DALENE P. BOLLIN WALSH, Employee/Appellant, v. DASSEL LAKESIDE CMTY. HOME and VIRGINIA SURETY/CAMBRIDGE INTEGRATED SERVS., Employer-Insurer/Cross-Appellants, and DASSEL LAKESIDE CMTY. HOME and FARM BUREAU MUT. INS. CO., Employer-Insurer/Cross-Appellants, and HUTCHINSON AREA HEALTH CARE, BLUE CROSS & BLUE SHIELD, ABBOTT NORTHWESTERN HOSP., and NEUROSURGICAL ASSOCS., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 21, 2005

 

No. WC04-335

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY.  Substantial evidence, including well-founded medical expert opinion, supports the compensation judge=s determination that the employee sustained a Gillette injury to the neck on October 6, 2003.

 

CAUSATION; PRACTICE & PROCEDURE - REMAND  Where the compensation judge=s findings regarding the February 15, 2000, injury appear contradictory and inconsistent with medical expert opinion, the case is remanded for reconsideration of the issues of the nature and extent of the February 2000 injury, including any contribution and/or apportionment for which the insurer on that injury may be liable.

 

REIMBURSEMENT; PRACTICE & PROCEDURE - REMAND.  Where this court is unable to determine from the evidence submitted at the hearing the amount of benefits paid by Cambridge under a temporary order or the periods for which such benefits were paid, and where a pending claim for benefits by the employee and Cambridge=s claim for contribution and/or reimbursement involve issues of apportionment not decided by the compensation judge, this court is unable to resolve the issues raised on appeal by the parties, and the case is remanded for additional findings.

 

Affirmed in part and remanded in part.

 

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

Compensation Judge: Carol A. Eckersen

 

Attorneys:  Michael J. Patera, Buffalo, MN, for the Appellant.  Gina M. Uhrbom, Brown & Carlson, Minneapolis, MN, for Cross-Appellants Dassel Lakeside/Cambridge Integrated Servs.  Matthew P. Bandt and Thomas C. Cummings, Jardine, Logan & O=Brien, Lake Elmo, MN, for Cross-Appellants Dassel Lakeside/Farm Bureau.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals the compensation judge=s finding that the October 6, 2003, personal injury was a controlling event.  The employer and Farm Bureau Mutual Insurance Company appeal the compensation judge=s finding that the employee sustained a personal injury to her cervical spine culminating on October 6, 2003 and the judge=s finding regarding the nature of the February 15, 2000 personal injury.  The employer and Virginia Surety/Cambridge Integrated Services appeal the compensation judge=s order regarding reimbursement.

 

BACKGROUND

 

On February 15, 2000, Diane P. Bollin Walsh, the employee, sustained a personal injury to her thumbs while working as a cook for Dassel Lakeside Community Home, the employer.  The employer was then insured by Virginia Surety/Cambridge Integrated Services.  The employee=s weekly wage on that date was $492.06.  The employer and Cambridge admitted liability for the employee=s personal injury.

 

The employee saw Dr. David Olson on February 29, 2000.  She complained of  progressive pain in her right thumb and wrist over the prior two weeks that she attributed to repetitive motion at work, especially using an ice cream scoop for serving food.  Dr. Olson diagnosed right wrist tendinitis, prescribed physical therapy and a wrist splint and restricted the employee to no repetitive motion or grasping with her right hand.  By March 24, 2000, Dr. Olson noted the wrist component had largely resolved, but the employee continued to have right thumb irritation and pain.  On April 7, 2000, Dr. Olson again noted the employee=s right wrist tendinitis had resolved, but noted the employee also had extensor tendinitis that was resolving with complete rest.  On May 12, 2000, Trish Olson, a physicians assistant, noted the employee=s right thumb tendinitis was quite severe and she was displaying early tendinitis in the left thumb.  Ms. Olson referred the employee for chiropractic treatment.  From May 15 through August 14, 2000, the employee underwent 23 chiropractic treatments with Seth Isaacson, D.C.

 

On June 1, 2002, the employee sustained a second personal injury arising out of her employment with the employer in the nature of bilateral carpal tunnel syndrome.  The employer was then insured by Farm Bureau Mutual Insurance Company.  The employee=s weekly wage was $586.94.  On May 3, 2003, the employee sustained an injury to her left shoulder arising out of her employment with the employer which continued to be insured by Farm Bureau.  The employee=s wage on this date was $455.55.  The employer and Farm Bureau admit liability for these two personal injuries.^[1]

 

In May 2003, the employee underwent a Functional Capacity Evaluation that evidenced physical limitations consistent with weakness in the employee=s neck, arms, wrists and grip strength.  The evaluator concluded the employee=s job as a lead cook did not match her physical abilities.  Based upon the employee=s restrictions, the employer concluded she could not continue the cooking job and, thereafter, she apparently worked two days a week.

 

An MRI scan of the cervical spine on August 27, 2003, showed moderate to severe stenosis at C4-5, mild stenosis at C3-4 and C5-6, and right and left-sided disc protrusions at C3-4, C4-5 and C5-6 with likely nerve root compression at C4-5 bilaterally.  On October 3, 2003, Dr. Mahmoud G. Nagib, a neurosurgeon, examined the employee.  The employee complained of constant numbness and pain involving primarily the left upper extremity and neck.  The doctor diagnosed a left median nerve dysfunction consistent with a left-sided carpal tunnel syndrome and recommended a carpal tunnel release.  If the results were favorable, the doctor recommended a later right carpal tunnel release.  Based upon the MRI scan, Dr. Nagib felt the employee might have a C5 nerve root entrapment that could require surgery.  Dr. Nagib performed left and right carpal tunnel releases which, the employee stated, relieved her hand symptoms.  A cervical myelogram and CT scan in December 2003 showed advanced C4-5 spondylosis with spinal canal stenosis and an osteophytic bar and spring producing mild left canal stenosis at C5-6.  Dr. Nagib performed an anterior cervical discectomy and fusion on February 10, 2004.

 

Dr. Paul Wicklund examined the employee at the request of Farm Bureau in July 2003 and prepared a medical report.  The doctor concluded the employee did not sustain any permanent injury on February 15, 2000, June 1, 2002, or May 3, 2003.  On those dates, Dr. Wicklund concluded the employee had an over use syndrome of her forearms which lasted six to eight weeks.  The doctor stated the employee required no restrictions.

 

Dr. David P. Falconer examined the employee in September 2003 at the request of Cambridge.  The doctor diagnosed bilateral carpal metacarpal joint arthritis, early carpal tunnel syndrome and shoulder impingement syndrome or subacrominal bursitis/tendinitis.  The doctor noted the employee developed the onset of hand pain in February 2000 which was inaccurately diagnosed as tendinitis.  The doctor stated thumb joint arthritis was a natural degenerative process but it was aggravated by the employee=s job duties which required repetitive heavy scooping, thumb pressure and pinch activities.  Dr. Falconer opined the employee=s hand complaints were permanent and progressive and disagreed with Dr. Wicklund=s opinion that the injuries were temporary.  Dr. Falconer opined the employee sustained additional injuries in June 2002 and May 2003 in the nature of a carpal tunnel syndrome and impingement syndrome.  Dr. Falconer stated the employee needed hand and wrist activity restrictions regarding repetitive gripping and pinching.

 

In August 2004, Dr. Wicklund reviewed additional medical records including those of Dr. Nagib and the report of Dr. Falconer.  In a second medical report, the doctor again opined the employee did not sustain a work injury to her shoulders or her cervical spine.  The doctor apportioned liability for the employee=s carpal tunnel syndrome, one-third each to the February 2000 injury and the June 1, 2002, injury, and one-third to the culmination of the symptoms that resulted in surgery in 2003.

 

The employee filed a claim for medical expenses alleging personal injuries in February 2000, June 2002, May 2003, and a Gillette-type^[2] personal injury on October 6, 2003.  Cambridge filed a petition to discontinue benefits^[3] and a petition for contribution against Farm Bureau.  Following a hearing, the compensation judge found the employee sustained a permanent, bilateral thumb injury on February 15, 2000, resulting in permanent restrictions on her employment activities.  The judge, however, found this injury was not a substantial contributing cause of the employee=s disability or need for medical treatment after August 15, 2000.  The judge found the employee sustained an injury on June 1, 2002, in the nature of bilateral carpal tunnel syndrome resulting in permanent employment restrictions, and found the employee sustained an injury to her shoulder on May 3, 2003, also resulting in permanent employment restrictions.  The compensation judge also found the employee sustained a Gillette personal injury on October 6, 2003, to her cervical spine.  The compensation judge further found the October 6, 2003, injury was the controlling event, and ordered the employer and Farm Bureau to pay temporary total disability benefits to the employee from January 16, 2004, through the date of the  hearing and continuing.  Finally, the compensation judge found Cambridge paid temporary total disability benefits to the employee from January 16 through September 14, 2004, totaling $20,047.67.  The compensation judge ordered Farm Bureau to reimburse this amount to Cambridge together with the medical expenses paid by Cambridge from August 11, 2003, through July 14, 2004.

 

Following the hearing, Michael J. Patera, the employee=s attorney, wrote the compensation judge stating that Cambridge had paid temporary partial disability benefits to his client from at least May 3 to October 2003, when the benefits were changed to temporary total disability benefits.  Mr. Patera requested the court apply Kirchner v. County of Anoka, 410 N.W.2d 825, 40 W.C.D. 186 (Minn. 1987) and requested the court issue amended findings.  The compensation judge issued Amended Findings and Order on December 21, 2004, in which the judge amended the amount of a payment to an intervenor but declined to otherwise amend the prior findings.  The employee appealed and Cambridge and Farm Bureau filed cross-appeals.

 

DECISION

 

1.  October 6, 2003 Personal Injury

 

The employer and Farm Bureau appeal the compensation judge=s finding that the employee sustained a personal injury to her cervical spine culminating on October 6, 2003.  They contend the employee=s testimony, the medical records and the expert opinions do not support this finding.  Although Dr. Nagib opined the employee=s cervical spondylosis was work related, Farm Bureau contends his opinion lacks foundation because there is no evidence the doctor was aware of the employee=s work duties.  Accordingly, Farm Bureau asks this court to reverse the compensation judge=s finding that the employee sustained a personal injury to her neck on October 6, 2003.

 

In January 2004, Mr. Patera provided to Dr. Nagib copies of the medical reports of Drs. Falconer and Wicklund.  Dr. Wicklund, in his July 2003 report (Resp. Farm Bureau Exh. A), refers in some detail to the employee=s duties as a lead cook.  The doctor noted the employee made pancakes for the residents in the morning which required repetitive use of her right arm and the use of repetitive motions in preparing food such as using an ice cream scoop.  Dr. Wicklund further recorded the employer moved to a new kitchen in November 2001, and in April 2002 changed the serving procedures so that the employee had to use her hands more to dish up food and move trays.  The employee described the repetitive wrist and upper hand motion used in preparing salads to Dr. Wicklund, and the doctor reported that on May 3, 2003, the employee stated she had a sudden electric-type pain into her left shoulder while serving breakfast and reaching out with her left hand.  Dr. Falconer, in his September 2003 report, stated the employee began her job with the employer Aas a supper cook, doing food preparation, food handling, chopping and cutting and serving for approximately five to six years and then she was promoted to the lead cook.  Ms. Walsh states she works up to seven, four hours a week cooking, scheduling and doing administrative tasks such as ordering grocery supplies, food supplies and dealing with food vendors.@  Dr. Falconer also reported changes in the employee=s work duties when the food operation moved to a new kitchen and the employee was promoted to lead cook.  AMs. Walsh notes the kitchen was a larger facility and the work surfaces were approximately two inches higher.  In addition, by April 2002, there was a change in the serving-set up which required the increased use of the hands along with increased reaching, and in April 2002, Ms. Walsh noted that she had lost her assistant and was required to do more serving, more dish preparation and was required to do more leaning and reaching as changes in the serving line area had also been made requiring her to lean over the steam table to scoop food and place it onto patient trays.@  (Resp. Cambridge Exh. 1.)

 

Dr. Nagib concluded the employee had cervical spondylosis with a C5 nerve root entrapment for which he performed surgery on February 10, 2004.  The doctor opined the employee=s condition was work related.  Although Dr. Nagib does not set out in his reports any history he received from the employee, the doctor did have available to him the reports of Dr. Wicklund and Dr. Falconer.  These reports provide an adequate description of the employee=s general job duties with the employer and provide sufficient factual foundation for Dr. Nagib=s opinion.  Although there were medical opinions to the contrary, the compensation judge adopted Dr. Nagib=s opinion.  It is the compensation judge=s responsibility, as the trier of fact, to resolve conflicts among expert medical testimony.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Because the compensation judge=s decision is supported by substantial evidence, it must be affirmed by this court.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

 

2.  February 15, 2000 Personal Injury

 

The compensation judge found the employee=s February 15, 2000, personal injury resulted in permanent restrictions (finding 18).  The compensation judge, however, also found the employee had no restrictions after August 15, 2000 (finding 5).  The judge further found that although the February 15, 2000 injury was permanent, it was not a substantial contributing cause of the employee=s disability or need for medical treatment after August 15, 2000 (finding 18).  Farm Bureau appeals this finding asserting the compensation judge=s findings are inconsistent.  We agree.

 

The compensation judge stated in a memorandum that it was Dr. Falconer=s opinion that the employee had a temporary injury in the nature of an aggravation of arthritis in her thumbs on February 15, 2000.  We do not read Dr. Falconer=s testimony that way.  The doctor diagnosed  the February 2000 personal injury as bilateral thumb arthritis and stated that the employee had permanent restrictions on her employment activities as a result of that injury.  Specifically, Dr. Falconer recommended the employee avoid high-force repetitive pinch and thumb pressure and avoid activities such as serving food using a scoop, large spoon or ladle.  (Resp. Cambridge Exh. 1, p. 34-35.)  Dr. Falconer did testify that after six months, the February 2000 injury was no longer a substantial contributing factor to the employee=s ongoing wage loss claim.  The basis for that testimony was not, however, that the February 2000 injury was temporary.  Rather, Dr. Falconer stated it was the employee=s carpal tunnel syndrome and shoulder pain that was causing her disability, not the thumb pain.  Whether an injury is a substantial contributing cause of disability is not exclusively a medical decision but also involves principles of legal causation.  We, accordingly, remand for reconsideration by the compensation judge the issue of the nature and extent of the February 15, 2000, injury including the issue of any contribution/apportionment for which that injury may be responsible.

 

3.  Reimbursement

 

The compensation judge found Cambridge paid temporary total disability benefits to the employee under a temporary order from January 16 through September 14, 2004, in the amount of $20,047.67.  The compensation judge then ordered Farm Bureau to reimburse Cambridge for temporary total disability benefits paid during that period.  Cambridge and Farm Bureau both appeal this order.

 

In February 2004, Cambridge filed a petition for reimbursement, seeking payment from Farm Bureau for benefit payments made to the employee.  In its petition, Cambridge contended it had paid temporary total and temporary partial disability benefits to the employee from March 2, 2000 to the present and continuing.  The petition for reimbursement was not offered in evidence at the hearing before the compensation judge.  At the hearing, Cambridge offered Respondent Exhibit 4, which enumerated payments of $14,877.27 without setting forth the dates of those payments.  Counsel for Cambridge stated at the hearing its claim was for contribution from Farm Bureau based on the apportionment opinion of Dr. Falconer.  Subsequent to the hearing, Mr. Patera requested the compensation judge to clarify her findings and apply Kirchner v. County of Anoka, 410 N.W.2d 825, 40 W.C.D. 186 (Minn. 1987).  The compensation judge declined to do so.

 

The employee sustained personal injuries during the coverage of Farm Bureau in June 2002, May 2003 and October 2003.  The employee=s weekly wage was $586.94 in 2002, $455.55 in May 2003, and $273.50 in October 2003.  Apparently, Cambridge paid benefits for the 2000 injury and temporary partial disability benefits to the employee following the June 2002 personal injury until October 2003, and thereafter paid total disability benefits.  At oral argument, the employee contended she was underpaid temporary partial disability benefits and stated a claim petition was pending for these benefits.  In a memorandum, the compensation judge stated the employee=s disability after January 16, 2004, was due to the October 2003 cervical injury.  The basis for this conclusion is unclear given that the employee sustained multiple injuries all resulting in permanent restrictions.  Further, the liability of Farm Bureau for wage loss benefits, contributions or reimbursement for the October, 2003 injury cannot exceed the $273.50 wage in effect on the date of that injury.

 

It is unclear from the evidence in this case the amount of benefits paid the employee by Cambridge and the periods for which such benefits were paid.  Apparently, there remains a claim by the employee for underpayment of temporary partial disability benefits after June 1, 2002.  Finally, the employee=s claim for benefits and Cambridge=s claim for contribution/reimbursement involve issues of apportionment not decided by the compensation judge.^[4]  Based upon the existing record, this court is unable to resolve the issues raised on appeal by the parties.  Accordingly, the case is remanded to the compensation judge for additional findings pursuant to this opinion.  On remand, the compensation judge should consolidate for hearing the employee=s claim for temporary partial disability benefits.