EARL E. HART, Employee/Appellant, v. EVTAC MINING CO. and NORTH RIVER/CRUM & FORSTER INS. GROUP, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 31, 2005

 

No. WC05-166

 

HEADNOTES

 

PRACTICE & PROCEDURE - ADEQUACY OF FINDINGS.  Where the compensation judge=s findings provide no facts essential to the ultimate decision on the issue of whether the employee=s work injury represented a substantial contributing cause of the employee=s loss of earnings, and therefore those findings provide no information for the reviewing court to determine from the record whether the facts support the compensation judge=s decision, remand for reconsideration and further findings is necessary.

 

Vacated and remanded.

 

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

Compensation Judge: Nancy Olson

 

Attorneys: James B. Peterson, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, MN, for the Appellant.  Michael J. Koshmrl, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s findings that the employee was not disabled from employment for two periods of time between May and October of 2003, as a substantial result of his work injury of May 16, 2002, and from the related denial of the employee=s claim for temporary total disability benefits.  We vacate and remand the matter to the compensation judge.

 

BACKGROUND

 

Mr. Earl Hart, the employee, has worked as an electrician throughout his entire career.  He worked for the EVTAC Mining Company, the employer, in the mid 1960s, then worked in construction for approximately 20 years before returning to EVTAC  in 1988.  While working as a construction electrician, he performed various jobs that involved lifting and working at heights, climbing scaffolding, repetitive bending, extension and twisting of his neck as well as working over shoulder height.  The employee testified that his work at EVTAC primarily involved maintaining equipment, with some equipment installation work as well.

 

On May 16, 2002, the employee injured his neck while moving cable wire.^[1]  While moving some cable wire, pulling to dislodge it from being stuck on a corner, he looked down in order to step around concrete chunks on the floor, and he jammed his head onto a cable tray support, which he described as a steel bracket.  At the time of this incident, the employee was wearing a construction hard hat.  He noted neck pain, but continued working and was able to complete his shift that day.  The employee first sought medical treatment a few days later, on May 24, 2002, reporting stiffness and discomfort in his neck.  Paul Ramsey, physician=s assistant at the Duluth Clinic-Virginia, noted a limited range of motion of the head, diagnosed a neck spasm secondary to contusion and prescribed pain medication.  X-rays taken that day showed moderate degenerative change at the C5-6 and C6-7 interspaces, and reversal of the normal cervical lordosis, which the radiologist described as a Anonspecific finding sometimes seen in patients with neck pain.@  The physician=s assistant assured the employee that his symptoms should resolve within two or three weeks and that his pain should resolve within 1-2 days, recommended that he should return to the clinic in 2-3 weeks if his symptoms were not relieved by then, and released the employee to return to work with no restrictions.

 

The employer and insurer admitted primary liability for the employee=s injury, and have paid medical benefits on behalf of the employee, as well as benefits based upon a rating of 10% permanent partial disability of the whole body, related to the employee=s cervical spine.

 

On June 10, 2002, the employee consulted Dr. T. Scott Douglass in the occupational medicine department at the Duluth Clinic-Virginia, who the employee described as Athe company comp doctor.@  According to Dr. Douglass=s chart note of that date, the employee reported he was 85 to 90 percent back to normal, although he still noted pain near the base of his neck and had persistent symptoms of Apins and needles,@ and numbness in the index finger and thumb of his left hand.^[2]  Dr. Douglass diagnosed cervical strain secondary to jamming his head and neck and prescribed anti-inflammatory medication.  Dr. Douglass also recommended physical therapy, but the employee advised that he would prefer to perform range of motion exercises at home, which the doctor considered to be a reasonable course of action.  The employee also attended six physical therapy sessions in July 2002 to treat his neck symptoms.

 

The employee continued to work for the employer, and testified that he was able to continue working until May 2003, because he had a helpful partner who would perform some of his work.  The employee asserts that he worked in a modified electrician position during that period because of the restrictions or suggestions imposed by Dr. Douglass.

 

The employee periodically consulted Dr. Douglass through October 2002.  Dr. Douglass completed various APhysician=s Report of Workability@ forms during the time he treated the employee.  According to the employee=s testimony, he advised the doctor he did not want work restrictions assigned to him, explaining through his testimony that Ait was a well known fact that the company would not let anybody work who had restrictions.@  However, Dr. Douglass completed the comments portion of workability forms, adding suggestions concerning the employee=s level of activity.  For example, on a form dated June 10, 2002, Dr. Douglass advised AAvoid jarring neck and overhead work and heavy lifting as he has been.@  On September 4, 2002, Dr. Douglass noted that the employee should Aavoid extension of neck and jarring of neck.@

 

At Dr. Douglass=s referral, Dr. Robert Donley conducted a neurosurgical consultation on January 16, 2003, and diagnosed generalized cervical spondylosis, focal at C5-6 and C6-7 with some relative stenosis, an intact neurologic system without focal neurologic deficit or any long tract compressive myelopathic findings, and significant degenerative disc interspace collapse at C5-6 and C6-7.  Dr. Donley recommended conservative management as opposed to surgery and made no mention of work restrictions.  The employee again consulted Dr. Douglass on April 4, 2003, at which time Dr. Douglass provided a workability report which stated that the employee had no restrictions for his current work activities, but which also stated ANeed to avoid extension of neck, jarring of neck, repeated twisting of neck.@  He prescribed ibuprofen, as needed, as well as Flexeril.

 

On May 17, 2003, the employee was laid off from the employer, along with all other employees at the EVTAC plant.  The parties stipulated that the employee was laid off for economic reasons on that date.  He was called back to work for the employer on October 6, 2003, and has continued to work at the plant since that time.  EVTAC was sold to United Taconite in early December 2003, and the employee has continued to work on a full-time basis as an electrician for United Taconite.

 

On March 2, 2003, the employee underwent a physical examination with Dr. Christie Momont.  He reported that during the past six months he had noticed some low sternal discomfort with exertion and climbing stairs.  Dr. Momont diagnosed classic angina pectoris and administered a stress test to the employee; based on the results of that test, Dr. Momont ordered an angiogram which led to a cardiologist advising the employee that he needed a heart bypass.  At the referral of Dr. Momont, the employee consulted Dr. James Langager on May 19, 2003, describing a type of chest pain he had experienced when moving surplus piles of rebar that he was picking up at the plant for personal use.  On May 28, 2003, the employee underwent triple bypass surgery to repair blockage in three coronary arteries.

 

The employee consulted Dr. John Fetter on June 10, 2003, at which time Dr. Fetter advised him that everything Alooked great,@ that his sternum had healed up, and, according to the employee=s testimony, that he could do what he wanted to do, Ajust not overdo anything.@  On that date, Lynn Bergal, R.N., advised the employee that he should not return to work with any heavy lifting or difficulties for six to eight weeks following his operation.  After those consultations, the employee began a cardiac rehabilitation program of 10 weeks in duration, attending rehabilitation sessions twice weekly.

 

Following the plant shutdown, all of the employees at EVTAC filed for unemployment benefits.  Although the employee received unemployment benefits following the layoff, those benefits were discontinued in August 2003 shortly after he filed a claim petition seeking payment of temporary total disability benefits.  Although he appealed from the denial of unemployment benefits, those benefits were never reinstated.  During his layoff from the employer, the employee was paid supplemental unemployment benefits by the employer, but only during the period he received unemployment benefits.  While laid off from work, the employee sought replacement work as an electrician.  He registered at the union halls where he was a member, contacted mining companies to inquire if they were hiring, and networked with other electricians.  The employee also contacted local construction companies in the hopes of finding work.  In spite of these efforts, he was not offered any jobs between May and October 2003.  The employee also searched for work at the job services office during his layoff period, and maintained weekly contact with the employer when he picked up his weekly supplemental unemployment check at the employer=s office.

 

The employee last consulted Dr. Douglass for examination of his neck in August 2003, reporting neck pain, intermittent left arm and hand symptoms, stiffness and soreness in his neck and decreased range of motion in his neck.  Dr. Douglass reviewed the employee=s recent EMG of his left arm, which showed evidence of left carpal tunnel syndrome and a mild ulnar neuropathy at the left elbow.  In response to a detailed request for information submitted to him by the Minnesota Department of Economic Security, Dr. Douglass prepared a letter, dated September 22, 2003, in which he outlined the diagnosis, symptoms, and permanent work restrictions related to the employee=s neck condition, carpal tunnel syndrome and ulnar neuropathy.  Dr. Douglass stated, in part, that:

 

His restrictions did not require him to leave work for Evtac, which was the company he was working for.  He was able to work around his physical limitations.  He does not require surgery at this time, but might be a candidate for a carpal tunnel release in the future.  He does not currently require surgery on his neck. He is currently seeking employment.  I do not consider him totally and temporarily disable[d].

 

My understanding is that he is currently unemployed because his employer shut down the mine that he was working at, not because of an inability of his to do the work that he was doing.  His disability  did not cause him to be unemployed.  His unemployment was the result of a company shutdown, and the company went out of business.

 

I hope this is helpful to you in understanding his current situation.

 

In December 2003, the employee received a decision from the Minnesota Department of  Employment and Economic Development, rejecting his appeal from the denial of unemployment benefits.  In that decision, the unemployment compensation judge concluded as follows:

 

In order to be eligible for unemployment benefits, the applicant must be able to work.  In order to be able to work, an applicant must have the physical ability to do the usual duties of his usual occupation or of comparable employment.  Based on the evidence in the file, including statements from the applicant=s physician, it must be concluded that the applicant does not have the physical ability to perform the usual duties of his usual occupation or of comparable employment.

 

The applicant is an electrician.  He is restricted from frequent and repeated grasping with his hands.  This puts a severe limitation on the applicant=s use of hand tools, something that is necessary for an electrician.  Also, the applicant=s problems with his neck prevent the type of work an electrician normally performs.  The applicant=s multiple conditions prevent him from performing the usual duties of his usual occupation.  Therefore, the applicant is not able to work and is, therefore, not eligible for unemployment benefits.

 

DECISION

 

The applicant has not been able to work for the period beginning August 24, 2003, and continuing until conditions change.  The applicant is not eligible for benefits for that period.^[3]           

 

Also in December 2003, as part of the hiring process for the successor company, United Taconite, that employer retained Dr. Rawlings to review all employees= health care questionnaires and to determine which employees required work restrictions or would be asked to undergo preemployment physical examinations.  Dr. Rawlings completed a functional capacities evaluation report on December 4, 2003.^[4]  Dr. Rawlings marked the following restrictions: occasional carrying up to 35-50 pounds, but no carrying over 50 pounds; occasional lifting up to 35-50 pounds, but no lifting over 50 pounds; no use of his head and neck from frequent flexing nor frequent rotating; and avoidance of work over shoulder and head height. The employee was asked to undergo an examination with Dr. Donald Mersch, Hibbing Family Medical Center.  In his chart note of December 19, 2003, Dr. Mersch referred the employee for a functional capacity assessment regarding his neck, and stated that AI don=t think there=s any issue cardiovascular wise.  We=ll see if he can perform adequately for his job description.@  The employee then underwent a job placement assessment conducted by Mr. Bob Bjur;^[5] according to the report from that assessment, dated December 19, 2003, the employee was approved to perform the functional requirements of his job description, and needed no modifications in order for him to perform those tasks.

 

On March 17, 2004, at the request of the employer and insurer, the employee was examined by Dr. Paul Wicklund; he concluded that the employee sustained a permanent injury to his cervical spine as a result of his 2002 work injury, and assigned a rating of 10% permanent partial disability related to the employee=s cervical spine.  Dr. Wicklund concluded that the employee would have reached maximum medical improvement from his neck strain within 30 days of the injury, and that he would have been employable at the time of his layoff in May 2003, and again following his recuperation from heart surgery, concluding that his permanent disability rating would not prevent him from doing his work as an electrician.  Dr. Wicklund also concluded that the employee needed no restrictions relative to his neck other than avoiding excessive extension of his neck.

 

The employee testified that since his injury in May 2002, his neck has hurt when he moves in certain ways and holds it in certain positions.  The employee testified that his neck still hurts, that he restricts his movements, and that it still bothers him to move his neck in certain positions and to work over his shoulder level.  In spite of those symptoms, he has continued to work full-time for United Taconite as an electrician.  After November 2003, the employee worked a substantial amount of overtime, and at the time of the hearing on January 21, 2005, he was working regular overtime.

 

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).

 

DECISION

 

The compensation judge denied the employee=s claim for temporary total disability benefits.  She concluded that the employee was disabled by his heart condition from May 28 through July 28, 2003.  She also found that Athe employee=s testimony did not support that his job search was in any way impacted by physical restrictions related to his neck,@ and that he was laid off from EVTAC for economic reasons.  Accordingly, she concluded that the employee had not established that his loss of earnings in 2003 bore any relation to his work-related neck injury of May 16, 2002.

 

The compensation judge=s findings are limited.  At Finding No. 1, the compensation judge stated that she accepted the employer and insurer=s position that the employee was disabled by his heart condition from May 28, 2003, until July 28, 2003.  She also described his treating physician=s release of the employee to driving a vehicle by June 10, 2003, and his release on July 15, 2003, for a gradual release to full activity.  There is no other reference in the compensation judge=s findings nor memorandum concerning the employee=s heart condition, and therefore the findings and memorandum provide no information concerning the nature of the employee=s heart condition, the restrictions placed on the employee by his treating physicians as a result of his heart condition, and, therefore, on what basis the compensation judge concluded that  the employee=s heart condition was the condition that disabled him from work between May 28 and July 28, 2003.

 

Likewise, the information provided in the findings concerning the employee=s neck condition in 2003, including restrictions assigned by his treating physicians for his neck, includes no explanation of the basis for the compensation judge=s conclusion that the employee=s loss of earnings was not causally related to his work injury of May 16, 2002.  The sole reference in the findings and order to the issue of whether there was a causal relationship between the employee=s wage loss and his work injury is found in the compensation judge=s memorandum, in her statement that the employee=s testimony and the testimony of the employer=s witnesses Adid not support that the employee=s lost wages for the period  he was laid off during the plant closure had any relation to the work injury.  The employee worked with no significant restrictions prior to the lay off and returned to work in the same position working significant overtime hours.@

 

The employee argues that although the compensation judge found that the employee=s job search was not impacted by his physical work restrictions related to his neck, she failed to or improperly looked at certain factors in order to evaluate the relative diligence of the employee=s job search.  The employee argues that the compensation judge made an implied finding that the employee did not perform a diligent job search, although that was not explicitly stated in either her findings or memorandum, nor was any basis for that implicit finding articulated in the judge=s decision.  In response, the employer argues that the employee has misconstrued the compensation judge=s findings, arguing that the judge did not require the employee to prove that his job search itself was impacted by the physical restrictions on his neck, but, rather, that the judge concluded that  the employee did not convey those physical restrictions while looking for employment.  The employer and insurer also point to the employee=s work activities after his return in October 2003 as demonstrating his continued ability to work.

 

On the issue of the relationship between the personal injury and the employee=s neck condition, the compensation judge made only one general finding: that the employee=s testimony did not support that his job search was in any way impacted by physical restrictions related to the neck. The compensation judge=s findings provided no further explanation for her decision.  This court has stated that a compensation judge should Astate with clarity and completeness the facts essential to the ultimate decision so that a reviewing court can determine from the record whether these facts support the judge=s decision@ and Ashould not leave to the reviewing court the obligation to seek or spell out the facts supporting the judge=s decision or to choose between conflicting testimony and inferences.@  Mendez-Merino v. Farmstead Foods, slip op. (W.C.C.A. Aug. 7, 2001); see also Barbknecht v. Americ Disc, Inc., of Minn., slip op. (W.C.C.A. Mar. 3, 2005).  Remand for reconsideration and further findings is necessary where this court is unable to determine the basis for the compensation judge=s determination.  Id.  While the compensation judge referred to Dr. Douglass=s letter of September 22, 2003, that stated the employee was not disabled due to his neck, her finding makes no reference to the work restrictions delineated by Dr. Douglass in that letter.  In her memorandum, the compensation judge referred to the denial of the employee=s claim for unemployment benefits based on the employee=s disability due to his neck condition.  The memorandum, however, provides only a limited discussion of or reasons for the denial of temporary total disability benefits.  As a consequence, this court is unable to discern the basis or underlying facts upon which the compensation judge=s decision was based.  Accordingly, we vacate the compensation judge=s decision and remand the matter to the compensation judge for reconsideration based upon the existing record.