JULIE K. HANSON-HAUKOOS, Employee/Cross-Appellant, v. HORMEL FOODS CORP., SELF-INSURED/ALEXSIS RISK CO., Employer/Appellant, and HORMEL FOODS CORP., US DEP=T OF VETERANS AFFAIRS, MAYO FOUND., and MN DEP=T OF EMPLOYMENT & ECON., Intervenors, and SPECIAL COMP. FUND.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 18, 2005

 

No. WC04-281

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY; GILLETTE INJURY - DATE OF INJURY; EVIDENCE - EXPERT MEDICAL OPINION; NOTICE OF INJURY.  Substantial evidence of record, including an adequately founded expert medical opinion, supports the compensation judge=s finding that on January 8, 2003, the employee sustained a Gillette injury in the nature of bilateral carpal tunnel syndrome, as a result of her work activities, and that the employee provided the employer with timely notice of that injury.

 

MAXIMUM MEDICAL IMPROVEMENT - SERVICE OF MMI REPORT.  Where no physician had yet issued a report advising that the employee had reached maximum medical improvement from all work-related injuries, the compensation judge=s finding that the employee had not yet reached MMI from all injuries, nor had she been served with a MMI report, was supported by substantial evidence of record.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence of record supported the compensation judge=s award of TTD benefits while the employee was disabled during her post-surgery recovery.

 

TERMINATION OF EMPLOYMENT; JOB SEARCH.  Where the employee=s employment was terminated due to attendance issues, and where the employee remained subject to work restrictions as a result of her work-related injuries and cooperated with rehabilitation assistance by engaging in a diligent job search, the compensation judge reasonably concluded that

the employee was entitled to TTD benefits after the termination of her position.

 

TEMPORARY PARTIAL DISABILITY - WORK RESTRICTIONS.  Where the employee was restricted to part-time work once she returned to work post-surgery, the evidence of record supported the compensation judge=s award of temporary partial disability benefits.

 

CAUSATION; TEMPORARY PARTIAL DISABILITY.  During the period of time when the employee=s time loss was due to illness and medical consultations unrelated to her work injuries, the compensation judge reasonably denied the employee=s claim for temporary partial disability benefits.

 

TEMPORARY PARTIAL DISABILITY -  EARNING CAPACITY.  Substantial evidence, including testimony by the employee=s QRC, supports the compensation judge=s denial of temporary partial disability benefits during the period when the employee earned very limited wages from part-time employment, based on his finding that the wages did not accurately represent the employee=s earning capacity.

 

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including adequately founded medical opinion, supports the compensation judge=s findings concerning various claims for permanent partial disability benefits.

 

INTERVENORS; MEDICAL TREATMENT & EXPENSE - MANAGED CARE.  Where the evidence of record did not clearly show that the VA Medical Center, a non-participating provider in the employer=s managed care plan, was provided with notice regarding the rules of the managed care plan, that provider should not be denied reimbursement for an alleged failure to comply with managed care rules.

 

REHABILITATION - ELIGIBILITY.  Substantial evidence of record supports the compensation judge=s findings that the employee=s work injuries resulted in permanent impairment and ongoing restrictions and that the employee may be reasonably expected to benefit from rehabilitation assistance.

 

WAGES - IRREGULAR HOURS.  Where the employee=s hours and wages were different for each of the 26 weeks prior to her injury, and where the record documents the days actually worked by the employee, the compensation judge properly utilized the calculation method for weekly wage rate as outlined in Minn. Stat. ' 176.011, sub. 18.

 

Affirmed as modified.

 

Determined by: Rykken, J., Wilson, J., and Stofferahn, J.

Compensation Judge: Bradley J. Behr

 

Attorneys: Donaldson V. Lawhead, Lawhead Law Offices, Austin, MN, for the Cross-Appellant.  Dean K. Adams, Adams, Rizzi & Sween, Austin, MN, for the Appellant.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The self-insured employer appeals from the compensation judge=s award of temporary total, temporary partial and permanent partial disability benefits, rehabilitation expenses and payment of medical expenses.  The employee cross-appeals from the denial of certain temporary total, temporary partial, and permanent partial disability benefits, and from the compensation judge=s determination of the employee=s weekly wage on January 4, 2000.  We affirm, as modified.

 

BACKGROUND

 

Ms. Julie Hanson-Haukoos began working for Hormel Foods Corporation in June 1997.  She initially worked as an operator of the vacuum pack machine on the ham line, and later worked in various positions in the shipping department, including work on assembly and packing lines and operation of a forklift, and as a general worker, performing various jobs in the employer=s grocery product department.  Her duties included repetitive grasping and gripping, using utility knifes, lifting hams, loins and boxes of product, operating a forklift and handling or manipulating pallet loads.  During the time she worked for Hormel, the employee sustained multiple work-related injuries, as described below.

 

December 12, 1997, and January 21, 1999: The employee sustained admitted injuries to her cervical spine.

 

January 4, 2000: The employee sustained an admitted injury to her left wrist after a coworker accidentally pushed a wooden pallet against her with a forklift.  She also claims to have injured both knees and left shoulder as a result of that incident, but the employer denied liability for those claimed injuries.

 

May 9, 2001: The employee sustained an admitted injury to her cervical spine and re-injured her left shoulder, when her forklift was struck head on by another forklift driven by a coworker.  She also claimed to have injured her mid-back, but the employer denied liability for a mid-back injury.

 

November 25, 2002: The employee sustained an admitted injury to her right eye when the contents of a high pressure pipe, pork and fatty material, were sprayed in the right side of her face and her right eye.

 

January 8, 2003: The employee claims to have sustained a Gillette^[1] injury in January 2003, when she was diagnosed as having bilateral carpal tunnel syndrome, contending that her job duties with the employer substantially caused, aggravated and/or accelerated her carpal tunnel syndrome.

 

The employee initially received medical treatment for her work-related injuries at the Austin Medical Center and Albert Lea Clinic, and later treated with both the Mayo Clinic and the Veterans Administration Medical Center.  The record contains extensive medical records documenting the employee=s medical treatment.  On November 20, 2000, the employee attended an independent medical examination with Dr. Robert Barnett, at the employer=s request.  That examination focused on the employee=s reports of bilateral knee pain and left shoulder pain noted after her January 2000 work injury.  Dr. Barnett diagnosed a left shoulder contusion that had resolved with no need for restrictions.  He also diagnosed bilateral knee pain from contusion, since resolved, and concluded that the employee=s ongoing patellofemoral pain syndrome was unrelated to the employee=s work injury.  Dr. Barnett concluded that no further treatment was necessary for the employee=s left shoulder and knees, that the employee had reached maximum medical improvement from those injuries, and that she had sustained no permanent partial disability (PPD) as a result of her January 2000 work injury.

 

The employee continued to work for the employer, and on May 9, 2001, re-injured her neck and left shoulder, and sought additional medical treatment.  Her wrist symptoms also continued; an EMG performed at the VA Medical Center in November 2001 showed evidence of bilateral carpal tunnel syndrome (CTS).  By May 14, 2002, the employee underwent surgery to her left shoulder, including arthroscopic decompression and distal clavicle excision.  She remained off work between May 8 and August 26, 2002, as the result of her surgery and post-surgical complications.  From August 27 through October 7, 2002, the employee continued to work for the employer, on a part-time basis.  By October 7, 2002, the employee=s treating physician at the VA Medical Center released her to return to work without restrictions, advising her to gradually increase her activity level as tolerated.

 

Between October 2002 and mid-July 2003, the employee missed a substantial amount of time from work, for personal reasons not attributable to her work injuries.  In addition, during that period, the employee sustained a work-related injury to her right eye, which initially caused some blurred vision and light sensitivity.  The employee sought medical treatment from an ophthalmologist, Dr. Sunil Khanna, who noted a stage 1 macular hole appearing in the employee=s right eye, and referred the employee to a retina specialist, Dr. Colin McCannel, at the Mayo Clinic, for a determination of whether surgical repair would be necessary.  Dr. McCannel recommended additional diagnostic testing, but no further therapy, and advised that the employee=s vision should remain stable.

 

In late 2002, the employee=s wrist and other symptoms continued, and she received ongoing medical treatment.  An additional EMG performed at the Mayo Clinic in December 2002 showed findings consistent with bilateral CTS.

 

On January 8, 2003, the employee consulted Dr. Robert Wengler for an independent medical examination, reporting chronic neck pain, chronic left shoulder pain, pain in both knees and symptoms in both wrists.  He diagnosed degenerative disk disease of the cervical spine; a left rotator cuff tear, surgically repaired; bilateral chondromalacia of the patellae; and bilateral carpal tunnel syndrome. Dr. Wengler concluded that the employee=s need for left shoulder surgery and related time loss from work and functional impairment were causally related to the employee=s January 2000 and May 2001 work injuries.  He also concluded that the employee=s functional impairment of her knees resulted from her January 2000 work injury.  At a later deposition, Dr. Wengler testified that, in his opinion, the employee=s carpal tunnel syndrome was related to her repetitive activities performed while working for the employer.  Dr. Wengler recommended no orthopedic treatment for the neck and shoulder and also recommended against a carpal tunnel release.

 

On July 17, 2003, the employer terminated the employee=s employment due to attendance issues.  From mid-July through mid-November 2003, she sought work with the assistance of a qualified rehabilitation consultant (QRC).

 

On October 3, 2003, the employee was re-examined by Dr. Robert Barnett.  Following that examination, Dr. Barnett concluded that the employee=s current neck, left shoulder and bilateral knee symptoms were unrelated to her work injuries, that she reported subjective symptoms largely unsupported by findings on objective examination, and that she had reached maximum medical improvement from her injuries to those areas.  Dr. Barnett also reviewed the employee=s wrist symptoms, and concluded that the exact etiology of the carpal tunnel syndrome was unknown.  However, he also stated that the employee=s Arepetitive work activities involving the hands and wrists could be significant aggravating factors to the carpal tunnel symptoms,@ and that the employee=s Acurrent symptoms may be aggravated by the fact that she is pregnant.@  He concluded that the employee had not yet reached maximum medical improvement from her carpal tunnel syndrome.

 

On November 13, 2003, the employee gave birth to twins, and by late January 2004 resumed her search for work.  She remained off work until May 3, 2004, when she began working at a part-time cleaning job, working approximately six hours per week at $6.00 per hour.

 

On June 2, 2004, a hearing was held before a compensation judge, to address the employee=s claim petition, the employee=s request for formal hearing on a rehabilitation issue and the employee=s medical request for payment of expenses related to treatment at the VA Medical Center.  The hearing record included extensive medical records, deposition testimony by Drs. Barnett and Wengler, and hearing testimony by the employee, the employee=s QRC, a nurse from the employer=s medical department, a union representative and co-employee at Hormel, and a representative from CorVel, the company that administers the employer=s managed care plan.  The hearing record closed on July 13, 2004, upon receipt of additional exhibits and trial briefs, and after notice was served on a potential intervenor.

 

On August 31, 2004, the compensation judge issued his Findings and Order, in which he found that the employee had sustained injuries to her left shoulder, left wrist and both knees on January 4, 2000, and that, in addition to her neck and left shoulder injury on May 9, 2001, the employee sustained a temporary injury to her mid-back.  He also found that the employee sustained a Gillette injury in the nature of bilateral carpal tunnel syndrome that culminated on January 8, 2003.  In addition, the compensation judge found that the employee earned a weekly wage of $546.62 on the injury date of January 4, 2000.  The judge awarded the following benefits:

 

1.  Temporary total disability benefits between May 8, 2002, and August 26, 2002, based upon his finding that the employee was temporarily totally disabled during that period of time as the result of the employee=s left shoulder injuries on January 4, 2000, and May 9, 2001, and her related surgery and post-surgical complications.

 

2.  Temporary partial disability benefits between August 27 and October 7, 2002, based upon his finding that the employee remained restricted to part-time work as the result of her shoulder surgery.

 

3.  Temporary total disability benefits between July 18 and November 11, 2003, based upon the judge=s finding that following the termination of the employee=s job on July 17, 2003, she remained subject to physical work restrictions as a result of her work-related injuries, that she cooperated with rehabilitation assistance and the efforts of her QRC, and that she performed a job search during this period of time.

 

4.  Permanent partial disability (PPD) benefits based upon the following whole body impairment ratings:

 

A.  12% relative to the right eye,

B.   3% relative to the left shoulder, and

C.   3% relative to the left wrist.

 

The compensation judge denied certain claims raised by the employee, as listed below:

 

1.  Temporary partial disability benefits between August 8, 2002, and July 17, 2003.  The compensation judge denied those benefits, concluding that the employee missed a substantial amount of time from work due to personal issues and that her time loss was not causally related to her work injuries.

 

2.  Temporary total disability benefits between January 26 and May 2, 2004.  The judge denied those benefits, concluding that the employee was released to return to work during this period of time but did not demonstrate a reasonable and diligent job search nor did she cooperate with rehabilitation assistance during this period of time.

 

3.  Temporary partial disability benefits between May 3, 2004, and the hearing on June 2, 2004.  The compensation judge found that the employee=s part-time work, six hours per week, at $6.00 per hour, did not accurately reflect her earning capacity and that the employee did not engage in a reasonable and diligent job search for other appropriate employment during this period of time, and therefore she was not entitled to payment of temporary partial disability benefits.

 

4.  Permanent partial disability benefits.  The compensation judge denied the employee=s claims for PPD benefits relative to her cervical spine, both knees, and her right wrist, concluding that her diagnosed conditions in those areas did not comply with the requirements of the permanent partial disability schedules.

 

The compensation judge determined that the employee was qualified for rehabilitation assistance, and awarded payment for past rehabilitation expenses.  In addition, the judge awarded a penalty to the employee based upon the employer=s late payment of the permanency benefits relative to her right eye.  He also awarded reimbursement to the Veteran=s Administration Medical Center and Mayo Clinic, for medical treatment expenses, and awarded reimbursement to the Minnesota Department of Employment and Economic Development, and the employer=s short-term disability insurer, for benefits paid to the employee during certain periods of time in 2002 and 2003.  The employer appeals, and the employee cross-appeals, from the compensation judge=s findings.

 

STANDARD OF REVIEW

 

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).

 

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

1.  Gillette Injury of January 8, 2003

 

The self-insured employer appeals from the compensation judge=s finding that the employee sustained a Gillette injury, in the nature of bilateral carpal tunnel syndrome, as a substantial result of her work activities, and that the injury culminated as of January 8, 2003.  A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work.  In order to establish a Gillette injury, an employee must Aprove a causal connection between her ordinary work and ensuing disability.@  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  While evidence of specific work activity causing specific symptoms leading to a disability Amay be helpful as a practical matter,@ determination of a Gillette injury Aprimarily depends on medical evidence.@  Id.

 

In January 2003, the employee sought medical treatment at the Mayo Clinic, where her physicians diagnosed CTS.  She also sought the opinion of Dr. Wengler, who examined her on January 8, 2003, and who also diagnosed CTS resulting from repetitive activities at work.  The compensation judge relied upon Dr. Wengler=s opinion that the employee=s work activities, which involved repetitive use of both hands, resulted in a Gillette injury.  The judge also referred to Dr. Barnett=s opinion that it was Apossible@ the employee=s symptoms were related to the repetitive nature of her work duties.  In his memorandum, the judge outlined the employee=s testimony concerning her fast-paced duties on the Aham line,@ and her duties in the shipping department.  The employee testified that she began to experience hand symptoms within three months after starting work for the employer in June 1997, that her hands became sore and swollen while working on the ham line, and that while her symptoms typically improved while she was off work over the weekend, they returned after she resumed working.

 

The employer argues that Dr. Wengler=s opinion lacks foundation on which to state any opinions with respect to causal relationship between the employee=s work activities and her bilateral carpal tunnel condition.  The employer argues that the information provided at Dr. Wengler=s deposition, through a recitation of a hypothetical fact scenario, was too general and vague to provide him with adequate information on which to base a causation opinion.  The compensation judge addressed this argument in his memorandum and concluded, after his review of all of the evidence, that there was sufficient foundation for Dr. Wengler=s opinion.

 

Adequate foundation is necessary for a medical opinion to be afforded evidentiary value.  Winkles v. Independent Sch. Dist. No. 625, 46 W.C.D. 44, 58 (W.C.C.A. 1991).  To establish an adequate foundation, the facts upon which an expert relies for his or her opinions must be supported by the evidence.  McDonald v. MTS Sys. Corp., 43 W.C.D. 83 (W.C.C.A. 1990), summarily aff=d (Minn. July 13, 1990).  Since Dr. Wengler=s opinion was based upon his examination of the employee, the history he took from the employee, and the information provided to him at his deposition, he had adequate foundation for his opinions.  As his opinion has foundation, it was not unreasonable for the compensation judge to accept Dr. Wengler=s opinion on the issue of causation.  Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994)  (AThe compensation judge is free to select all or any portion of any expert opinion, so long as that opinion has adequate foundation.@) See also Cull v. Wal-Mart Stores, Inc., 64 W.C.D. 264 (W.C.C.A. 2004), summarily aff=d (Minn. July 20, 2004).

 

The employer also appeals the judge=s determination of the date of the employee=s Gillette injury.  In Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984), the Minnesota Supreme Court held that although an Aultimate breakdown@ can be characterized as the date when an employee=s condition disables her from work, a Gillette injury can culminate on the date of various ascertainable events, such as the date when medical restrictions are imposed or the date when she seeks medical treatment for the condition.  The compensation judge determined that the employee sustained a Gillette injury as of January 8, 2003, utilizing the date of Dr. Wengler=s examination.  Based upon the medical evidence in the record, including the expert medical opinions of Drs. Wengler and Barnett, the compensation judge reasonably concluded that the employee sustained a Gillette injury on January 8, 2003, and we affirm that finding.

 

The employer also argues that the compensation judge erred by finding that the employee gave adequate notice of her bilateral carpal tunnel syndrome.  The compensation judge found that the employee was not aware that her hand and wrist symptoms were a compensable disability until Dr. Wengler=s report of January 8, 2003.  On the employee=s March 12, 2003, claim petition, bilateral carpal tunnel syndrome is listed as an injury which arose out of the course and scope of her employment.  The employer argues that the supporting medical information provided, Dr. Wengler=s January 8, 2003, report, did not state that the carpal tunnel syndrome was work-related and that they did not receive notice until Dr. Wengler=s deposition of May 2004.

 

Where notice is provided to the employer more than 30 days but less than 180 days from the occurrence of the injury, compensation is still payable if the employee Ashows that failure to give prior notice was due to the employee=s . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent . . . unless the employer shows prejudice . . . .@  Minn. Stat. ' 176.141.  In cases involving a Gillette injury, the period during which notice must be given does not begin to run until the employee, as a reasonable person, should have recognized the probable compensability of the injury.  See Swenson v. Cal-Mech, 50 W.C.D. 1, 11 (W.C.C.A. 1993) (employee not aware of compensable nature of injury until medical report received).  The March 12, 2003, claim petition clearly lists bilateral carpal tunnel syndrome as an alleged injury arising out of the course and scope of her employment.  The employee gave notice within 180 days of the date of Dr. Wengler=s report.  The employer does not allege any prejudice by the delay in notice.  The compensation judge did not err by finding that the employee had given adequate notice of her bilateral carpal tunnel syndrome, and we affirm.

 

2.  Maximum Medical Improvement

 

The employer appeals from the compensation judge=s findings that the employer has not proven that the employee has reached maximum medical improvement from the effects of all of her work-related injuries, including her bilateral carpal tunnel syndrome, and that the employee had not yet been served with a medical opinion expressing the same.  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.  The burden of proving maximum medical improvement is normally on the employer and insurer.  Burns v. Firestone Tire & Rubber, slip op. (W.C.C.A. June 29, 1993).

 

As the compensation judge explained in his memorandum, the employer did not demonstrate that such a medical opinion was served on the employee.  Indeed, following his examination of the employee in October 2003, Dr. Barnett concluded that the employee had not reached MMI from her bilateral carpal tunnel syndrome.  Even so, the employer argues that the employee must have reached MMI from the effects of her bilateral CTS at the time of Dr. Wengler=s examination in January 2003 because he offered a permanent partial disability opinion at that time.  The compensation judge did not accept this rationale, and concluded that since there had been no service of MMI, the employee=s claim to TTD was not barred.

 

Whether MMI has been reached is a question of ultimate fact for the compensation judge to decide.  Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).  The compensation judge=s conclusions that the employee had not yet reached maximum medical improvement from all of her work-related injuries, and that she had not yet been served with a medical opinion to that effect, is supported by the medical evidence in the record, including Dr. Wengler=s testimony and Dr. Barnett=s medical report, and we therefore affirm those related findings.

 

3.  Claim for Temporary Total Disability Benefits

 

The employer did not appeal from the finding that the employee injured her left shoulder on January 4, 2000.  However, it appealed from the finding that the employee was entitled to temporary total disability (TTD) benefits for various periods of time between 2002 and 2004 as a substantial result of her left shoulder condition.  The compensation judge awarded benefits from May 8 through August 26, 2002, when the employee was restricted from work as a result of her left shoulder surgery; medical records in evidence support that award.  The employee=s physicians conducted preliminary pre-surgical evaluations on approximately May 6, 2002, and the employee underwent arthroscopic surgery on May 14, 2002, later developed an infection which required medical treatment, and then engaged in post-surgery physical therapy and exercise.  The employee=s physical condition during this 14-week period of time restricted her from employment.  Schulte v.  C.H. Peterson Construction Co., et al, 278 Minn. 79, 153 N.W.2d 130, 24 W.C.D. 290  (1967).  The physician at Mayo Clinic, who provided post-surgical follow-up treatment, advised that the employee was disabled from working during this period of time; his report and the employee=s medical records  support the compensation judge=s award of TTD and we affirm.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

The compensation judge also found that the employee was entitled to TTD between July 18 and November 12, 2003, after the employee=s work with the employer was terminated.  He based this conclusion on the employee=s job search and cooperation with rehabilitation assistance, which was provided immediately after the termination of her job.  The employee worked with a QRC and job placement vendor, and participated in a job search through November 12, 2003, although she did not locate any employment during this period of time.  As the supreme court held in Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988), a Adiligent job search remains relevant in determining total disability,@ and an Ainjured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.@  Substantial evidence of record, including the employee=s rehabilitation records and the testimony of the employee and her QRC, support the compensation judge=s finding that by engaging in a diligent job search during this period of time, the employee established her entitlement to TTD benefits.  We affirm the award of TTD benefits during this period of time.^[2]

 

The employee appeals from the compensation judge=s denial of TTD benefits between January 25 and May 3, 2004.  Although she made no claim for wage loss benefits for approximately two months following the birth of her twins in November 2003, the employee contends that she contacted her QRC and placement vendor in late January 2004, to resume her job search, and therefore is entitled to TTD thereafter.  The compensation judge denied the employee=s claim for this period of time, concluding that she did not perform a reasonable and diligent search for work necessary to establish her claim for TTD.

 

The record supports this finding, and the compensation judge was justified in concluding that the employee did not conduct a reasonable and diligent job search during these 14 weeks. During this period, from mid-November 2003 through late January 2004, the placement vendor provided the employee with less than 15 concrete job leads, and the employee recorded 23 job contacts in her job logs, which represent an average of less than two contacts per week. The rehabilitation records generated during these 14 weeks are very limited; the record contains no detailed reports from the QRC, and the placement vendor submitted periodic and limited descriptions of her work.  Given the record as a whole, the compensation judge reasonably concluded that the employee=s job search was insufficient.  See Ahoe v. Quality Park Products, 258 N.W.2d 885, 30 W.C.D. 69 (Minn. 1977).  We therefore affirm the denial of TTD benefits during this period of time.

 

4.  Claim for Temporary Partial Disability Benefits

 

On appeal, there are two periods of time in dispute for which the employee claimed entitlement to temporary partial disability (TPD) benefits: August 27, 2002, through July 17, 2003, and May 4, 2004, through the date of the hearing on June 2, 2004.  The compensation judge awarded TPD between August 27 and October 8, 2002, and denied claims for TPD thereafter.  The employer appeals from the award of TPD benefits in 2002; the employee appeals from the denial of benefits claimed between October 9, 2002, and July 17, 2003, as well as the denial for benefits in May and June 2004.

 

Temporary partial disability benefits are payable while the employee is employed, earning less than his weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee=s partially disabled condition is due to the injury.  Minn. Stat. ' 176.101, subd. 2(b).  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).  Following her recovery from surgery, the employee returned to work for the employer on August 27, 2002, in a light-duty capacity.  She worked under restrictions assigned by her physicians at the Veterans Administration Medical Center.  Based on her medical records, the compensation judge determined that the employee was restricted to part-time work, and accordingly awarded TPD benefits for approximately six weeks.  Since substantial evidence of record supports that award, we affirm.

 

The compensation judge denied TPD benefits for the remainder of the time that the employee continued to work for the employer, October 8, 2002, through July 17, 2003.  By October 7, 2002, the employee was released to return to work without limitations.  Although the employee later was assigned restrictions against stair climbing and repetitive gripping, the employee offered no evidence that these restrictions affected her job duties or work hours.  In addition, between October 2002 and July 2003, the employee missed substantial periods of time from work for illness and for medical treatment and consultations unrelated to her work injuries.  The compensation judge concluded that the employee=s reduction in earnings, between October 2002 and July 2003, did not result from restrictions related to her work injuries.

 

An employee's loss of earning capacity must be causally related to the disability before benefits are due.  Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988); Cosgrove v. HealthEast Corp. Serv., slip op., (W.C.C.A. August 9, 2005).  Our review of the record confirms that the evidence clearly supports the compensation judge=s conclusion that the employee=s decreased earnings between October 8, 2002, and July 17, 2003, were unrelated to her work injuries and instead were caused by personal reasons.  We therefore affirm the denial of TPD between October 8, 2002, and July 17, 2003.

 

The compensation judge also denied the employee=s claim for TPD for the month preceding the hearing.  In May 2004, the employee began working at a part-time cleaning position, earning $6.00 per hour for 6 hours per week.  She sought temporary partial disability benefits, based upon her earnings from this job.  The compensation judge acknowledged that, ordinarily, 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).  He found, however, that this job did not accurately reflect the employee=s earning capacity, as conceded by the employee=s QRC.  He also concluded that the employee did not engage in any job search after obtaining that job that may have provided her with other appropriate employment.

 

Whether wage loss during part-time employment is a result of the personal injury is generally a question of fact.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995).  In deciding this issue, a compensation judge may consider any relevant evidence on the issue, including, as the employer advocates, the nature and extent of the employee=s job search.  Stauty v. Luigino=s, Inc., 52 W.C.D. 119 (W.C.C.A. 1994).  See also Kunferman v. Ford Motor Co., 65 W.C.D. 198 (W.C.C.A. 2004), summarily aff=d (Minn. Apr. 20, 2005).  However, the reasonableness and diligence of the employee=s job search is only one factor for the compensation judge to consider and is not an absolute prerequisite to receipt of temporary partial disability benefits.  Nolan, 53 W.C.D. at 394.  In view of the very limited wages the employee earned from her part-time employment, and in view of the record as a whole, we conclude that the compensation judge=s denial of TPD for this period of time is supported by the record and we therefore affirm that denial.

 

5.  Permanent Partial Disability

 

The compensation judge awarded permanent partial disability benefits (PPD) related to the employee=s right eye, left shoulder and left wrist; the employer appeals from the award of PPD related to the employee=s left shoulder and left wrist.  The compensation judge also denied the employee=s claims for permanent partial disability related to her cervical spine, both knees and right wrist; the employee appeals from those denials.  In addition, the employee appeals from the level of PPD awarded by the judge for the employee=s right eye injury.

 

In considering each of the claims and issues, the compensation judge reviewed the medical evidence, compared the conflicting medical opinions and evidence concerning each claim for PPD, and based his conclusions on expert medical opinions.  We have consistently held that the choice between competing medical opinion is within the province of the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Nini v. Gold=n Plump, slip op. (W.C.C.A. Mar. 15, 2004).  In addition, to obtain a permanent partial disability rating, an employee must show that each element set forth in the relevant schedule is met.  Voigt v. City of Little Falls Police Dept., slip op. (W.C.C.A. Mar. 17, 2003), citing Lohman v. Pillsbury Co., 40 W.C.D. 45, 51 (W.C.C.A. 1987); Knudson v. Twin City Hide, Inc., 40 W.C.D. 336, 338 (W.C.C.A. 1987).  See also Kump v. Hillcrest Healthcare Ctr., slip op. (W.C.C.A. Nov. 9, 1999).  The compensation judge determined that the employee=s condition satisfied the criteria of the permanency schedules, for a portion of her claims.  We affirm the compensation judge=s findings concerning these claims, as further explained below.

 

      a.  Left shoulder

 

The employer appeals from the award of permanency benefits related to the employee=s shoulder, primarily on the basis that it denies that there is a causal relationship between the employee=s work injuries and her left shoulder condition and surgery.  The compensation judge found that the employee sustained 3% PPD related to her left shoulder condition.  He based this finding on the rating assigned to the surgery the employee underwent in May 2002, a subacromial decompression with excision of the distal clavicle, pursuant to Minn. R. 5332.0450, subp. 2C.  Dr. Wengler assigned a 6% rating based upon a full thickness tear of the rotator cuff.  However, the employee=s medical records document, at most, a partial tear of the employee=s left rotator cuff, and the surgical report refers to a small tear in the rotator cuff which, according to Dr. Barnett, was most likely caused by the arthroscope.  Dr. Barnett opined that the shoulder surgery was reasonable in view of the employee=s symptoms, and that a 3% PPD rating was appropriate because of the procedure.  After consideration of these contrasting opinions, the compensation judge concluded that,

 

The preponderance of the evidence demonstrates that the employee did sustain two injuries to her left shoulder and suffered ongoing symptoms thereafter.  The surgical procedure was a reasonable attempt to address these symptoms and resulted in a 3 percent permanent partial disability rating.

 

(Memo., p. 17.)  We have affirmed the finding that the employee=s left shoulder condition, surgery and related disability were causally related to her work injuries.  We also conclude that the record supports the compensation judge=s finding that the employee sustained 3% PPD relative to her left shoulder, and therefore affirm that award of permanency benefits.

 

      b.  Left and Right wrist

 

The compensation judge awarded permanent partial disability benefits related to the employee=s left wrist; the employer appeals from that award.  The compensation judge also denied the employee=s claims for permanent partial disability related to her right wrist; the employee appeals from that denial.

 

Dr. Wengler assigned a 3% PPD rating to each of the employee=s arms as a result of her bilateral carpal tunnel syndrome, citing to the portion of the PPD schedule that refers to nerve entrapment syndrome, substantiated by electrodiagnostic testing, that causes persistent pain and paresthesia despite treatment.  The compensation judge found that the PPD category that most closely represents the employee=s left wrist condition is that which Dr. Wengler referred to, and awarded benefits based upon a 3% rating.  The judge also found that the PPD category that most closely represents the employee=s right wrist condition refers to a zero percent rating.

 

The compensation judge referred to the employee=s medical records that confirm the diagnosis of bilateral CTS and record an injection to the employee=s left wrist on December 31, 2002, without significant relief.  He also referred to the employee=s testimony that her symptoms have decreased somewhat since she stopped working for the employer, particularly on the right side, but that she continues to experience some pain and numbness in her left wrist.  The compensation judge noted that Dr. Wengler assigned the permanency ratings to both wrists at a time when the employee continued to work for the employer, and that her symptoms have somewhat resolved since that examination.  Based upon our review of the employee=s medical records and the employee=s testimony, we believe that the compensation judge=s conclusions are supported by substantial evidence of record, and therefore affirm his findings concerning the employee=s claims for PPD based on her bilateral CTS.

 

      c.  Right eye

 

The employee appeals from the compensation judge=s finding that the employee sustained a 12% PPD rating related to her right eye injury of November 25, 2002.  The record contains two conflicting medical opinions on the appropriate rating for the employee=s eye condition.  The judge based his decision on the 12% rating assigned by Dr. James Allen, independent medical examiner, who examined the employee on September 9, 2003.  The employee argues that the 17% rating assigned by her treating eye doctor, Dr. Colin McCannel, more accurately represents her right eye condition.^[3]  The parties base their respective arguments, in part, on the timing of the examinations by the two doctors.  The employer argues that Dr. Allen=s rating should be followed since he examined the employee more recently than did Dr. McCannel, and that Dr. Allen=s rating represents an improvement in the employee=s vision.^[4]  The employee argues that Dr. McCannel=s rating should be followed, as the record does not necessarily show that Dr. McCannel=s examination and rating pre-dated that of Dr. Allen.

 

The compensation judge addressed this dispute in his memorandum, and outlined the basis for his finding of a 12% rating.  He stated as follows:

 

The permanent partial disability schedule for loss of vision is a complicated one.  It appears that both examiners used the same rating system, although Dr. McCannel refers to the AMA rating procedures.  They begin with slightly different findings as to the employee=s vision in the right eye.  This is somewhat problematic since there are no records from Dr. McCannel=s actual exam.  His single page report does not refer to the date of his exam.  The intervention documents from Mayo do not contain records or charges related to Dr. McCannel=s exam, however the referral letter from Dr. Sunil S. Kannah is dated 12/5/02.  It seems reasonable, therefore, to assume that Dr. McCannel examined the employee sometime before 9/9/03.

 

Based upon the above, I conclude that Dr. Allen saw the employee more recently than Dr. McCannel and that the difference in their findings most likely represents an improvement in the employee=s vision.  I therefore adopt Dr. Allen=s 12 percent permanent partial disability rating as the most appropriate.

 

In view of the record as a whole, we believe that the compensation judge=s conclusion was reasonably based on the expert medical opinion of Dr. Allen, and we affirm that finding.^[5]

 

      d.  Cervical spine

 

The employee appeals from the compensation judge=s conclusion that she had not sustained any ratable PPD as a result of her neck injuries.  The employee claims entitlement to benefits based on a 10% rating.  Dr. Wengler examined the employee in January 2003 and assigned a 10% PPD rating, pursuant to Minn. R. 5223.0370, subp. 4C(4), which requires radicular pain or paresthesia with MRI evidence of abnormalities at multiple levels, and requires persistent objective clinical findings of involuntary muscle tightness or decreased passive range of motion.  Dr. Barnett rated no PPD relative to the employee=s cervical spine, concluding that her MRI scans were normal for a person of her age and that they demonstrated no degenerative changes, and that the employee=s examination findings showed a normal ranges of motion, no muscle spasm and no radicular findings.  In addition, Dr. Boes, who also examined the employee in early 2003, noted normal range of cervical motion and no evidence of radiculopathy.

 

The compensation judge evaluated the contrasting medical opinions, and summarized his conclusions as follows:

 

The employee continues to describe neck pain with numbness in her left arm.  She failed to demonstrate persistent objective clinical findings or muscle tightness or reduced range of motion.  Her diagnostic testing did not demonstrate significant degenerative changes and her arm complains were not shown to be attributable to a specific nerve root level.  She has not proven her claim of permanent partial disability by a preponderance of the evidence.

 

As the medical evidence, including Dr. Barnett=s report, supports the compensation judge=s finding that the employee has sustained no PPD relative to her cervical spine, we affirm that finding.

 

      e.  Bilateral knee injuries

 

In an unappealed finding, the compensation judge concluded that the employee sustained bilateral knee injuries as a substantial result of her January 4, 2000, injury.  The compensation judge also found that the employee did not sustain any PPD relative to her knee injuries, as a result of that injury; the employee appeals from that finding.

 

The employee has experienced pain since that injury, and the compensation judge concluded that A[t]here appears to be no dispute that the employee most likely suffers from chondromalacia, a degenerative condition of the underside of her patallae.@  Dr. Wengler assigned a Weber rating^[6] of 1% PPD for each knee, referring to that portion of the permanency schedules that refers to patellar shaving, a procedure which the employee has not undergone, but is sometimes recommended for chondromalacia.  By contrast, Dr. Barnett questioned whether the employee had sustained trauma to her knees and stated that chondromalacia is a common condition, but he did assign restrictions based upon the employee=s symptoms in her knees.

 

The compensation judge evaluated the employee=s medical records and the conflicting medical opinions, and concluded that,

 

While it appears that the employee did sustain direct trauma to her knees and while she does continue to experience some symptoms, she has not proven her permanent partial disability claim by a preponderance of the evidence.  Dr. Wengler=s rationale was not persuasive.

 

As the medical evidence, including Dr. Barnett=s expert medical opinion, supports the compensation judge=s finding of no PPD relative to the employee=s knees, we affirm that finding.

 

6.  Veterans Administration Medical Center Intervention Claim

 

The employer appeals from the compensation judge=s award of reimbursement to the Veterans Administration Medical Center, for medical treatment provided to the employee.  The employer does not dispute that the treatment rendered was reasonable, necessary and causally related to the employee=s injuries.  The employer argues, however, that the VA Medical Center failed to comply with the employer=s managed care plan provisions and that this failure extinguishes its right to reimbursement.

 

The rules governing the provision and administration of Minnesota workers= compensation benefits, as well as the Minnesota Workers= Compensation Act, allow employers to participate in a managed care plan which sets forth certain requirements for medical care provided to employees who sustain work-related injuries.  See Minn. R. 5218.00, et seq. and Minn. Stat. ' 176.1351.  In this case, the employer is covered by a managed care plan through CorVel.  That plan limits employees= medical care to certain medical providers, or, alternatively, covers medical treatment rendered elsewhere as long as certain criteria are met.  The VA Medical Center, where the employee received some of her treatment for her work-related injuries, including her cervical spine surgery in 2002, was not a participating provider under the employer=s plan.  The employer agreed, however, that the employee was entitled to seek treatment through the VA Medical Center, under the managed care plan, since she had a history of treating there during the two years prior to her 1997 work injury.   Even so, the employer argues that the VA Medical Center did not properly comply with the requirements of the managed care plan, even after being duly informed, in writing, of the requirements, and therefore is not entitled to reimbursement.

 

Minn. R. 5218.0500, subp. 1, provides that a non-participating provider must be advised of the provisions and requirements of an employer=s managed care plan.^[7]  The employer argues that the VA Medical Center was properly notified of the provisions of the managed care plan.  A representative of CorVel testified at the hearing that CorVel mailed a letter to the VA Medical Center on May 31, 2001, that outlined procedures the VA Medical Center must follow in order to obtain pre-certification for various medical services.  The CorVel representative also testified that the VA Medical Center responded to that letter from CorVel, but that its response did not fully satisfy the plan requirements and the provisions outlined in the advisory letter, including the requirement that the VA Medical Center outline its treatment plan proposed for the employee.

 

The CorVel representative did not have the employee=s file with her at the time of the hearing, and the employer did not offer a copy of any specific advisory letters sent to the VA Medical Center.  The record, therefore, only contains a printout of the sample form letter sent by CorVel to non-participating medical providers, but does not contain a copy of the actual letter sent to the VA Medical Center.

 

In his memorandum, the compensation judge explained that the VA Medical Center=s claim Ashould not be denied for failure to comply with managed care rules in the absence of clear evidence that [it was] first provided with notice regarding those rules,@ and that the employer and managed care plan did not prove that the VA Medical Center, as an intervenor and non-participating provider, was provided with notice as required by the workers= compensation rules.  Based upon the evidence presented at the hearing, including documentary evidence and witness testimony, the compensation judge reasonably concluded that the evidence did not clearly show that the VA Medical Center was provided with notice regarding the rules of the managed care plan.  We therefore affirm the judge=s finding and his award of reimbursement to that intervenor for medical expenses.

 

7.  Rehabilitation Assistance

 

The employer appeals from the compensation judge=s finding that the rehabilitation services provided up to the date of hearing were reasonable and appropriate.  The employer=s primary arguments on appeal are based on its denial that any restrictions related to the employee=s left shoulder and bilateral carpal tunnel syndrome are causally related to the employee=s work injuries.  The employer asserts that if those restrictions were determined to be unrelated to the employee=s work injuries, then the employee would not be a Aqualified employee@ because she would not be permanently precluded from engaging in her usual and customary occupation because of the effects of a work disability.^[8]

 

The compensation judge concluded that the employee=s work injuries have resulted in permanent impairment and ongoing restrictions which are barriers to future employment.  He concluded that the employee Amay reasonably be expected to benefit from rehabilitation assistance.@  We have affirmed the compensation judge=s findings concerning restrictions, temporary disability and permanent partial disability, and conclude that his findings on the employee=s entitlement to rehabilitation assistance are clearly supported by the evidence in the record.  We affirm his award of the claimed rehabilitation expenses.

 

8.  Wage Issue

 

One of the issues addressed at hearing was a dispute over the weekly wage rate at the time of the employee=s January 4, 2000, injury.  The employee claimed a wage of $623.35, calculated on the basis of a five-day work week.  The employer argued for a wage of $546.62. Because the employee=s wages were Airregular@ during the 26 weeks preceding January 4, 2000, in that her hours and wages varied each week, the employer calculated the average of the employee=s wages earned during the 26 weeks, which resulted in a wage of $546.62.  The employer argued, alternatively, that the weekly wage was $546.05, based on the calculation method set forth in Minn. Stat. ' 176.011, subd. 3 and 18.

 

Minn. Stat. ' 176.011, subd. 3, in effect on the injury date of January 4, 2000, outlines the computation method to use to calculate daily and weekly wage when an employee=s wages are Airregular@:

 

ADaily wage@ means the daily wage of the employee in the employment engaged in at the time of injury but does not include tips and gratuities paid directly to an employee by a customer of the employer and not accounted for by the employee to the employer.  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, or if the employment was part time, 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 . . . .

 

Based on the statute in effect on the injury date, although the employee=s total pay, including her holiday and vacation pay, is to be included in the daily wage calculation, the days for which holiday and vacation pay were made are not included in the calculation.  Fougner v. Boise Cascade, 460 N.W.2d 1, 43 W.C.D. 281 (Minn. 1990).  The same is true for sick leave pay.  Boschee v. Barry Blower, slip op. (W.C.C.A. Aug. 25, 1989).  See Ostrander v. Durkee-Atwood, 43 W.C.D. 267, 269 (W.C.C.A. 1990) (days on which the employee did not perform employment duties but received vacation and holiday pay not counted as days actually worked), summarily aff=d (Minn. Aug. 31, 1990).

 

In this case, Hormel=s wage records specified the days the employee worked, and the parties properly used the days the employee actually worked in order to calculate her daily wage. Both parties agreed that the employee=s total wages earned during the 26 weeks totaled $14,212.16, and that she performed the duties of her job on 114 days, which calculates to a daily wage of $124.67 ($14,212.16 divided by 114 days = $124.67).

 

Once the daily wage has been calculated, weekly wage is then generally determined by multiplying the daily wage by the number of days normally worked, as provided by Minn. Stat. ' 176.011, subd. 18:

 

Weekly 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 . . . .

 

The parties disagree on the number of days to be used for calculating the weekly wage.  The employer argued, and the compensation judge agreed, that under the statutory method outlined above, the employee worked an average of 4.38 days per week (114 days divided by 26 weeks) which results in a weekly wage of $546.05 (4.38 days x $124.67 per day).  At the hearing, the employee argued that the weekly wage should be based on 5 days per week, since that is the number of days Anormally@ worked in the business of the employer.^[9]  The employee argues that using the higher number of days to calculate the wage rate would more accurately represent the employee=s future earning power that was impaired or destroyed because of her work injury.  We are not persuaded.

 

The evidence in the record documents the days actually worked by the employee; the compensation judge correctly used that number in order to calculate the employee=s weekly wage rate, pursuant to the statutory method in effect on the injury date of January 4, 2000.  Since the record supports the compensation judge=s method of calculation and his finding concerning the employee=s wage rate, we affirm, but modify Finding No. 4 from $546.62 to $546.05, to accurately reflect the statutory calculation.^[10]