MANUELITA ROMERO, Employee, v. ST. PAUL RAMSEY MED. CTR., SELF-INSURED/COMPCOST, Employer/Appellant, and MN DEP=T OF HUMAN SERVS. and METROPOLITAN HAND SURGERY ASSOCS., Intervenors.

 

 

WORKERS= COMPENSATION COURT OF APPEALS

FEBRUARY 18, 2005

 

No. WC04-275

 

HEADNOTES

 

TEMPORARY TOTAL DISABILITY.  Where the award of temporary total disability benefits was due to an error in identifying the disabling surgery as being related to the work injury, the award is reversed.

 

Reversed and vacated in part.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys:  Mark B. Sarenpa, Minneapolis, MN, for the Respondent.  Eugene J. Flick, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Appellant.

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the compensation judge=s award of temporary total disability benefits.  We reverse the award of benefits.

 

BACKGROUND

 

The employee, Manuelita Romero, sustained an admitted work injury to her right upper extremity on August 28, 1997, while working as a nursing assistant for St. Paul Ramsey Medical Center, the employer.  The injury happened when a male patient grabbed her right arm and twisted it.

 

In 2003, the employee filed a claim petition, alleging that she had also injured her left upper extremity in the August 28, 1997 incident and that, as a result of the injury, she had sustained wage loss and medical expenses.  The claim petition was heard by a compensation judge on June 11, 2004.  In Findings and Order of August 31, 2004, the compensation judge determined that the employee had not shown by a preponderance of the evidence that she had sustained an injury to the  left upper extremity related to the work injury of August 28, 1997, or to her work activity for the employer.  The employee did not appeal this determination.

 

The employee has had a number of surgeries to both arms since 1997:

1.         January 6, 1998 - - radial nerve decompression and carpal tunnel release - right arm.

2.         June 1, 1999 - - epicondylectomy - right arm.

3.         August 31, 1999 - - carpal tunnel release - left arm.

4.         June 1, 2000 - - lateral epicondylectomy - left arm.

5.         August 28, 2002 - - epicondylectomy - left arm.

6.         June 11, 2003 - - exploration and decompression posterior interosseous nerve - right arm.

 

In Finding 9, the compensation judge found, AShe had a left epicondylectomy on August 28, 2002, with Dr. Falconer.@  In Finding 10, the compensation judge stated, AThe employee was disabled from working for her right elbow surgery from August 24, 2002 through November 11, 2002 and is entitled to temporary total disability for this period of time.@  Order 2 awarded temporary total disability benefits to the employee for that period of time.  The employer and insurer appeal.

 

DECISION

 

On appeal, the employer and insurer dispute the award of temporary total disability benefits, noting that the period of awarded disability is related to the employee=s surgery on August 28, 2002, to the left arm and that the compensation judge had found the employee=s left arm problems not to be work related.  Any disability from that surgery would not be compensable, they argue.  We agree.

 

The employee contends in her brief that the compensation judge found that the employee had permanent restrictions for her right arm and the compensation judge might have concluded that these restrictions, in combination with the surgery, disabled the employee.  In the alternative, the employee argues that the compensation judge may have intended to award disability for the June 2003 surgery which was for her right arm.  We find no merit in these contentions.

 

We conclude that the compensation judge simply erred in Finding 10 when she identified the August 2002 surgery as being to the right elbow when the medical records clearly indicate the surgery was for the left arm.  The award of temporary total disability benefits followed from that error and is not affirmable.

 

We vacate that portion of Finding 10 which identifies the August 28, 2002 surgery as being to the right elbow and we reverse the award of temporary total disability benefits to the employee for the period August 24, 2002 through November 11, 2002.