THOMAS O. MELARTIN, Employee/Appellant, v. MAVO SYS., INC., and CREDIT GEN. INS. CO. c/o MINN. INS. GUAR. ASS=N, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 5, 2005

 

No. WC04-328

 

HEADNOTES

 

CAUSATION - CONSEQUENTIAL INJURY.  Substantial evidence, including expert medical opinion, supports the compensation judge=s determination that the employee=s work-related carpal tunnel syndrome did not aggravate the employee=s preexisting alcoholism.

 

Affirmed.

 

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

Compensation Judge:  Jennifer Patterson

 

Attorneys:  Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Appellant.  Jan Monson and Susan M. Stepaniak, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that his preexisting alcoholism was not aggravated by his work injury and the compensation judge=s denial of the employee=s claim for temporary total disability benefits.  We affirm.

 

BACKGROUND

 

Thomas O. Melartin, the employee, sustained an admitted bilateral carpal tunnel injury, culminating on October 21, 1996, while working as an asbestos removal worker for Mavo Systems, Inc., the employer.  Carpal tunnel release surgery was performed by Dr. Elmer Salovich on February 20, 1997, on the left hand and on March 11, 1997, on the right hand.  Following the surgeries, Dr. Salovich released the employee to return to work, restricting him from strenuous or  repetitious use of his hands and wrists.  Dr. Mark Holm later examined the employee at the request of the employer and insurer.  Dr. Holm provided restrictions of no prolonged periods of repetitive pinching, gripping or grasping or the prolonged use of vibrating power tools, power sprayers or air wrenches.

 

The employee returned to light-duty work with the employer and did well initially.  Unfortunately, when he returned to asbestos removal duties, his symptoms recurred.  The employee ceased working for the employer in August 1997.  He then worked for ABM Janitorial Services from November 23, 1997, through June 6, 1998.

 

The parties disputed the employee=s entitlement to ongoing workers= compensation benefits, and hearings were held on August 13 and September 3, 1998.  In a Findings and Order issued on October 22, 1998, the compensation judge found the employee was permanently precluded from engaging in his pre-injury occupation as an asbestos abatement worker, and ordered the employer and insurer to provide rehabilitation services to the employee.

 

The employee began working with a qualified rehabilitation consultant (QRC), Thomas Saby, on December 7, 1998.   Following completion of vocational testing, a job search was initiated. The employee obtained three job offers between March and August 1999, but was unable to retain any of the jobs for any length of time.  Medically, on January 14, 1999, Dr. Salovich examined the employee, diagnosed recurrent carpal tunnel syndrome and recommended repeat surgery for worsening hand and wrist symptoms on the right.

 

The parties again disputed the employee=s entitlement to workers= compensation benefits, and various claims were heard by a compensation judge on December 1, 1999.  In a Findings and Order issued on January 19, 2000, the compensation judge approved the employee=s request to proceed with right wrist surgery.  The judge also found the employee failed to cooperate with rehabilitation and failed to conduct a reasonably diligent job search between February 3 and December 1, 1999.  In an unappealed finding, the compensation judge further found the employee had a twenty year history of chemical dependency on alcohol.  The judge recited the employee=s post-injury vocational history and QRC Saby=s testimony that the problem was not finding jobs within the employee=s restrictions, but the employee=s ability to retain the jobs he obtained.  The QRC agreed the employee was more likely to be able to hold onto a job if he had treatment for alcohol dependence. Based on this evidence, the compensation judge concluded the employee was not likely to benefit from ongoing vocational rehabilitation, and granted the employer and insurer=s request to suspend rehabilitation services.

 

On February 25, 2000, Dr. Salovich performed a right wrist carpal tunnel release with neurolysis of the median nerve.  The employee developed a serious infection in the surgical wound, requiring another surgery, performed by Dr. Salovich on March 9, 2000, to clean, debride and re-close the wound.  The employee was released to return to light-duty work on April 21, 2000, with restrictions of no strenuous or repetitive use of the right hand and arm and no heavy lifting with the right hand and arm.

 

 The employee has a long history of alcoholism and treatment for alcohol dependency.  He was treated for chemical dependency at the Courage Center in 1987 following which the employee stated he remained sober for a year.  The employee continued to drink alcohol without any lengthy period of sobriety from 1988 to 1999.  The employee voluntarily entered Burkwood Residence, an inpatient chemical dependency treatment facility in Burkhart, Wisconsin, on May 8, 2000.  The employee stated he began using alcohol at the age of 13 and that his alcohol use became a problem in 1986 or 1987.  In May 2000, Dr. Stephen Antonello, a licensed psychologist, evaluated the employee.  The doctor diagnosed major depression, chronic and severe without psychotic features, mixed anxiety disorder, generalized anxiety, phobia and social anxiety, alcohol abuse/dependence, and personality disorder.  The doctor recommended a psychiatric evaluation and antidepressant medication. The employee completed the Burkwood program and was discharged from the facility on August 11, 2000.

 

Without alcohol, the employee experienced feelings of extreme anxiety, social phobia, worthlessness, panic attacks and depression.  He was seen at the Crisis Intervention Center at Hennepin County Medical Center (HCMC) on September 14, September 18, October 5 and October 18, 2000, for treatment of depression and anxiety.  He was referred to Hennepin Faculty Associates (HFA) and a psychiatric intake was completed on October 20, 2000.  The employee reported a history of emotional problems following a serious head injury when he was eleven, which he had self-medicated with alcohol since his late teens.

 

  The employee began treating with a psychiatrist on the staff at HFA, Dr. Robert Werner, who first saw the employee on November 2, 2000.  Dr. Werner provided medication management, adjusting doses and changing medications to try to control the employee=s psychological and emotional symptoms.  Although the employee was encouraged from the beginning to attend psychotherapy, he was unable to sufficiently overcome his anxiety and social phobias to get to therapy until the end of March 2001.  The employee continued to treat with Dr. Werner and Lisa Legrand, a psychotherapist, through the date of the hearing on May 24, 2001.

 

The employee returned to Dr. Salovich for follow-up of his carpal tunnel syndrome on December 11, 2000, and February 28, 2001.  He reported continuing right hand symptoms, including numbness and increased stiffness, loss of sensitivity and aching with cold weather.  Dr. Salovich diagnosed bilateral carpal tunnel syndrome with persistent paresthesia, particularly in the right hand.  The employee was provided with Physiotherm splints, and was advised to avoid stress or strain and repetitive use of his hands.

 

On April 11, 2001, the employee was re-examined by Dr. Holm at the request of the employer and insurer.  Dr. Holm noted positive Tinel=s sign and slightly diminished sensation in the median nerve distribution of the right hand.  He diagnosed work-related carpal tunnel syndrome and recommended permanent restrictions to avoid repetitive firm pinching, gripping or grasping with either hand, avoid vibrating power tools especially with the right hand, and avoid working with his hands unprotected in temperatures below freezing.

 

Sometime after his discharge from Burkwood, the employee sought rehabilitation assistance but was informed his QRC could not provide help because the insurer had suspended rehabilitation benefits.  On March 8, 2001, the employee contacted the Vocational Rehabilitation Unit at the Department of Labor and Industry.  QRC Saby withdrew from the case and closed his file as of April 20, 2001.   Ms. Wilkman then completed a Rehabilitation Consultation Report on May 4, 2001, concluding the employee could be expected to return to gainful employment through vocational rehabilitation, based on Dr. Salovich=s report of work ability, and was eligible for rehabilitation services.

 

Lynn Hjelmeland, a rehabilitation counselor, completed a Vocational Assessment Report dated April 20, 2001, at the request of the employer and insurer.  She reported the employee had a 20-year history of significant struggle with alcoholism.  Ms. Hjelmeland concluded the employee was currently unemployable in the competitive labor market due to his significant psychological and emotional problems.

 

The employee filed a claim petition seeking temporary total disability benefits from August 12, 2000, and continuing, and re-initiation of vocational rehabilitation services.  The employer and insurer denied further liability, asserting the employee had failed to make a diligent search for work; that if the employee was totally disabled, it was due to unrelated emotional problems; and the employee was not likely to benefit from rehabilitation services due to his significant psychological problems.  The case was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order, served and filed July 3, 2001, the compensation judge found the employee=s emotional problems, for which he was undergoing active treatment, were the cause of his current inability to look for work and find and hold a job.  She further held the employee=s restrictions due to bilateral carpal tunnel syndrome were not a substantial contributing factor in his absence from the labor market, and denied the employee=s claim for temporary total disability benefits.  The compensation judge also denied rehabilitation services, concluding the employee was not currently able to benefit from rehabilitation services because of his significant emotional problems.  The Workers= Compensation Court of Appeals affirmed the compensation judge=s decision.  Melartin v. Mavo Systems, Inc., slip op. (W.C.C.A. March 21, 2002).

 

In July 2001, the employee entered the Vinland National Center Employment Program on referral from his then QRC.  As part of the program, Nancy Carlson, a Licensed Psychologist, performed a cognitive evaluation.  Ms. Carlson noted a history of traumatic brain injury and substance abuse, but noted the employee=s IQ was in the average range with strengths in reading and verbal skills but with non-verbal processing difficulties.  Ms. Carlson diagnosed a cognitive disorder.  She stated the employee was physically limited by his personal injury and had ongoing psychological difficulties that might impact the employee=s ability to maintain employment.  The employee was discharged from the Vinland Center because he was unable to complete the program due to medical appointments and missed communication.

 

The employee was admitted to Vinland Center, a chemical dependency treatment program for individuals with cognitive difficulties, in November 2002.  Ms. Carlson performed a neuropsychological evaluation in December 2002, and noted the admitting and discharge diagnosis from Vinland was alcohol dependence.  Her diagnosis remained cognitive disorder.  Ms. Carlson reported the employee admitted ongoing psychological difficulties including depression, anxiety, anger and paranoia.  Ms. Carlson opined these difficulties would affect the employee=s ability to function in the community and recommended psychotherapy.

 

The employee returned to see Dr. Salovich on September 29, 2003, and the doctor=s deposition was taken in September 2004.  The doctor testified the employee=s findings were then essentially the same as they were in 2001, but, subjectively, the doctor stated the employee=s complaints were worse.  Dr. Salovich recommended an EMG of the left arm which, the doctor concluded, showed borderline carpal tunnel syndrome with median neuropathy at the wrist without distal denervation changes.  The doctor testified that if the employee=s symptoms remained unchanged, he would consider another surgery.  The doctor stated the employee=s restrictions remained unchanged.

 

Dr. Keith Hartman, a psychiatrist, examined the employee on March 22, 2004, and his deposition was taken on August 26, 2004.  The doctor diagnosed severe, chronic alcoholism and anxiety disorder.  The doctor opined that based on the employee=s alcoholism, he was incapable of  sustained gainful employment.  Dr. Hartman opined the employee=s anxiety disorder was not serious enough to impede his ability to work.  The doctor opined there was no causal relationship between the employee=s carpal tunnel syndrome and his alcoholism.  Dr. Hartman stated that alcoholic men who are out of work tend to increase their alcohol consumption if they have been out of work for a couple of years.  The doctor stated the fact that such men are off work for an extended period of time triggers the increased alcohol consumption.

 

The employee filed a claim for wage loss benefits contending his chemical dependency was a compensable consequence of his October 21, 1996 personal injury.  Following a hearing, the compensation judge found preexisting alcoholism aggravated by a work injury does not constitute a compensable disability under Chapter 176, and found the employee failed to prove his 1996 work injury permanently aggravated his preexisting alcoholism.  The employee appeals.

 

DECISION

 

The employee concedes he was an alcoholic prior to his work injury.  He asserts, however, that he worked for the employer for many years before his injury and had a history of employment in a variety of fields including truck driving, auto mechanics and asbestos removal.  Thus, the employee argues, he was a functional alcoholic until his work injury which, it is undisputed, prevented him from returning to his job with the employer.  As the result of his job loss and inability to work, the employee contends his self-esteem was eroded, he became depressed and his chemical abuse increased resulting in total disability.  The employee asserts his personal injury was a substantial and contributing cause of an aggravation of his alcoholism and the resultant disability.  This conclusion, the employee contends, is supported by the opinion of Dr. Hartman that the employee=s inability to work triggered an increase in his alcohol consumption.  The employee argues, therefore, that the compensation judge=s denial of his claim is unsupported by substantial evidence and must be reversed.

 

It is well settled that injuries are compensable if the employment is a substantial contributing factor not only to the cause of the condition but also to the aggravation or acceleration of a preexisting condition.  Wallace v. Hanson Silo Co., 305 Minn. 395, 235 N.W.2d 363, 28 W.C.D. 79 (1975).  An employee need not prove that the employment was the sole cause, only a substantial contributing cause of the disability for which benefits are sought.  Swanson v. Medtronics, Inc., 443 N.W.2d 534, 536, 42 W.C.D. 91, 94-95 (Minn. 1989).

 

The range of compensable consequences from a personal injury is, in Minnesota, typically discussed under the rubric of Aconsequential injury.@  The concept of a consequential injury derives from a line of supreme court cases commencing with Eide v. Whirlpool Seeger Co., 260 Minn. 98, 109 N.W.2d 47, 21 W.C.D. 437 (1961).  In Eide, the court held that where a permanently weakened physical condition caused by a personal injury is aggravated by an employee=s subsequent normal physical activities to the extent of requiring additional medical treatment, such treatment is compensable, so long as it could be said that the additional care was Aa natural consequence flowing from the primary injury@ and not the result of Aunreasonable, negligent, dangerous, or abnormal activity on the part of the employee.@  Id. at 49-50, 21 W.C.D. at 441.  In Gerhardt v. Welch, 267 Minn. 206, 125 N.W.2d 721, 23 W.C.D. 108 (1964), the court, in again reviewing the range of compensable consequences of a personal injury, adopted the Adirect and natural consequence rule@ set forth at Larson, Workers= Compensation Law § 13.00, which stated:

 

When the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is a result of an independent intervening cause attributable to the claimant=s own negligence or misconduct.^[1]

 

Id. at 723, 23 W.C.D. at 112.  Thus, when the issue is the compensability of a claimed consequence of a personal injury, fault or negligence is a factor and the employee=s own intentional conduct may be an independent or intervening cause of the disability.

 

The question of what constitutes a natural consequence flowing from a personal injury involves issues of medical and/or legal causation.  The supreme court articulated the distinction between legal and medical causation in Jackson v. Red Owl Stores, Inc., 375 N.W.2d 13, 17-18, 38 W.C.D. 170, 177 (Minn. 1985).  Legal causation questions are decided under the Aarising out of@ and Acourse of employment@ tests of Minn. Stat. ' 176.011, subd. 16.  Medical causation, the court noted is a Adistinct legal concept that concerns the connection between the primary injury and a later condition . . . >how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment=.@  The court again quoted Professor Larson:

 

A distinction must be observed between causation rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment.  As to the primary injury, it has been shown that the >arising= test is a unique one quite unrelated to common-law concepts of legal cause and it will be shown later that the employee=s own contributory negligence is ordinarily not an intervening cause preventing initial compensability.  But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of >direct and natural results= and of claimant=s own conduct as an independent intervening cause.

 

Id. at 17-18, 38 W.C.D. at 177-78.

 

There is no evidence from any medical expert opining a causal relationship between the work injury and any aggravation of the employee=s chemical dependence.  Dr. Hartman testified there was no causal relationship between the employee=s carpal tunnel injury and his disease of alcoholism.  The doctor further stated the employee=s job efforts after he left the employer were thwarted by the progression of his alcoholism.  Dr. Hartman acknowledged that when an alcoholic is unemployed, the alcoholism can become more severe.  This statement does not, however, as the employee argues, compel an award of benefits in this case.

 

There is, at best, only an indirect link between the employee=s personal injury and his alcoholism.  Dr. Hartman denied any medical causation between the two conditions.  The only evidence supporting any causation whatever is Dr. Hartman=s statement that being off work for an extended period of time triggers an alcoholic to increase alcohol consumption.  To evaluate this statement, however, it is necessary to consider Dr. Hartman=s testimony as a whole.  Once the employee no longer had to go to work and meet an employer=s physical expectations during an eight-hour day, the doctor stated the employee was free to increase his alcohol use.  Dr. Hartman stated alcoholism is a progressive disease and the employee was nearly certain to increase his alcohol use as time passed and as situational variables allowed him to drink more.

 

Where a personal injury causes or aggravates some independent medical condition such as traumatic neurosis or depression, those conditions may be compensable if medical causation exists.^[2]  In the present case, the employee does not contend the personal injury was the medical cause of his worsened alcoholism.  Rather, the employee asserts his personal injury caused him to be unemployed and the unemployment worsened his alcoholism.  Thus, there is in this case an intervening non-medical factor, unemployment, separating the personal injury from the claimed compensable consequence.  The more remote the claimed consequence is from the personal injury, the less likely it is the claimed consequence is compensable.  Where the personal injury is not the medical cause of the claimed consequence, it is less likely the claimed consequence is compensable.^[3]

 

In Koenig v. Northern Insulation Prods., 358 N.W.2d 644, 37 W.C.D. 266 (Minn. 1984), the employee sustained an admitted back injury and sought payment of medical expenses incurred to treat an aggravation of a preexisting ulcer condition.  The employee=s claim was not that his ulcer condition was aggravated by his employment activities or from taking medication for his back injury.  Rather, Mr. Koenig claimed his ulcer condition was aggravated as a result of his experience with his QRC, the requirements for job search and reporting, the termination of his compensation benefits and the necessity for litigation.  The Supreme Court stated:

 

Dr. Miller, the only medical witness testifying about employee=s ulcer, expressed the opinion it had developed or had been aggravated because of stress [the] employee experienced in his intensive job search and his other efforts to comply with the directives of the placement specialists.  Dr. Miller did not say that the ulcer condition was caused by the back injury or aggravated by it, so the finding that the aggravation was secondary to the effects of the back injury has no support.  That being true, the real issue is whether the coverage of the Workers= Compensation Act extends to aggravation of the ulcer by stress related to the job placement efforts.  We have concluded that the statute requires the determination that this condition is not a compensable injury because it did not arise out of and in the course of employment.

 

Id. at 647, 37 W.C.D. at 270.

 

The present case is factually similar to Koenig.  Substantial evidence supports the compensation judge=s decision that the personal injury did not aggravate the employee=s preexisting alcoholism.  That decision must, therefore, be affirmed.^[4]  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).