FELICIA P. LUCERO, Employee, v. SSE MFG. CO., and CNA-RSK CO., Employer-Insurer/Appellants, and BLUE CROSS & BLUE SHIELD/BLUE PLUS, Intervenor.

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 7, 2005

 

No. WC04-226

 

HEADNOTES

 

CAUSATION - AGGRAVATION; CAUSATION - PRE-EXISTING CONDITION; CAUSATION - SUBSTANTIAL EVIDENCE.  Where the two work-related aggravations of the employee=s pre-existing right leg laceration were frequently referenced in the medical records, and where there were express opinions from the employee=s treating doctor and even from the employer and insurer=s medical expert that the employee=s chronic right leg pain disability was due partly to those two work-related aggravations, the compensation judge=s conclusion that the employee=s work activities were a substantial contributing cause of the employee=s ongoing right leg condition was not clearly erroneous and unsupported by substantial evidence.

 

TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where there was expert medical opinion and other evidence of record from which the judge could reasonably conclude that the employee was totally disabled medically from working during the benefits periods at issue, and where the employee had not been given rehabilitation assistance by the employer and insurer, the compensation judge=s award of temporary total disability benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee did not search for work during the disability periods at issue.

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  A compensation judge may accept all or only part of an expert opinion, and, where the medication-based treatment at issue had been briefly effective and was reasonably promising of further effectiveness should the employee obtain resources to pay for it, the compensation judge=s award of payment for the treatment at issue was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the judge found insufficient evidence to accept the doctor=s specific diagnosis, notwithstanding a lack of objective clinical findings in the doctor=s records, and notwithstanding a lack of evidence that the doctor had reviewed all of the employee=s medical records.

 

ATTORNEY FEES - EDQUIST FEES.  Where the record contained no evidence as to the terms of the employer=s short-term disability plan or whether it was even governed by ERISA, the court rejected the appellant employer and insurer=s contention that the compensation judge=s award of Edquist attorney fees to the employee=s attorney, on amounts ordered reimbursed to the short-term disability plan out of the employee=s wage replacement award, was improper because ERISA-related events preempt any state governed event such as Minnesota Workers= Compensation actions.

 

Affirmed.

 

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

Compensation Judge: Jennifer Patterson

 

Attorneys: Karl F. Von Reuter, Minneapolis, MN, for the Respondent.  Robin Simpson and Susan M. Stepaniak, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's finding of primary liability for two work injuries and from the judge=s awards of payment of medical expenses and payment of Edquist attorney fees^[1] to the employee=s attorney.  We affirm.

 

BACKGROUND

 

In March of 2000, Felicia Lucero commenced work with the Schwan Food Company, a subsidiary of SSE Manufacturing Company, first as a production line worker and then, two months later, as a machine operator, a job that evidently entails standing for eight- to ten-hour shifts.  Ms. Lucero was at that time an active person who danced and enjoyed various sports, including snowboarding, and she had no disability, symptoms, or history of treatment for her right leg.  On December 24, 2001, while snowboarding on a vacation in Colorado, Ms. Lucero sustained a 12-inch horseshoe-shaped laceration about four or five inches above her right ankle, when she collided with another snowboarder.  Subsequent to the injury, Ms. Lucero sought treatment in the emergency department of the Health One North Suburban Medical Center in Thornton, Colorado, where the laceration was cleaned with saline, examined for foreign bodies, and closed with five stitches.  After receiving her stitches, Ms. Lucero was prescribed medication and sent home, informed that her Awound should heal quickly@ but advised that she should A[w]atch carefully for signs of infection,@ which might Ainclude increasing redness or pain, pus from the wound, red streaks coming from the wound, or fever.@  Ms. Lucero returned to her job with the Schwan Food Company in Minnesota on January 1, 2002, and on January 4, 2002, she had her stitches removed by Physician=s Assistant Anne Earsley, who noted that the laceration was Ahealing well@ and that there were A[n]o signs of infection.@  Ms. Lucero apparently received no treatment for the injury thereafter for over three months.

 

On April 18, 2002, Ms. Lucero saw PA Earsley for a recheck of her right leg laceration.  On examination, the laceration revealed Aa fair amount of moderate erythema surrounding the previously well healed wound.@  The wound was warm and tender to palpation, and there was a mild yellowish drainage.  Ms. Lucero [the employee] explained that, the preceding day, Aa friend accidentally kicked her in the shin.@  The referenced friend was James Faulkner II, a machine maintenance mechanic at Schwan=s [the employer], who has known the employee through both work and social contacts since about 1999.  Mr. Faulkner wears heavy boots on the job, and it is not uncommon for him to accidentally bump or step on or kick other workers in the course of his maintenance and repair of machinery on the employer=s production line.^[2]  The employee has since testified without controversion that, subsequent to but on the same day as the kick incident, she Aswiped@ the side of her leg light against the corner of her bed and Anoticed how incredibly sensitive it had become from the kick earlier that day.@  Either on that same date or on a later date, the employee evidently informed Mr. Faulkner that he had kicked her, and she showed him her discolored lower right leg.  He testified later that he did not recall the kicking incident itself, but he agreed that it could well have happened.  No First Report of Injury was ever filed related to an April 2002 work injury.

 

In the days following April 18, 2002, the employee evidently continued to perform her job for the employer until April 29, 2002, when she became unable to keep up with its fast pace, due to her difficulties standing, lifting, and squatting consequent to the condition of her right leg.  She returned on that date to see PA Earsley, who, finding erythema and minor oozing, diagnosed a wound infection and prescribed medications.  Two days later, on May 1, 2002, the employee was examined, apparently on an emergency basis, by Dr. Editha Liu, who diagnosed A[c]ellulitis of the right lower leg secondary to an injury sustained in December from a snow boarding accident@ and admitted the employee to the hospital for in-patient treatment with intravenous antibiotics.  Records on that date indicate that the employee=s complaints were of Apain at the right shin where she has a 3 week old ulcer@ at the site of her snowboarding laceration, which had been Ahealing well@ when A[h]er friend accidentally hit it and she also accidentally hit it on the side of the bed.@  X-rays on that date revealed no recent or old fractures and no evidence for osteomyelitis, and, noting the following day that the employee=s Aswelling ha[d] gone down significantly,@ Dr. Liu discharged the employee on May 2, 2002.  On May 6, 2002, Dr. Liu saw the employee again in follow-up and advised her to stay off work one more week.

 

On May 11 and May 21, 2002, the employee saw Dr. Wilfredo Apostol, who recommended that the employee undergo a bone scan, which was conducted on May 30, 2002.  The scan was read to be unremarkable, revealing no fractures, infections, neoplasm, or other abnormalities of the tibial shaft, although it did reveal a Asmall focus of increased activity medial malleolus left ankle [sic] suggesting reactive v. degenerative process.@  Dr. Apostol discussed the findings with the employee on June 1, 2002, and diagnosed A[c]ellulitis, healing old injury to the soft tissue, distal third of the right leg from skiing injury.@  His records indicate also that the employee was back working full time at the employer and that he Atold her not to limit her activities, in fact she should do more.@  On June 6, 2002, the employee was examined by orthopedist Dr. William F. Bell, who concluded that there was Asimply no evidence that there is any significant bony or infectious process going on@ and that there were Ano cutaneous changes suggestive of an RSD [reflex sympathetic dystrophy].@  On June 26, 2002, the employee followed up with Dr. Apostol again, who reiterated Dr. Bell=s conclusions, adding that the employee=s case might be Aevolving into a chronic regional pain syndrome@ that might require him Ato give her an option to go to a pain clinic, which she has deferred.@  The employee was ultimately paid employer-sponsored short-term disability benefits from April 29, 2002, through about July 21, 2002, and on about August 1, 2002, she returned to a modified job with the employer,^[3] at which she could sit part of the time and could avoid squatting.

 

On August 6, 2002, while performing her modified job with the employer, the employee was carrying a twenty- to forty-pound roll of film and bending forward to insert it into a machine when she apparently pinched her finger in the machine and, jerking her hand back, dropped the roll.  The roll evidently fell against her right lower leg, causing pain that was so severe that she needed help walking and was unable to complete her work shift.  The employee reported the injury to her supervisor, Stacey Weets, and was treated that same day by Dr. W. N. Kremer.  In his treatment notes, Dr. Kremer indicated that his A[e]xam shows no obvious contusion, bruising, or swelling of the lower right leg,@ but he nevertheless diagnosed A[c]ontusion to the lower leg@ and restricted the employee from use of the leg for the rest of the day, recommending that she return to work the following day restricted from all but sedentary desk work.  On August 7, 2002, a First Report of Injury was filed, documenting a work injury on August 6, 2002, and the employee was apparently verbally offered data entry work several times over the course of the following month, but she declined those offers on grounds that the medication that she had been prescribed was making her feel too groggy to do such work.  In treatment records for August 9, 2002, Dr. Apostol noted that the employee Amay have re-injured the area where she hurt before@ and that now her pain was Abecoming more intolerable.@ Dr. Apostol noted also that he would be referring the employee to a pain clinic, and shortly thereafter, according to a subsequent personnel report by Ms. Weets,  the employee informed Ms. Weets that she had a pain clinic appointment on August 29, 2002.  About this same time, on August 21, 2002, an undated Certificate to Return to Work, signed by Dr. Apostol, was evidently faxed to and received by the human resources office at the employer, indicating that the employee was to do A[n]o work until seen at a pain clinic,@ but there is no evidence that that certificate was ever directed to the attention of Ms. Weets or to the employee=s personnel file.  On August 23, 2002, the employee evidently called the home answering machine of Ms. Weets, requesting a leave of absence from her employment.

 

On August 29, 2002, on referral from Dr. Apostol, the employee saw neurology osteopath Dr. Lisa Viola.  The employee complained to Dr. Viola of episodes of sometimes very sharp and burning severe pain in her right calf and the dorsum of her right foot, together with some numbness and tingling in that same area.  Finding in part diminished sensation to light touch, pin prick, and temperature sense in the calf, the dorsum, and toes 2 through 5 of the right foot, Dr. Viola diagnosed Asignificant neuropathic pain due to repeated injury to her right anterior calf,@ prescribed nortriptyline and lidocaine patches, and ordered an EMG.  The EMG proved normal, with no evidence of radiculopathy or polyneuropathy.  On September 3, 2002, the employee saw Dr. Apostol again, who restricted her from all work for ten days, pending receipt of a report from Dr. Viola.  On that same date, September 3, 2002, the employee=s parents evidently arrived from Colorado and drove the employee back to Colorado, where the employee had once resided and where she now, with little independent income, apparently took up residence with her parents.  In an office record for September 9, 2002, Dr. Apostol noted Dr. Viola=s diagnosis and stated, AHopefully, being at home with her family will improve [the employee=s] mood.  Although further intervention may be necessary.@  On September 10, 2002, the employer wrote to the employee at a Minnesota address, informing her that her job with the employer was being terminated because she had been Aa no-call no show since August 30, 2002.@

 

On September 12, 2002, the employee filed a claim petition, alleging entitlement to temporary total and temporary partial disability, medical, and rehabilitation benefits consequent to work injuries to her right leg on both April 18 and August 6, 2002.  On those dates, the employee had been twenty-seven and twenty-eight years old, respectively, and had been earning a weekly wage of $456.28.^[4]  In their September 30, 2002, answer to the employee=s claim petition, the employer and insurer denied the occurrence of either alleged injury and affirmatively denied that they had received proper notice of the alleged April 18, 2002, injury.  They also alleged affirmatively that any disability or need for surgery to which the employee was subject was consequent to a nonwork-related snowboarding accident in December of 2001 and/or to other nonwork-related injuries or conditions.

 

On about October 15, 2002, while residing in Colorado, the employee began working about one day a week in the office of her father=s bathware repair and refinishing company, but her pain evidently made it difficult for her to concentrate sufficiently to perform detailed clerical work, and she apparently quit this work after about six months.^[5]  On November 19, 2002, on referral from chiropractor Dr. George Evans, the employee saw osteopath internist Dr. Sam Jahani.  Dr. Jahani found the employee=s condition Aa very clear cut case of reflex sympathetic dystrophy with associated neuropathy@ and prescribed Neurontin.  When he saw the employee again on December 10, 2002, Dr. Jahani indicated that the employee had responded well to an increased dosage of Neurontin and that he had treated her free of charge A[s]ince she . . . does not have very much money.@  The employee ultimately discontinued the Neurontin, however, because it was too expensive and made her feel groggy, and she subsequently discontinued a replacement prescription, Vicodin, because it upset her stomach.

 

On December 19, 2002, the employee was examined for the employer and insurer by occupational medicine specialist Dr. Orrin Mann.  Upon examination of the employee and her medical records, Dr. Mann concluded in part that the kick sustained by the employee on April 17, 2002, at work had caused an infection and cellulitis in an earlier well-healing wound and that there had been a temporary aggravation of that infection on August 6, 2002, which had lasted for two weeks.  He concluded further, in the alternative, that, A[i]f [the bed-bumping] event predated the kicking of [the employee=s] shin by a fellow employee, one could reasonably conclude that the strike on the bed initiated the problem, and not the work incident.@  It was also Dr. Mann=s opinion that there was Ano objective evidence of any ongoing injury despite complaints of severe pain out of proportion to observable pathology@ and that there was Ano evidence to support the proposed diagnosis of reflex sympathetic dystrophy.@  Further, he concluded that A[t]he prognosis is for a chronically painful scar which may in time gradually resolve without treatment,@ concluding nevertheless that the employee had already reached maximum medical improvement [MMI], subject to no permanent partial disability, no need for further treatment, and no work restrictions.  Finally, it was Dr. Mann=s opinion that the employee=s Acurrent evaluation and treatment by a family doctor, Dr. Jovani [sic], are not medically reasonable or necessary.@

 

On February 4, 2003, and April 22, 2003, the employee followed up again with Dr. Jahani.  On the latter date, Dr. Jahani reported as follow:

 

[The employee=s] lawyer called her and told her that they may be losing her case because her previous physicians have considered her pain to be Abogus@.  I suspect that the patient has definitely been in pain.  I suspect that she has reflex sympathetic dystrophy and she is in pain all the time.  She is not a malingerer and she is not here seeking drugs.

 

Later in his report Dr. Jahani reiterated that the employee Adoes have a real disease,@ that Athe pain that she [experiences] is very real,@ and that she Acontinues to be totally disabled.@  In a report to the employee=s attorney about three months later, dated July 28, 2003, Dr. Jahani reiterated his opinion that the employee was Avery much unable to carry on any type of employment at this time@ and that, apparently because he Aha[d] not had the freedom to start [the employee] on medication,@ she had not yet reached MMI.  Since August of 2003, evidently with Dr. Jahani=s consent, the employee has been enrolled in a college curriculum that permits her to take three classes each day no two of which are consecutive and to keep her right leg elevated while attending class.

 

On October 14, 2003, the employee was examined by Dr. Joan Michener, apparently as part of an application for Social Security disability benefits.  Dr. Michener diagnosed reflex sympathetic dystrophy, summarizing the employee=s post-December 2001 history of injury as follows:

 

[The snowboarding laceration] appeared to heal well until she reinjured herself.  She reinjured herself in April 2002 when she was accidentally kicked by a coworker.  She developed an infection of her wound and much pain and eventually had to be hospitalized for cellulitis.  She did go back to work briefly but reinjured the same area at work in August 2002 and has not been able to tolerate working since because of this chronic pain from her reflex sympathetic dystrophy.  She states she gets electrical sharp pains or shocking pains or pain like a dull ax.  The pains occur 25 times a day.  She hates to be touched.  It feels like a bruise that will not go away.  With even a mild bump she has a lot of pain.  It hurts with the impact of walking and so she started using a cane.  Which makes the walking a little less painful.

 

In assessing the employee=s current gait, Dr. Michener observed that the employee, while using a cane in her right hand, Ais just barely able to walk on her toes and her heels.@  Upon completing her examination of the employee, Dr. Michener restricted the employee from standing or walking more than two hours in an eight-hour day, from lifting or carrying more than ten pounds frequently or twenty pounds occasionally,  and from doing any crawling or kneeling, recommending also that she elevate her leg as much as possible when sitting and that she be allowed to use a cane at all times.  The employee was evidently denied the social security benefits that she was seeking.

 

On November 10, 2003, in reply to a query of the employee=s attorney, Dr. Jahani indicated expressly that, although the employee=s case was a Abizarre and a rather difficult scenario to imagine,@ it was his opinion that the employee=s work injuries on April 18 and August 6, 2002, were substantial contributing factors in the employee=s diagnosis and need for treatment, in that they had caused a worsening of the employee=s original snow boarding injury of December 24, 2001. 

 

The matter came on for hearing on April 27, 2004.  As of that date, the employee, who had never been assigned a QRC or otherwise given formal rehabilitation assistance, had neither worked nor looked for work for about a year.  Issues at hearing included the following: (1) primary liability for work-related injuries on April 18 and August 6, 2002, that aggravated the employee=s December 24, 2001, right leg injury; (2) the extent of any such injuries; (3) the employee=s entitlement to temporary total disability benefits for the time spans April 30 to July 31, 2002, August 7 to October 14, 2002, and May 1, 2003, on; (4) the employee=s entitlement to temporary partial disability benefits between August 1 and August 6, 2002; (5) the existence of RSD or other neurogenic pain in the employee=s right leg and any such condition=s causal relationship to one of the claimed work injuries; (6) the necessity of the health care that was provided to the employee in Colorado continuing from September 2002; and (7) the occurrence of maximum medical improvement on January 14, 2003.  By findings and order filed June 17, 2004, the compensation judge concluded in part the following:  that the employee did sustain work-related disabling injuries to her right leg on April 17 and August 6, 2002; that she was entitled to temporary total disability benefits for the period April 29 to July 31, 2002, from which benefits short-term disability benefits earlier paid to the employee were to be reimbursed to the payor; that she was entitled to temporary partial disability benefits for the period August 1 to August 6, 2002; that she was entitled to temporary total disability benefits also for the periods August 7 to October 15, 2002, and May 1, 2003, to the date of hearing; that the employee=s medical care in Colorado with Dr. Jahani, but not that with Dr. Evans, was reasonable and necessary and causally related to her work injuries; and that the employee=s attorney was entitled to attorney fees pursuant to Edquist v. Browning-Ferris, 380 N.W.2d 787, 38 W.C.D. 411 (Minn. 1986), based on amounts ordered reimbursed to the employer=s short-term disability carrier.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@  Id.

 

DECISION

 

1.  Primary Liability - Date of Injury, Causation, and Application of Case Law

 

The compensation judge found that the employee sustained disabling work injuries to her right leg on April 17, 2002, and August 6, 2002, and the employer and insurer contend initially that substantial evidence does not support that conclusion of the judge.  They argue first that the alleged April 2002 injury was alleged by the employee to have occurred on April 18, 2002, and that the Judge=s arbitrary changing of that date to April 17, 2002, was improperly repairing of the employee=s credibility and so prejudicial to their defense.  They argue also that any ongoing disability here at issue is not a consequence of any work injury or injuries that might have occurred on about April 17, 2002, or August 6, 2002, and that, in concluding that it is, the compensation judge misconstrued the legal standard set forth in Eide v. Whirlpool Seeger Corporation.

 

(a)  Date of injury.  The employer and insurer argue that the employee=s claim of a work injury in April 2002 is weakened by the fact that she repeatedly alleged an April 18 injury while her medical records appears to reference a date of injury one day prior to that.  They argue that, A[i]nstead of considering the possibility that the employee=s version of events lacked credibility, the compensation judge simply decided to resolve the problem by changing the date of the claimed injury.@  We conclude that the judge=s action was not unreasonable, particularly in light of the employee=s documented report of the kick to PA Earsley at her April 18 appointment and the evidently credited testimony of Mr. Faulkner that he recalled the employee telling him about the kick and showing him the infection allegedly consequent to that kick.  In light of this context, we do not see how the judge=s change of the alleged date of injury affects the credibility of the employee=s claim in any material way.

 

(b)  Causation.  Citing case law, the employer and insurer assert that Athe finder of fact is not free to disregard uncontroverted medical evidence@ and that Athe records of employee=s treating physicians conclusively establish that the employee did not sustain injuries at work on April 17 or 18, 2002 and August 6, 2002 resulting in disability.@  They argue that the employee=s treating physicians repeatedly associated the employee=s condition with her snowboarding accident of December 24, 2001, together with the injury that she sustained when she struck her leg on a wooden bed frame at home.  They argue further that the medical records for April 18, 2002, Ado not contain the kind of findings that would be expected following a fresh kick or bump sustained at work,@ that PA Earsley noted Aredness, swelling and drainage surrounding the employee=s wound area on the date of the alleged injury,@ such symptoms being Anot indicative of a one-day-old infection,@ and that medical notes from Dr. Liu on May 1, 2002, reference evidence of a A3 week old ulcer,@ thus dating the infection about a week prior to the date of the alleged work injury.  Moreover, they argue, Ahad the employee suffered the kind of immediate pain she testified to experiencing after the [April 17, 2002] incident, she would have mentioned something to Mr. Faulkner right away,@ which she did not do.  Finally, the employer and insurer argue that Ms. Weets testified to having seen the employee several times limping at work and complaining of leg problems subsequent to her snowboarding accident and prior to April 18, 2002, noting that the compensation judge never made any express finding that the employee was credible.  We are not persuaded.

 

We acknowledge that nearly all of the employee=s medical records repeatedly reference the employee=s December 2001 snowboarding laceration as an original element in the chain of causal factors related to her increasingly disabling condition.  So, too, for that matter, is occasionally mentioned the irritation of that condition that the employee apparently experienced when she bumped her leg on the wooden bed frame at home.  However, the aggravating incidents at work in April and August of 2002 are also very frequently referenced in the medical records, and, under our statute, it is unnecessary to show that a work injury is the sole cause of an employee=s disability, only that it is Aan appreciable or substantial contributing cause.@  Roman v. Minneapolis St. Ry. Co., 268 Minn. 367, 380, 129 N.W.2d 550, 558, 23 W.C.D. 573, 592 (1964).  We acknowledge that PA Earsley=s treatment notes may not appear to contain detail expressly emphasizing the freshness of the employee=s injury, but neither do the employer and insurer offer any dispositive expert medical opinion implying that such detail would normally be expected in notes of treatment immediately after an aggravation of the sort here claimed or that the symptoms described in those notes are Anot indicative of a one-day-old infection.@  Similarly, that Dr. Liu=s notes for May 1, 2002, reference evidence of a A3 week old ulcer@ does not persuade us that the judge was wrong in permitting this round number to mean something fewer than exactly twenty-one days.   We agree that it might have been expected for the employee to complain to Mr. Faulkner more immediately of being kicked, but, given the employee=s evident ability to complete her shift, we do not find that lack of confrontation reason to reverse the judge=s ultimate decision as to causation.  Nor does Ms. Weets=s testimony to having seen the employee several times limping at work and complaining of leg problems necessarily outweigh other evidence, inferrable from the employee=s own testimony and from her medical records, that the employee=s snowboarding laceration was substantially healed prior to the April 18, 2002, incident.  See Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988) (assessment of a witness's credibility is the unique function of the trier of fact), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).^[6]

 

We conclude that there does exist substantial evidence in the medical record, particularly in the express opinions of Dr. Jahani and even of Dr. Mann, that the employee=s ongoing condition is causally related to her work activities on April 17 and August 6, 2002.  Accordingly, we affirm the compensation judge=s conclusion as to causation.  See  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence); Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

(c)  Application of Eide v. Whirlpool Seeger Corporation.  At Finding 14, the compensation judge found that the employee had experienced increased pain in her lower right leg when, not long after the date of her alleged April 17, 2002, work injury, she bumped her lower right leg on her wooden platform bed.  In that same finding, the judge asserted that A[a]n ordinary life activity that aggravates a work injury does not cut off liability for that work injury,@ citing Eide v. Whirlpool Seeger Corporation, 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).  The employer and insurer contend that the judge misapplied the cited rule in Eide by associating their causation defense primarily with the employee=s apparently post-April 2002 bed-bumping aggravation rather than with the pre-April 2002 snowboarding injury.  Their claim, they argue, is that both the April 2002 and the August 2002 claimed work injures were, like the bed injury, at best only insubstantial Abumps and bruises@ subsequent to the original and controlling snowboarding injury, which they contend is responsible for all of the employee=s ongoing pain and potential disability.  We conclude, however, that Finding 14 is reasonably intended only to rebut the suggestion that the bed bump caused symptoms subsequent to the April 2002 kick incident; the judge clearly contemplated, in Findings 6 and 7 and other elements of her decision, the effect and role of the snowboarding accident in the employee=s ongoing condition.  The judge did not misapply Eide v. Whirlpool Seeger Corporation.

 

2.  Wage Replacement

 

The compensation judge awarded the employee wage replacement benefits from April 29 to October 15, 2002, and from May 1, 2003, to the date of hearing.  The employer and insurer contend that, even aside from issues of primary liability and causation, the employee has failed to prove her entitlement to such benefits, having Afailed to prove that the claimed work injuries have prevented a return to unrestricted work activity@ and having Afailed to maintain a continuing and diligent search for work@ during the benefits periods at issue.  We are not persuaded.

 

(a)  Disability.  With regard to the disability issue, the employer and insurer argue that A[e]xtensive examination and diagnostic testing by the employee=s treating physicians revealed no objective findings to substantiate the employee=s disability claim,@ that a three-phase bone scan conducted by Dr. Boade revealed no abnormalities, and that Dr. Bell noted Ano cutaneous changes suggestive of an RSD.@  They argue further that Dr. Apostol found no evidence of significant or bony infectious process, that Dr. Kremer found Ano obvious contusion, bruising, or swelling of the lower right leg@ and instructed the employee to return to work, and that x-rays of the employee=s right tibia and fibula demonstrated no fracture or bony abnormality and no cause for pain.  They note also that Dr. Viola found normal muscle bulk, tone, and power throughout the lower extremities symmetrically, that an EMG/Peripheral Nerve Conduction Study performed by Dr. Viola was completely normal, and that Dr. Evans even indicated that it was alright for the employee to return to her original job at Schwan=s.  They argue further that Dr. Michener also encouraged the employee to return to work with restrictions, that Dr. Mann concluded that the employee had no limitation on her work activity, and that even Dr. Jahani provided no objective findings to substantiate the employee=s disability claim.

 

We acknowledge that objective findings to substantiate the employee=s disability claim are sparse and that there does exist expert medical opinion releasing the employee to work without restrictions during the periods at issue.  There is also, however, substantial evidence that the employee was credibly disabled from working during those same periods.  On May 1, 2002, at the beginning of the first of those periods, the employee=s physical infection and swelling were severe enough to warrant Dr. Liu=s hospitalization of the employee for in-patient treatment with intravenous antibiotics, and Dr. Liu subsequently restricted the employee from all work through at least May 13, 2002.  Moreover, although Dr. Apostol=s records appear to indicate that the employee was back working full time for the employer by June 1, 2002, there was no appeal from the compensation judge=s Finding 16 to the effect that A[t]he employee had off work slips from her health care providers for the time span April 29 through July 31, 2002.@  The employee apparently did return to a modified job with the employer for about a week at the end of July 2002, until reinjuring herself on August 6, 2002.  The employer and insurer have acknowledged an injury on that date, and, although his records for that date indicate in one place that his exam had revealed Ano obvious contusion, bruising, or swelling,@ Dr. Kremer formally diagnosed A[c]ontusion to the lower leg@ on that same date and issued restrictions limiting the employee to only sedentary desk work.    There is no evidence that those restrictions were lifted prior to being increased no later than August 21, 2002, when Dr. Apostol indicated that the employee was to do A[n]o work until seen at a pain clinic.@  At about this same time, neurologist Dr. Viola diagnosed Asignificant neuropathic pain,@ and, on September 3, 2002, Dr. Apostol expressly restricted the employee from all work for ten days.  Communications among the employee, her doctors, and the employer became confused for a period at this time, but within a month the employee had commenced work in her father=s business, for a period not here at issue.  By May 1, 2003, the employee had become Atotally disabled@ in the opinion of Dr. Jahani, such an opinion being, even unsupported by objective findings, sufficient grounds for concluding that the employee was totally restricted from work.  See Pommeranz v. State, Dep=t of Public Welfare, 261 N.W.2d 90, 91, 30 W.C.D. 174, 177 (Minn. 1977) (the truth of an expert opinion Aneed not be capable of demonstration@).  We conclude that it was not unreasonable for the compensation judge to conclude that the employee was sufficiently disabled during the periods at issue to qualify for wage replacement benefits.

 

(b)  Job Search.  With regard to the job search issue, the employer and insurer argue that, during the benefits periods at issue, light duty work was available with the employer and was offered to the employee but that the employee elected not to return to work as recommended by several of her doctors.  They argue further that the employee=s personnel file contains no slips from her doctors indicating that she had their support in remaining off work during those benefits periods.

 

We acknowledge that the employee evidently neither sought work nor accepted work offered by the employer during the periods for which she received the temporary total disability benefits here at issue.  However, it is also true, as our preceding discussions have demonstrated, that the employee was totally restricted from working by at least one of her doctors during most of the periods at issue.  During those fewer periods during which she may not have been subject to total restrictions, she was dealing with a condition ostensibly very painful to her and was not receiving any formal rehabilitation assistance.  The medical record supports, if minimally, a conclusion that the employee was physically unable to work during the entire period of benefits here at issue.  An award of temporary total disability benefits is affirmable where the employee is medically determined to be totally disabled from working.  See Sunderland v. Peterson Sheet Metal, slip op. (W.C.C.A. May 1, 1998).  Moreover, the reasonable diligence of a job search is to be viewed within the scope of assistance provided by the employer and insurer.  Okia v. David Herman Health Care Ctr., 38 W.C.D. 261 (W.C.C.A. 1985).  Given the employee=s mostly total restrictions from work during the periods at issue, together with the employer and insurer=s failure to provide rehabilitation assistance during those periods, it was not unreasonable in this case for the compensation judge to conclude that the virtual absence of a job search during the benefits periods at issue did not disqualify the employee from receiving temporary total disability benefits.

 

Concluding that it was not unreasonable for the compensation judge to find the employee subject to substantial disability during the benefits periods at issue and not disqualified from receiving benefits by a lack of job search during the benefits periods at issue, we affirm the compensation judge=s award of wage replacement benefits.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

3.  Reasonableness and Necessity of Treatment with Dr. Jahani

 

The compensation judge awarded payment for the employee=s treatment in Colorado with Dr. Jahani.  Citing factors for consideration in awarding payment for chiropractic expenses set forth in this court=s decision in Field-Seifert v. Goodhue County, slip op. (W.C.C.A. Mar. 5, 1990), the employer and insurer contend that, even assuming their primary liability for wage loss consequent to work injuries on April 17, 2002, and August 6, 2002, the employee=s expenses for Dr. Jahani=s osteopathic treatment were not reasonable and necessary.  They argue that, while he does discuss potential surgical intervention and prescription medication Arelating to an undefined neurological condition,@ Dr. Jahani provides no information as to Awhat problems the surgery and/or medication is supposed to remedy,@Ano plan of action with regard to the employee=s future treatment,@ and Ano neurological findings.@  Moreover, they argue, Dr. Jahani Anever performed an EMG, bone scan or any other diagnostic tests to support his diagnosis of RSD or any other neurological condition,@ and A[t]here is no indication that Dr. Jahani had access to or reviewed any of the employee=s prior medical providers@ or Athat he analyzed the employee=s EMG, bone test or other test results.@  Finally, they argue, the compensation judge=s award of payment for Dr. Jahani=s treatment is inconsistent with Athe fact that she rejected an RSD diagnosis.@  We are not persuaded.

 

We would note initially that the compensation judge did not Areject@ Dr. Jahani=s RSD diagnosis; she merely concluded, at Finding 35, that the evidence of record was Anot sufficient to reach a conclusion@ on that issue and that A[t]he employee=s possible claim for RSD under Minnesota Law remains open.@  Further, we would reiterate that Aa medical opinion . . . need not be capable of demonstration, and it is sufficient if it is probably true.@  Pommeranz, 261 N.W.2d at 91, 30 W.C.D. at 177.  Dr. Jahani=s records indicate that the employee did initially show improvement as a result of medication that Dr. Jahani prescribed, but the medication was too expensive for her to continue use of, and less expensive medication upset her stomach.  Dr. Jahani=s treatment was, therefore, briefly effective and reasonably promising of further effectiveness in the event that the employee=s care could be properly paid for.  In Findings 29, 31, 33, and 35, the compensation judge laid out the reasoning behind her decision to grant payment for Dr. Jahani=s primarily medication-based osteopathic treatment of the employee=s neurogenic pain, even while excluding payment for the employee=s chiropractic treatment with Dr. Evans and even while reserving judgement on Dr. Jahani=s diagnosis of RSD.  There was no motion to exclude Dr. Jahani=s opinions on the basis of foundation, and the judge=s decision to accept part of those opinions was not improper.  See Johnson v. L.S. Black Constr. Co., slip op. (W.C.C.A. Aug. 18, 1994) (a compensation judge is free to accept a portion of an expert's opinion, yet reject other portions of that expert's opinions), citing City of Minnetonka v. Carlson, 298 N.W.2d 763, 767 (Minn. 1980) (a factfinder generally "may accept all or only part of any witness' testimony").  Because the judge=s decision to accept those opinions was also a reasonable prerogative of the judge, we affirm the judge=s award of payment for Dr. Jahani=s treatment.  See Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73; Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

4.  Edquist Fees

 

The compensation judge found that the employee was temporarily and totally disabled from April 29 to July 31, 2002.  During this period, the employer had paid the employee short-term disability [STD] benefits in the amount of $2,977.82.^[7]  It is unclear from the record whether the STD benefits were paid by the employer or a third party.  The judge determined, however, that reimbursement to the payor of STD benefits is subject to Edquist attorney fees.  The employer and insurer contend that, even assuming again their primary liability for the claimed injuries on April 17 and August 6, 2002, the compensation judge had no substantial basis for granting payment of Edquist fees to the employee=s attorney for reimbursement awarded for payments made to the employee during the period of his disability.  They argue that the employer=s STD plan is governed by ERISA, 29 U.S.C. '' 1001-1461 (1988), that section 1144(a) of that federal statute expressly provides that ERISA preempts any state law relating to an ERISA-regulated benefits plan, and that therefore the attorney fee provisions of Minnesota workers= compensation law as interpreted by Edquist are inapplicable and Edquist fees should not have been allowed. In support of their position, the employer and insurer rely upon the Supreme Court=s decision in Ransom v. Ford Motor Co., 472 N.W.2d 134, 45  W.C.D. 45 (1991).  We are not persuaded.

 

In Edquist, the supreme court held that Minn. Stat. ' 176.081, subd. 1(a) (1984), imposed a lien for attorney fees against the total award to the employee, including the amount ordered reimbursed to an intervenor for benefits paid to the employee during a period in which he was entitled to receive workers= compensation benefits.  The supreme court has since interpreted Edquist to provide for a pro-rata withholding of attorney fees payable to the employee=s attorney from an intervenor=s reimbursement.  Mann v. Unity Medical Ctr., 442 N.W.2d 29, 41 W.C.D. 1171 (Minn. 1989).  The record contains no evidence as to the terms of the employer=s STD plan, and we are unable to conclude that the employer=s plan is governed either by ERISA or by the supreme court=s decision in Ransom.  This court may not consider documentation or assertions on appeal that were not part of the record before the compensation judge.  See Gollop v. Gollop, 389 N.W.2d 202, 38 W.C.D. 757 (Minn. 1986).  We therefore reject the employer and insurer=s argument that Edquist fees are inapplicable to this case.  Accordingly, under the facts presented here, the judge=s award of Edquist attorney fees is affirmed.