DIANE L. MANKOWSKI, Employee, v. ST. PAUL COS., INC., and CONSTITUTION STATE SERV. CO., Employer-Insurer/Appellants, and FAIRVIEW HEALTH SERVS., HARTFORD LIFE SUBROGATE/INTERVENTION DEP=T, and FRANK Y. WEI, M.D., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 22, 2005

 

No. WC05-178

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY; GILLETTE INJURY - DATE OF INJURY; PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where the only work injury alleged by the employee was a Gillette-type injury on September 27, 2003, where there was expert opinion that the employee was subject to an overuse injury in her right upper extremity and that that condition was work-related, and where in her memorandum the judge had identified as an Aoveruse syndrome@ the more general work-related condition referenced in her findings, the compensation judge=s finding that the employee had sustained a work-related Aright upper extremity condition@ was not clearly erroneous and unsupported by substantial evidence and did not warrant remand for additional findings as to the specific date and nature of the injury.

 

NOTICE OF INJURY - GILLETTE INJURY; STATUTES CONSTRUED - MINN. STAT. ' 176.141.  Where the judge concluded generally that the employee had given timely notice of her injury but specified no date of that notice and offered no factual support or reasoning for her conclusion, where the judge did not make any specific finding as to whether the timely notice that she found was actual notice or inquiry notice, and where, in the event that the timely notice that she found was within 180 rather than 30 days of the injury, the judge did not address the factors specified in Minn. Stat. ' 176.141 that permit such delayed notice, the matter of notice of injury was reversed and remanded for reconsideration and more specific findings.

 

INTERVENORS.  Where issues at hearing had expressly included the employer=s own intervention interest for short-term disability benefits paid to the employee during the period for which she had claimed temporary total disability benefits, and where the judge=s findings and order neither listed the employer/intervenor among intervenors on the caption page nor contained any specific findings relating specifically to that party=s intervention interest, the matter was remanded to the compensation judge for findings clarifying the employer/intervenor=s particular intervention interest, notwithstanding the fact that the judge=s award of benefits to the employee had been made Asubject to attorney fees and the intervenors= claim for reimbursement.@

 

Affirmed in part, reversed in part, and remanded.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys: Donald W. Kohler, White Bear Lake, MN, for the Respondent.  Jeremiah W. Sisk and Dianne E. Walsh, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, St. Paul, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's finding of a compensable work injury and her award of temporary total disability and medical benefits.  We affirm the judge=s finding of a work injury, but we remand for reconsideration and additional findings on the issues of notice of injury and the intervention interest of St. Paul Companies.

 

BACKGROUND

 

In 1991, Diane Mankowski [the employee] sustained a head injury and traumatic nerve damage to both of her arms when she was run over in an automobile accident.  The injury to her left brachial plexus resulted in an inability to use her left arm.  On December 12, 1992, the employee sustained also an admitted work injury to her right hand and wrist in the course of her work as a clerical assistant with St. Paul Companies [the employer].  In the months immediately following this injury, the employee was treated at United Occupational Health, and she was eventually released to return to her regular duties as of March 14, 1993.  On March 25, 1993, Dr. Vijay Eyunni diagnosed wrist pain and concluded that the employee had reached maximum medical improvement [MMI] without sustaining any permanent partial disability.  In subsequent years, the employee continued to work for the employer in various capacities, including file clerk, secretary, central desk clerk, data entry clerk, assistant specialist in transportation, and assistant underwriting specialist.  On February 20, 1996, she was involved in another car accident, in which she injured the right side of her neck and hit her head, but she experienced no lasting physical effects.

 

Eventually, in 2002, the employee moved into a job in the assigned risk department of the employer, where her clerical duties - - including picking up, sorting, and delivering the mail, answering phone calls, pulling files, and pulling staples one-handed - - increased.  In January of 2003, the assigned risk department moved from the first floor to the sixth floor, and the employee had, in addition to her regular job duties, to spend more than two weeks packing up and moving all of the files and manuals.  Then, in February 2003, the department moved again, and the employee had to repeat the extra moving tasks.  Subsequent to this move, the employee had constant numbness in her little finger and thumb, while the volume of work increased into April 2003, sometimes requiring her, for instance, to spend more than two hours per shift pulling staples.

 

On May 27, 2003, the employee went to Fairview Lakes Urgent Care with complaints of back pain radiating into the back of her thigh, and she returned for treatment the following day with even worsening low back pain.  On June 2, 2003, she saw her primary care physician, Dr. Nancy Alexis, to whom she complained of tightness in her neck as well as back pain, and Dr. Alexis referred her for physical therapy, which the employee did not commence until August 18, 2003.  By September 23, 2003, the employee was reporting some improvement, although she was under a great deal of stress at work, where they were short of staff.  The employee went off work four days later, on September 27, 2003, on which date she was forty-four years old and was earning a weekly wage of $609.49.  On October 6, 2003, she obtained from Dr. Alexis a statement that she could not work, so that she could apply for temporary disability.  She asked Dr. Alexis to complete a form for short-term disability benefits because workers= compensation would not be enough for her to live on.  The employee subsequently began receiving short-term disability benefits.

 

At some point thereafter, the employer requested an abbreviated functional capacities evaluation [FCE], to determine the employee=s abilities for the purpose of finding her a job.  The test was conducted by physical therapist Daniel Zahn on November 25, 2003.  On December 4, 2003, essentially in keeping with that evaluation, Dr. Alexis released the employee to return to work restricted from lifting over five pounds, from pushing or pulling over twenty-five pounds, and from doing any overhead reaching or working with gripping or vibrating tools, and she referred the employee to physiatrist Dr. Frank Wei.  Two weeks later, on December 18, 2003, Dr. Alexis diagnosed chronic right upper back and arm pain secondary to hypertonicity, right elbow pain with possible tendonitis or ulnar neuropathy, and chronic back pain, indicating that the employee Aapparently has been given time off work until just after Christmas.@

 

On December 21, 2003, in a letter to the employee=s attorney, Dr. Alexis noted that the employee had been right upper extremity dependent since she suffered post-traumatic paralysis of her left arm in 1991 and that, according to the employee=s history, Ashe did not start to develop the chronic pain and neurologic symptoms that now plague her until she had a substantial increase in her daily workload and, therefore, the daily stress on this single extremity.@  Dr. Alexis confirmed that it was her opinion that the employee=s Awork duties as I understand them have been a substantial contributing factor in the development of her chronic and unremitting pain of the right arm.@

 

The employee apparently continued to receive short-term disability benefits from the employer through January 2, 2004.^[1]  Hartford Life began paying long-term disability benefits to the employee on December 26, 2003.  On January 5, 2004, the employee filed a claim petition, alleging entitlement to temporary total disability benefits continuing from September 27, 2003, consequent to a work injury on that same date as well as to her work injury on December 11, 1992.

 

The employee saw Dr. Wei on January 28, 2004.  After obtaining a detailed history of the employee=s job duties and performing a physical examination, Dr. Wei diagnosed a possible ulnar nerve irritation of the right arm versus cervical radiculopathy, lateral epicondylitis, and secondary myofascial pain of her right neck and shoulder girdle.  He administered an injection into the employee=s right lateral epicondyl, prescribed physical therapy, and referred the employee for an EMG.  He recommended sedentary work, advising her to avoid repetitive pinching, firm gripping or grasping, or lifting more than ten pounds.  Dr. Wei opined that A[c]learly, given her disability with her left arm, she has developed an overuse injury in the right and has developed these problems in the right upper limb as a consequence of her work activities.@  He did not think that she would be able to go back to a job requiring a lot of repetitive keying or lifting.

 

On March 12, 2004, the employee returned to see Dr. Wei following her right upper extremity EMG, which had showed moderate carpal tunnel syndrome.  Dr. Wei noted that the EMG did not show evidence of ulnar nerve irritation but that the employee continued to have a Atwanging or twinging@ sensation around the elbow, causing radiation and numbness into her ring and small finger.  The employee also noted numbness in the right thumb.  Dr. Wei recommended continued hand therapy and a wrist splint for night wear.

 

On March 29, 2004, the employee was examined for the employer and insurer by neurologist Dr. Joel Gedan.  Following an interview and physical examination of the employee and review of her medical records, Dr. Gedan concluded in part that the employee had symptoms and complaints of overuse syndrome but no specific injury to her right arm, upper back, or shoulder.  Although he concluded that her work activities had initially been a substantial contributing factor in her overuse complaints, Dr. Gedan found it difficult to explain the employee=s persistent subjective complaints six months after removal from the offending activities at work.  He released her to work restricted from keyboarding more than one hour at a time, from lifting more than ten pounds, from repetitive lifting or reaching with her right upper extremity, and from repetitive gripping, flexion, or extension of the wrist and elbow.  He indicated that A[t]hese are likely permanent restrictions related to her subjective complaints.@  It was Dr. Gedan=s opinion that the employee had reached MMI with no permanent partial disability, that her treatment with Dr. Alexis and Dr. Wei had been reasonable and necessary, but that her physical therapy had been excessive.  On May 3, 2004, Dr. Gedan wrote an addendum to his report, indicating that he found no evidence of injury, only recurrent symptoms related to repetitive activity and preferential use, and that he recommended that she modify or discontinue her repetitive activities.

 

The matter came on for hearing on December 2, 2004.  At the hearing, the parties stipulated that the employee=s December 11, 1992, work injury was no longer at issue.  Issues at hearing included the following: (1) whether the employee had sustained and given proper notice of a Gillette-type injury^[2] on September 27, 2003; (2) if so, the nature and extent of that injury; (3) the employee=s entitlement to temporary total disability benefits from September 27, 2003, through August 5, 2004; (4) the employee=s entitlement to payment of medical bills incurred before August 5, 2004; (5) the right to reimbursement of two intervening medical providers and an intervening long-term disability benefits provider; and (6) the employer=s entitlement to intervention and reimbursement of the short-term disability benefits that it had paid to the employee during the period of claimed disability.  At the hearing, the employee testified in part that she was continuing to receive long-term disability benefits.

 

On December 6, 2004, pursuant to stipulation of the parties at hearing, the employer was served post-hearing notice of its right to intervene regarding the short-term disability benefits that it had paid, and on January 7, 2005, the parties filed a signed Stipulation of Intervention, acknowledging the sufficiency of the employer=s intervention interest.

 

In findings and order filed April 4, 2005, the compensation judge concluded in part that the employee had shown Athat her work activities were a substantial contributing cause of her right upper extremity condition,@ that A[s]he gave the employer timely notice of the injury,@ that she was therefore entitled to temporary total disability benefits from September 27, 2003, through March 17, 2004, her job search having been insufficient from March 18 through August 5, 2004, and that the employee=s medical care, including Dr. Wei=s treatment in early 2004 and the employee=s physical therapy from October 1, 2003, through May 10, 2004, were Areasonable, necessary and causally related to the work injury.@  The judge made no specific findings, however, as to the specific intervention interest of the employer regarding the short-term disability benefits that it had paid to the employee, although she did hold in Order 1 of her decision that A[t]he employer and insurer shall pay temporary total disability benefits . . . subject to attorney fees and the intervenors= claim for reimbursement.@

 

The employer and insurer have appealed on grounds that the judge erred in finding that the employee=s work activities substantially contributed to her disability, that the judge erred in not making sufficiently specific findings as to the nature, duration, and date of such an injury, and that substantial evidence does not support the judge=s finding that the employee gave proper notice of such an injury.  Further, in that the judge made no specific findings in her decision as to the employer=s particular intervention interest, the employer and insurer question A[w]hether clarification is necessary regarding St. Paul Companies= intervention interest for wage continuation benefits paid to the employee during her claimed periods of temporary total from October 10, 2003 through January 2, 2004.@

 

DECISION

 

1.  Date and Nature of Injury

 

The employer and insurer first contend that the employee failed to establish that her work activities substantially contributed to her disability.  They argue that, although both Dr. Wei and Dr. Alexis report that the employee was suffering from an overuse injury to her right upper extremity, Dr. Wei failed to give an opinion as to whether the employee=s work activities substantially contributed to her current disability, and Dr. Alexis failed to specify what work duties contributed to the employee=s right arm pain.  We disagree.

 

As noted by the compensation judge, Dr. Wei obtained a detailed history of the employee=s job duties at the time of the employee=s visit on January 28, 2004.  He placed restrictions on the employee=s use of her right upper extremity and did not think that she would be able to return to her previous type of work.  As to causation, Dr. Wei stated that A[c]learly, given her disability with her left arm, she has developed an overuse injury in the right and has developed these problems in the right upper limb as a consequence of her work activities.@  Nor was Dr. Alexis required to specify what particular work activities contributed to the employee=s right arm pain.  It is apparent from the doctor=s records that she was generally aware of the employee=s work activities when, on December 21, 2003, she reported to the employee=s attorney that the employee=s work duties Ahave been a substantial contributing factor in the development of her chronic and unremitting pain of the right arm.@  As there exists substantial evidence in the record supporting it, we affirm the judge=s finding that the employee=s work activities were a substantial contributing cause of her right upper extremity condition.

 

The employer and insurer next argue that the judge failed to issue sufficiently specific findings as to the nature of the employee=s injury.  They argue that the employee failed to prove that she sustained a work-related injury to her neck, mid back, or lower back and that the judge should have issued a finding to that effect.  Moreover, in Finding 18 the judge noted a Aright upper extremity condition,@ but she failed to specify the precise nature of that condition.  We believe that the judge=s findings are sufficiently specific as to the nature of the employee=s injury.  While the employee had asserted in her claim petition that she had sustained neck, upper back, and right upper extremity injuries, at the time of trial the judge could reasonably have concluded that the only injury being claimed related to her right arm.  Nor had the employee ever asserted a claim based on a  low back injury.  And while her Finding 18 may reference only a Aright upper extremity condition,@ the judge=s memorandum clearly identifies the employee=s condition as a right upper extremity Aoveruse syndrome.@  Given the medical evidence presented in the case, the judge has sufficiently identified the nature of the employee=s injury.

 

The employer and insurer also argue that the judge erred in failing to properly designate a date of injury for the alleged Gillette injury.  Citing as authority Schnurrer v. Hoerner-Waldorf, 345 N.W.2d 230, 36 W.C.D. 504 (Minn. 1984), the employer and insurer assert that the facts here presented would support a date of injury of May 27, 2003, if not earlier.  We disagree.  As identified in her Findings and Order, the first issue before the judge was whether the employee sustained a Gillette injury on September 27, 2003.  No other date of injury was identified or claimed by the employee.  The judge found that the employee sustained an injury and awarded benefits commencing on the date alleged, September 27, 2003.  We find no ambiguity in the judge=s failure to specify an exact date of injury in Finding 18.  As the only injury date claimed was September 27, 2003, we infer that the judge=s finding of a work injury was a finding of a work injury on September 27, 2003.

 

2.  Notice of Injury

 

At Finding 18, the judge concluded generally that A[the employee] gave the employer timely notice of [her] injury.@  The judge=s decision, however, offers no factual support or reasoning for that conclusion.  The employer and insurer contend the employee failed to give notice of her injury until November 20, 2003, and that they were prejudiced by the late notice.  We agree that a remand for reconsideration and additional findings is necessary.

 

Generally speaking, the notice statute requires that, in order for compensation to be due, the employer must receive notice of an injury within thirty days of the injury or, in the alternative, within one hundred eighty days of the injury so long as the employee can show that the delay was Adue to the employee=s . . . mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer.@  Minn. Stat. ' 176.141.  In this case, the judge did not specify a date on which the employer first received notice of the employee=s injury, so there is no way for this court to review the judge=s finding that the notice was timely.  Nor does the judge make any specific finding as to whether the employer had actual notice or was reasonably on inquiry that the employee=s disability was work-related.  If notice was not given within thirty days of September 27, 2003, the judge must address also the factors in the statute permitting notice of injury to be given between thirty and one hundred eighty days following the injury.  Therefore, we remand this matter to the compensation judge for reconsideration of the notice issue and for more specific findings, based on the existing record.  Either party may appeal to this court from the judge=s findings on remand.

 

3.  The Employer=s Intervention Interest

 

The employer has evidently paid short-term disability benefits to the employee for a portion of the period for which the judge awarded temporary total disability benefits.  The employer has now properly intervened for reimbursement of those benefits, apparently covering the period from October 10, 2003, through January 2, 2004.^[3]  The judge, however, did not issue any findings addressing the employer=s intervention claim, and the employer and insurer request additional findings clarifying the employer=s interest.  We agree that additional findings on the issue are appropriate.

 

As previously noted, we are unable to find a hard copy of the employer=s intervention documents.  Assuming that the dates set forth in the employer and insurer=s appellate brief are correct, there appears to be a brief period - - December 26, 2003, through January 2, 2004 - - where the employee was paid both short-term and long-term disability benefits.  We note also that an issue of Edquist fees^[4] may arise under these facts.  We remand the issue of the employer=s intervention interest to the judge for additional findings.