employee should avoid repetitive or heavy use of his right arm at or above mid-chest level from September 22 through December 31, 2003.  An MRI scan of the employee=s right shoulder in October 2003 showed a large partial articular surface tear of the supraspinatus tendon with no full thickness rotator cuff tear and some degenerative changes of the acromioclavicular (AC) joint.

 

On October 9, 2003, the employee was examined by Dr. Otis at the request of the employer for a fitness for duty examination.  The doctor concluded the employee could work subject to restrictions including working with his right arm below shoulder level and working only eight hours a day for two weeks, with a reevaluation after two weeks.

 

The employee was called back to work with the employer on October 27, 2003.  He worked for two weeks, until he was again laid off on November 10, 2003.  The employee returned to work with the employer on December 8, 2003, and worked until he was permanently laid off on May 31, 2004.

 

Dr. Carlos Guanche examined the employee on January 7, 2004, at the request of the self-insured employer.  Following a physical examination and review of the employee=s medical records, the doctor diagnosed right shoulder impingement with AC joint synovitis.  Dr. Guanche concluded the employee=s work activities were a substantial contributing cause of the employee=s right shoulder condition.  The doctor found no substantial finding on the MRI scan or clinically to substantiate any more significant medical intervention.  The doctor opined the employee would have needed work restrictions for a period of three months following the personal injury, but opined that thereafter the work injury would have resolved without restrictions or permanent disability.  Finally, Dr. Guanche opined the employee would have reached maximum medical improvement three months following his injury.

 

The employee returned to see Dr. Brutlag on March 29, 2004, complaining of continuing right shoulder pain.  The doctor=s diagnosis was right shoulder pain, right shoulder rotator cuff tear and right bicipital tendinitis.  Dr. Brutlag noted the employee might be a surgical candidate if the rotator cuff tear progressed to a full thickness tear or the employee failed to show improvement in strength.  The doctor recommended the employee obtain a Bowflex machine for shoulder strengthening.  On June 7, 2004, Dr. Brutlag noted the employee continued to have limitations in his ability to use his right arm at or above shoulder level.  On October 5, 2004, Dr. Brutlag reported the employee=s shoulder was weak in external rotation.  Her diagnosis remained right rotator cuff tear and tendinitis.  The doctor recommended the employee not use his right arm overhead or above shoulder level and lift no more than ten pounds frequently with his right arm, 11 to 20 pounds  occasionally, and 50 pounds on a rare basis.  Dr. Brutlag continued to recommend referral to an orthopedic surgeon for a possible surgical intervention.

 

By report dated October 6, 2004, Dr. Brutlag stated the employee reported to her an onset of pain on March 7, 2003, with persistent pain thereafter particularly with reaching, lifting and overhead use of his right arm.  The doctor diagnosed right rotator cuff tear which she related to the injury of March 7, 2003.  Dr. Brutlag rated a 6 percent whole body disability for a 90 percent rotator cuff tear, a 3 percent permanent disability for loss of range of flexion or extension, and a 3 percent disability for loss of abduction.  Finally, the doctor again recommended the employee see an orthopedic surgeon for an evaluation of a possible repair of the right rotator cuff tear.

 

Dr. Jon Engelking examined the employee on October 20, 2004, at the request of the self-insured employer.  The doctor obtained a history from the employee, reviewed the relevant medical records and performed a physical examination.  The doctor reviewed the MRI report.  He stated the scan showed some degenerative changes of the acromioclavicular joint with a Type I acromion with a 90 percent partial rotator cuff tear.  Dr. Engelking concluded the employee had a long-standing right shoulder rotator cuff impingement syndrome which developed into a large partial thickness tear of the rotator cuff as well as degenerative arthritic changes at the acromioclavicular joint and cystic changes on the humeral head.   The doctor opined the employee=s work activities with the employer caused a temporary aggravation of his pre-existing shoulder problems but concluded the employee reached maximum medical improvement from the effects of that personal injury within three months.  Dr. Engelking concluded the employee sustained no permanent partial disability as a result of his personal injury.  The doctor stated the employee was restricted from doing repetitive lifting above shoulder height, but stated the need for those restrictions was the pre-existing condition not the personal injury.

 

The employee filed a claim petition seeking payment of wage loss benefits, permanent partial disability benefits, and medical benefits.  Initially, the self-insured employer denied liability for the employee=s personal injury.  Following the medical evaluation of Dr. Guanche, the employer admitted liability and paid temporary total disability benefits to the employee from March 7 through June 7, 2003, asserting the injury was temporary.  Following a hearing, the compensation judge found the employee sustained a permanent injury to his right shoulder on March 7, 2003, and awarded temporary total, temporary partial, and permanent partial disability benefits, together with medical benefits including a Bowflex home exercise machine.  The self-insured employer appeals the award of benefits.  The compensation judge further found the employee reached maximum medical improvement no later than January 20, 2004.  The employee appeals this finding.

 

DECISION

 

1.  Permanent Injury

 

The self-insured employer appeals the compensation judge=s finding that the employee sustained a permanent injury to his right shoulder on March 7, 2003.  The appellant asserts the medical records document the employee suffered from a long-standing right shoulder rotator cuff syndrome prior to his personal injury.  The employee continued to work at his regular job, without restrictions, for two weeks following his injury until he was laid off.  Thereafter, the employee worked in October and November, 2003, and from December through May, 2004, at his regular job, without restrictions.  These facts, together with the opinions of Dr. Engelking and Dr. Guanche, the appellant argues, refute the judge=s conclusion that the employee sustained a permanent injury to his right shoulder on March 7, 2003.  Accordingly, the appellants contend the judge=s finding should be reversed.  We are not persuaded.

 

The employee testified that following his personal injury, he requested a lighter duty job but was told he needed to remain at his regular job so he asked friends to help him with the heavier parts of the job.  The employee stated the shoulder injections he received from Dr. Brutlag helped him significantly but after a week or two the shoulder pain returned.  When he returned to work in December 2003, the employee testified, he again asked for a lighter duty job because of his right shoulder problems, but stated the employer again denied this request.  Between December 2003 and May 2004, the employee testified he occasionally refused overtime because of his shoulder problems.  During this time, he stated that if he worked excessively or lifted his arm in the wrong manner his shoulder would start to throb and become inflamed.  In September 2003, Dr. Brutlag imposed restrictions on the employee=s work activities and Dr. Otis also imposed restrictions in October 2003.  Ultimately, an MRI scan revealed a tear of the supraspinatus tendon and a rotator cuff tear and Dr. Brutlag recommended a consultation with an orthopedic surgeon for a possible rotator cuff repair.  Dr. Brutlag opined the employee=s right shoulder problems resulted from his March 7, 2003, personal injury and she concluded the employee had sustained permanent disability as a result of that injury.

 

Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  The employee=s testimony together with the medical records and the opinions of Dr. Brutlag support the compensation judge=s finding the employee sustained a permanent injury to his right shoulder on March 7, 2003.  Accordingly, this finding must be affirmed because it is Asupported 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).

 

2.  Temporary Total Disability

 

The self-insured employer also appeals the compensation judge=s award of temporary total disability benefits from June 7 through October 25, 2003, and from November 10 through December 7, 2003.  The appellant contends the employee had no restrictions on his work ability after June 7, 2003, the employee=s wage loss was caused by the layoff not the personal injury, and the employee failed to conduct a reasonably diligent search for employment during the periods of layoff.  For these reasons, the appellant contends the compensation judge erred in awarding temporary total disability benefits.  We disagree.

 

The employee testified to ongoing problems with his right shoulder after his personal injury and the medical records corroborate his testimony.  Dr. Brutlag and Dr. Otis placed restrictions on the employee=s work activities.  The personal injury caused a torn rotator cuff and  Dr. Brutlag rated permanent disability resulting from the personal injury.  Based on this evidence, the compensation judge could reasonably conclude the employee did have restrictions on his work activities at all times after his personal injury.  The fact that the employee was laid off on November 10, 2003, because of an economic layoff is not a defense to a claim for wage loss benefits.  Rather, the question is whether the employee=s personal injury was a substantial contributing cause of the resultant wage loss.  Schulte v. C. H. Peterson Constr. Co., 153 N.W.2d 130, 24 W.C.D. 290 (1967).  In this case, the compensation judge found the employee had restrictions on his work activities after March 7, 2003, and found the personal injury was a substantial contributing cause of the employee=s wage loss.  These findings are supported by substantial evidence and must, therefore, be affirmed.

 

The employee testified he was laid off on prior occasions by the employer but was always called back to work.  When he was laid off in March 2003, the employee stated the employer told him he would be called back to work.  Where there appears to be a reasonable possibility that the employee may return to work for the employer, it may not be reasonable to require an immediate search for work elsewhere.  Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995).  The judge found the employee had a reasonable expectation of returning to work for the employer following his layoffs of March 20 and November 10, 2003.  Accordingly the compensation judge=s award of temporary total disability benefits is affirmed.

 

3.  Temporary Partial Disability Benefits

 

The compensation judge awarded the employee temporary partial disability benefits from October 26 through November 9, 2003, and from December 8 through May 30, 2004.  The appellant contends the evidence is insufficient to prove any wage loss was caused by the employee=s personal injury.  Rather, the appellant argues there was a work slow-down prior to the plant closure on May 30, 2004.

 

Ms. Patti Soule, the employer=s human resources director, testified that beginning in February 2004, the company began a gradual transition of the work from the employer=s Minnesota plant to a plant in Virginia.  The Minnesota plant was finally closed effective May 31, 2004, and all employees were either transferred to other facilities or laid off.  Ms. Soule denied that an injured worker who had restrictions against working overtime would be forced to work overtime by the employer.

 

The employee testified he was restricted to working 40 hours a week after October 26, 2003.  He further testified that his shoulder pain limited his ability to work overtime.  The employee acknowledged, however, the employer would have periods when overtime was available and other periods when business was so slow employees were laid off.  Between December 2003 and May 2004, the employee testified he was unable to take all of the overtime available because of his doctor=s restrictions and his inability to do the job.

 

On October 9, 2003, Dr. Otis restricted the employee to working eight hours a day for two weeks.  Beyond this restriction, we find no evidence that any doctor restricted the employee=s hours of employment.  The employee did not, however, return to work following his lay off until October 26, 2003, more than two weeks after Dr. Otis=s restrictions were imposed.  Between October 26 and November 9, 2003, the employee worked less than 40 hours the first week and worked more than 40 hours the second.  The employee was then laid off and returned to work from December 8, 2003 through May 30, 2004, a period of 25 weeks.  During this period, the employee worked at least 40 hours during 19 weeks and worked some overtime during approximately half of these weeks.^[2]  During only two of the 19 weeks, however, did the employee earn more than his date of injury wage.

 

To prove entitlement to temporary partial disability benefits, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.  Krotzer v. Browning-Ferris, 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  Whether a reduced earning capacity is attributable to the disability or to some other factor is generally a question of fact for the compensation judge.  Borchert v. American Spirits Graphics, 582 N.W.2d 214, 58 W.C.D. 316 (Minn. 1998).  The medical evidence, together with the employee=s testimony, provide a sufficient evidentiary basis to conclude the employee=s personal injury caused a physical disability impairing the employee=s ability to work.  The employee sustained a wage loss during the periods in issue.  As a general rule, an employee=s post-injury earnings are presumed to be an accurate reflection of the employee=s ability to earn or earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960).  The record in this case minimally supports the compensation judge=s award of temporary partial disability benefits.  We, therefore, affirm the award.

 

4.  Permanent Partial Disability Benefits

 

The compensation judge found the employee sustained a two percent permanent partial disability for a partial thickness rotator cuff tear,^[3] a three percent permanent partial disability for loss of flexion or extension,^[4] and a three percent whole body disability for loss of abduction or adduction.^[5]  The employer and insurer contend that if the employee has surgery on his shoulder, the ultimate permanent partial disability rating may well be less than that awarded by the compensation judge.  Accordingly, the appellants contend any award of permanent partial disability benefits is premature.  We agree, in part.

 

Minn. R. 5223.0450, subp. 3.A.(1), provides for a two percent whole body disability for a chronic rotator cuff tear, demonstrated by medical imaging study, with or without surgical repair.  Dr. Brutlag and Dr. Engelking agree the employee has a partial thickness tear of the rotator cuff which was demonstrated on the MRI scan.  The rule provides for a rating whether or not surgery is performed.  The compensation judge=s award of a two percent whole body disability is affirmed.

 

In Grashorn v. Boise Cascade Corp., slip op. (W.C.C.A. Mar. 6, 2002), this court concluded it was error to award permanent partial disability benefits for loss of range of motion of the shoulder where the loss of range of motion was completely alleviated by surgery prior to the hearing.  In this case, the employee sought the right to consult with an orthopedic surgeon for a surgical evaluation, but the employer and insurer denied further liability for medical treatment after June 7, 2003.  The compensation judge awarded the surgical consultation.^[6]  A surgical repair of the employee=s torn rotator cuff may well change the amount of permanent partial disability to which the employee may be entitled.  On these facts, we conclude an award of permanent partial disability for limitation of motion of the right shoulder is premature, and the award is vacated.

 

5.  Medical Benefits

 

The self-insured employer appeals the compensation judge=s award of medical expenses.  In reliance on the opinion=s of Dr. Guanche and Dr. Engelking, the appellants contend the effects of the employee=s personal injury ended by June 7, 2003, and he has no further entitlement to benefits.  We have previously rejected this argument and affirm the compensation judge=s conclusion that the employee sustained a permanent injury to his right shoulder resulting in restrictions and permanent disability.  Accordingly, the judge=s award of medical benefits is affirmed.

 

The appellant further appeals the compensation judge=s order that they reimburse the employee for the purchase of a Bowflex home exercise machine.  They contend the use of a Bowflex machine will only aggravate the employee=s shoulder condition as opined by Dr. Engelking.  Further, they assert the treatment parameters, Minn. R. 5221.6300, subp. 8C, limit the use of home exercise equipment only within the context of an approved chronic management program which does not here exist.  For these reasons, the employer and insurer seek a reversal of the judge=s award.

 

Dr. Brutlag recommended a Bowflex machine for the employee to use at home for further strengthening of his shoulder rotation.  The compensation judge accepted this opinion as a basis for the award.  While Dr. Engelking disagreed, it is the function of the compensation judge to choose between conflicting expert medical testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985).  Although the appellants assert the treatment parameters as a defense, they asserted the effects of the employee=s injury were temporary and ended by June 2003.  In such circumstances, an employer Amay not reasonably rely on the parameters to deny payment for treatment rendered after the alleged resolution of the injury.@  Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8 (W.C.C.A. 1999).  Accordingly, we affirm the award of the home exercise machine.

 

6.  Maximum Medical Improvement

 

The compensation judge, in reliance on the opinion of Dr. Guanche, found the employee reached maximum medical improvement (MMI) on January 20, 2004.  Because the compensation judge found the employee required a surgical evaluation, the employee contends the judge=s MMI finding is unsupported by substantial evidence and must be reversed.

 

Maximum medical improvement is defined as "the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability."  Minn. Stat. ' 176.011, subd. 25.  Maximum medical improvement "occurs upon medical proof that the employee's condition has stabilized and will likely show little further improvement."  Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740, 742 (W.C.C.A. 1987).  Maximum medical improvement is an issue of ultimate fact to be determined by the compensation judge after considering medical records, medical opinions, and other relevant evidence.  AMMI is a controlling legal standard and, therefore, it is the responsibility of the compensation judge to evaluate the employee's condition as documented by medical records, medical opinions and other data and circumstances.  >Medical probability= does not mean only the opinion of a physician.@  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 529, 41 W.C.D. 634, 639 (Minn. 1989).

 

Dr. Guanche=s MMI opinion was premised on his conclusion that the effects of the employee=s personal injury resolved within three months.  The compensation judge, however, rejected Dr. Guanche=s underlying premise and found the employee sustained a permanent injury.  The medical records of Dr. Brutlag document the employee failed to respond to conservative treatment and was unable to regain full use of his right shoulder.  Accordingly, Dr. Brutlag recommended a surgical consultation.  The compensation judge agreed with this recommendation, but noted there was no evidence that surgery would be recommended or that the employee wished to proceed with surgery.  While this may be true, prior to the hearing the employer and insurer refused the employee=s request for a surgical consultation, so it is unknown whether the employee=s condition may yet improve with surgery.  Accordingly, we conclude the compensation judge=s finding that the employee has reached MMI is unsupported by substantial evidence and is reversed.

 

Based upon the finding that the employee had reached maximum medical improvement, the compensation judge denied the employee=s claim for temporary total disability benefits after May 31, 2004.  The compensation judge, however, found the employee had restrictions on his work activities from and after March 7, 2003, and found the employee performed a reasonable and diligent job search following his lay off on May 30, 2004.  The employee appeals the judge=s finding on employee=s job search contending it is unsupported by substantial evidence.  We disagree.

 

The employee received no rehabilitation assistance following the May 30, 2004, lay off.  The employee testified he sought work by talking to friends in other machine shops, looking through the newspapers and calling employers.  The employee kept a list of his job contacts (Pet. Ex. F) but testified the list was incomplete.  The employee also utilized the services of the Teamsters Service Bureau which provided job counseling and assistance.  The determination of whether or not an employee's job search is diligent is a question of fact for the compensation judge to resolve.  Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989).  Moreover, Ait is clear that the issue of whether or not an employee has sought work with reasonable diligence must be viewed within the context of the scope of rehabilitation assistance which has been provided by the employer and insurer.@  Hunter v. Crawford Door Sales, slip op. at 3 (W.C.C.A. Aug. 4, 1993) (citing Sellner v. B. F. Goodrich Co., 39 W.C.D. 463 (W.C.C.A. 1986)).  Substantial evidence supports the compensation judge=s finding that the employee conducted a reasonable diligent job search after May 30, 2004.  Accordingly, the employee is entitled to temporary total disability benefits from June 1, 2004, through the date of the hearing.