ANNE H. SCHMIDT, Employee/Appellant, v. BOISE PAPER SOLUTIONS, SELF-INSURED, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 31, 2006

 

No. WC06-103

 

 

HEADNOTES

 

TEMPORARY BENEFITS - SUBSTANTIAL EVIDENCE.  Where the compensation judge=s findings were detailed and his memorandum substantial, where the medical records were complex and exhaustive, where the judge cited several specific details from the opinions of medical experts whose conclusion differed from his, there was no evidence that the judge=s review of the evidence had been insufficiently thorough so as to warrant remand for reconsideration of his denial of the employee=s claim for wage replacement benefits, particularly in light of the employee=s repeatedly normal EMGs and repeatedly almost normal findings on physical examination both before and after the period of her claim.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE; PERMANENT PARTIAL DISABILITY.  An employer=s initial admission of liability for an alleged work injury to the extent of agreeing to pay for immediately subsequent medical treatment or wage replacement does not necessarily constitute a permanent admission of liability with regard to permanency benefits.  Where the employer had paid medical and wage replacement benefits for an admitted 1993 carpal tunnel injury, including the cost of surgery, and where the compensation judge in denying wage replacement benefits for a 1997 and a 2003 work injury had relied on a medical opinion that the employee=s care throughout the case had been excessive or unnecessary, it was not a breach of discretion for the compensation judge to find the issue of permanency for the 1993 carpal tunnel injury insufficiently pled and litigated in light of the fact that the employee had not listed a 1993 date of injury on her claim petition - - notwithstanding that the petition had sought permanency benefits for an unspecified carpal tunnel injury and medical records in evidence clearly indicated that employee=s only carpal tunnel injury was the 1993 injury.

 

Affirmed.

 

Determined by Pederson, J., Johnson, C. J., and Rykken, J.

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: Michael A. Jaksa, Shermoen & Jaksa, International Falls, MN, for the Appellant. Edward Q. Cassidy, Felhaber Larson Fenlon & Vogt, St. Paul, MN, for the Respondent.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's denial of wage replacement benefits consequent to an admitted work injury on February 19, 1997, and/or a claimed work injury on February 9, 2003, and from the judge=s denial of permanent partial disability benefits consequent to a May 6, 1993, work injury.  We affirm.

 

BACKGROUND

 

The medical treatment history here relevant is extensive and complex.  On about May 6, 1993, Anne Schmidt^[1] experienced swelling in both wrists and discoloration in the right while doing work as a millwright in the course of her employment as a Avibration technician@ with Boise Paper Solutions.  When she sought medical attention about a week later for specifically the right wrist, x-rays revealed no evidence of fracture, and Dr. R. Nicholas Trane diagnosed right wrist sprain, prescribed Naprosyn, and recommended icing, the use of splints, and no use of the wrist for a week.  Ms. Schmidt subsequently treated briefly with the company physician, Dr. Jon Talsness, who, in a Physician=s Report dated August 17, 1993, indicated that permanent disability was unlikely and that further medical care was unnecessary.  Symptoms persisted, however, and on September 28, 1993, Ms. Schmidt underwent an EMG that revealed borderline to mild carpal tunnel syndrome.  It was determined on October 26, 1993, that Ms. Schmidt should be treated nonsurgically for her condition, and in a Physician=s Report dated February 21, 1994, Dr. Mark Carlson indicated that Ms. Schmidt had reached maximum medical improvement [MMI] with regard to her May 1993 work injury on December 1, 1993, subject to a 3% permanent partial disability of the whole body.

 

Ms. Schmidt continued to work without surgery for another year, but symptoms continued, and on December 8, 1994, she saw orthopedic surgeon Dr. Thomas Kaiser, to whom she complained of numbness and tingling in the thumb, index finger, and long finger in her problematic right hand.  Dr. Kaiser diagnosed carpal tunnel syndrome and flexor tenosynovitis and referred Ms. Schmidt for an EMG of the right upper extremity.  The EMG was conducted on January 13, 1995, and proved normal, and Dr. Kaiser released Ms. Schmidt to return to work without restrictions and without surgery.  On April 5, 1995, Ms. Schmidt again sought medical attention, at Orthopaedic Associates of Duluth, and x-rays again proved unremarkable.  An MRI scan of the right distal forearm conducted on April 18, 1995, also proved essentially normal, but nevertheless, with symptoms continuing even in spite of a cortisone injection, on September 21, 1995, Ms. Schmidt underwent right carpal tunnel release surgery, performed by Dr. Peter Goldschmidt.  She returned to one-handed work the day after the surgery, and by December 6, 1995, Dr. Goldsmith was reporting that Ms. Schmidt was Avery pleased with the result@ of her surgery, with Ano recurrence of her symptoms,@ and he released her to return to full duty at her job.

 

A little over a year later, on February 19, 1997, Ms. Schmidt sustained another injury to her right arm while working with a wrench in the course of her employment as a vibration technician with Boise Paper Solutions.  Ms. Schmidt [the employee] was forty-one years old on that date and was earning a weekly wage of $731.32.  Boise Paper Solutions [the employer], self-insured at the time against workers= compensation liability, admitted liability for the injury and eventually paid temporary total disability benefits for September 17 and 18, 1997, and temporary partial disability benefits for May 18, 2000, and for a period from February 24, 2003, through March 2, 2003.  On March 5, 1997, the employee commenced treatment with her family physician, Dr. Daniel Ramquist.  Dr. Ramquist diagnosed Alateral epicondylitis, tennis elbow,@ administered a cortisone injection, and released the employee to work subject to restrictions against lifting over twenty-five pounds and doing any prolonged gripping manipulations.  On April 15, 1997, Dr. Ramquist released the employee to return to her full work activity on April 18, 1997, without restriction, and on July 28, 1997, he completed a Health Care Provider Report on which he indicated that the employee had reached MMI with regard to her February 19, 1997, injury on April 18, 1997.  Eventually the employee=s complaints returned, however, and Dr. Ramquist referred the employee back to Dr. Goldschmidt, who ordered another EMG.  The EMG, which was conducted on September 4, 1997, was read to reveal a probable mild to moderate right posterior interosseous neuropathy, and on September 17, 1997, under a diagnosis of radial tunnel syndrome, Dr. Goldschmidt performed a radial nerve exploration and release.

 

Subsequent to her surgery, the employee returned to her job as a vibration technician, but, although that job was apparently not as physically demanding as had been her former job as a millwright, she had continuing weakness in her forearm and wrist, and she was referred for physical therapy, which she commenced on April 14, 1998.  On May 21, 1998, her case manager, Wende Morrell, issued a report in reply to a query of the employer, in which she concluded that the employee was physically capable of performing her job in vibration maintenance without restrictions.  The employee completed her physical therapy regimen on June 23, 1998, after definite improvement, although some swelling and soreness remained.  Her symptoms apparently continued, however, and on November 2 and 3, 1998, she underwent a functional capacities examination [FCE].  The FCE revealed slightly below normal grip strength and coordination in her right hand, decreased overall strength and endurance in her right upper extremity for overhead lifting, elevated work, pushing, and repetitive coordination tasks, and increased complaints of pain and neurological symptoms with right upper extremity use.  The FCE resulted, in part, in recommendations that the employee consider taking a vacation from work in order to monitor her upper extremity symptoms, Ato identify if any improvements occur,@ and that she consult further with a rehabilitation professional regarding the possibility of additional work accommodations or alternative job options.  Upon those recommendations, the employer transferred the employee from her vibration technician job to a job in the employer=s knife sharpening, Aslitter grinder,@ shop, which evidently permitted her to transfer more of her work to her left hand.  On November 23, 1998, Dr. Goldsmith indicated on a Health Care Provider Report that the employee had reached MMI  with regard to her February 19, 1997, work injury on February 19, 1998.

 

The employee=s symptom complaints continued, and on December 23, 1998, the employee commenced another program of physical therapy, under the supervision of osteopath physiatrist Dr. Daniel Wallerstein, to whom she had been referred by Dr. Goldschmidt.  Dr. Wallerstein diagnosed status post right posterior interosseous nerve release, myofacial pain syndrome, generalized deconditioning of the right upper extremity and shoulder girdle, history of right carpal tunnel release, mild dysesthesias in the right radial sensory nerve distribution, and mild lateral epicondylitis.  In addition to the physical therapy with gradually progressive strengthening exercise, Dr. Wallerstein recommended continued work restrictions and inclusion of ergonomics in the employee=s use of her arms in both work and home activities.  The employee evidently completed her physical therapy program in May of 1999, and on August 12, 1999, she reported to Dr. Wallerstein that she was Ahaving essentially no discomfort in her forearm or upper arm@ and was Ano longer having any of the aching pains that she had in the past,@ although she was currently experiencing some Apopping and crunching@ sensations in her neck.  After reviewing the employee=s work situation with the employee and her case manager, and after reviewing with them also the importance of the employee=s avoiding certain postures with her head and neck, Dr. Wallerstein indicated that he was placing the employee at MMI with regard to her right upper extremity condition.

 

On December 15, 1999, the employee saw Dr. Ramquist=s physician=s assistant, J. Osterhaus, with complaints of increasingly severe neck and right shoulder pain, together with pain and swelling in the right wrist and hand.  Under a diagnosis of cervical myositis of unclear etiology, together with a history of carpal tunnel and radial nerve neuropathy, P.A. Osterhaus ordered an MRI scan of the employee=s cervical spine, which was conducted on December 23, 1999, and read to be essentially normal.  In follow-up on January 3, 2000, the employee=s diagnosis was modified to A[a]cute brachial neuritis or plexopathy, of unclear etiology,@ and an MRI scan of her right shoulder was ordered.  The MRI scan, conducted on January 19, 2000, was read to reveal probable tendonitis, degenerative acromioclavicular joint disease, and subacromial-subdeltoid bursitis, and on January 21, 2000, P.A. Osterhaus concluded that the employee=s case was one of Aclassic severe fibromyalgia with a chronic pain syndrome and co-morbid depression on top of her rotator cuff tendinitis.@

 

On March 22, 2000, the employee was examined by hand surgeon Dr. Jeffrey Husband, for ongoing symptoms in her neck and right upper extremity.  In his notes for that date, Dr. Husband references the MRI of the employee=s neck, which the employee had acknowledged to be normal, together with that of her right shoulder, which he suggested revealed the possibility of impingement syndrome although his own tests appeared to be negative for impingement.  X-rays at the time were also noted to be normal, and Dr. Husband indicated that he had explained to the employee that he did Anot have a good explanation for her problem, in particular I do not see any evidence of a surgical condition.@  The employee was examined several months later, on December 1, 2000, by Dr. Thomas Haas, who diagnosed recurrent right upper extremity pain and possible impingement, administered injections into the employee=s shoulder, and placed the employee back on work restrictions.  Evidently the employee was eventually restricted from all work between June 20 to August 3, 2001, but as of August 6, 2001, she was released to return again to regular work.

 

On January 2, 2002, the employee was placed on sick leave from her slitter grinder job, due to problems related to long-treated depression and anxiety and her perception that the machine on which she worked was being sabotaged.  Eventually she filed a union grievance, seeking to return to her job as a vibration analyst, and an arbitration hearing was apparently scheduled for March of 2003.  Meanwhile, subsequent to being released to return to regular work on June 27, 2002, the employee accepted a job as a laborer in the employer=s roll finishing department.  Several months later, on October 23, 2002, she saw Dr. Husband again, who noted that the employee was by that date Amuch improved,@ having only occasional neck and right arm pain but no residual numbness or tingling.  On those findings, Dr. Husband diagnosed resolved radial tunnel syndrome and carpal tunnel syndrome and concluded that it was safe for the employee to return to the vibration technician job, which he considered perhaps less demanding than the job that the employee had been doing with the paper rolls.

 

On February 10, 2003, the employee sought treatment with physician=s assistant Bradley Reiners at the International Falls Clinic, for a work-related flare-up in her neck and right shoulder symptoms the day before.  The employee=s weekly wage on the date of this flare-up was $332.73.  Noting in part the presence of Asome muscle spasm in the trapezius muscle and sternocleidomastoid muscle on the right,@ P.A. Reiners referred the employee back to Dr. Ramquist and released her to work with Alimited use of the right arm as she can tolerate.@  On February 14, 2003, the employee saw Dr. Ramquist again, who noted that Ait would appear that every doctor that sees her tries to refer to somebody else.@  In turn, Dr. Ramquist himself referred the employee to physiatrist Dr. Skip Silvestrini, to Afigure out what=s going on with her arm.@  Upon examination of the employee on February 20, 2003, Dr. Silvestrini found in part that the employee had Aphenomenally strong grip strength,@Aexcellent finger extensor, finger flexor, wrist flexion and extension strength,@Avery strong@ pronation and suppination strength, Apowerful@ biceps, and Astrong anterior deltoid,@ although she also had Aweak triceps on the right, weak posterior deltoids,@ and Aweak pectoralis strength.@  Upon those and other physical examination findings, Dr. Silvestrini concluded that it was Apossible that this is more of a thoracic outlet phenomenon involving the radial nerve and the lower trunk,@ and he assigned specific work restrictions against repetitive use of the right arm and against use of that arm above the plane of the shoulder.  The employee evidently returned to attempt a light duty job with the employer on February 24, 2003, but apparently the job immediately proved impossible to perform within the restrictions issued by Dr. Silvestrini, which also compelled cancellation of the employee=s union action regarding a return to her vibration analyst job.  The employee evidently did not return to work for the employer after February 24, 2003.

 

On March 6, 2003, the employee was seen again by Dr. Husband, who diagnosed diffuse right upper extremity pain and released the employee to return to work subject to certain lifting and grasping restrictions.  In a letter to the employee=s attorney dated March 19, 2003, Dr. Husband indicated that in his opinion the employee had not been physically able to continue her work duties at the employer and that her recent flare-up of symptoms was a recurrence of the prior problems for which Dr. Husband had been treating her.  At the employee=s request, Dr. Husband had also ordered another EMG, which was conducted on March 27, 2003, and was read to be normal.  On April 10, 2003, Dr. Silvestrini reported that the employee Aseems to be improving,@ having fairly minimal tenderness over the biceps tendon, no pain over the remainder of the right rotator, a Anormal muscle filing pattern,@ normal grip strength and manual muscle testing, and no increasing pain with those motions.  On those findings, he concluded that Ait would be reasonable to continue to work towards generalized conditioning@ but continued the employee=s restriction against use of her arm above the plane of her shoulder, expressing hope that, as she continued to strengthen, she would see an ongoing reduction in symptoms and an improvement in endurance.  When he saw the employee again on June 13, 2003, he reported that she was noting Acontinued reduction of her symptoms,@ and he concluded that she was at MMI with regard to her work injury.  Nevertheless, he restricted her from repetitive use of her right arm above shoulder level and from any repetitive use of the extensor compartment of the forearm such as would be required by typing or keyboarding work for more than an hour at a time, explaining that A[t]he purpose of work restrictions [is] to avoid recurrent symptomatology.@

 

In May of 2003, the employee had begun receiving vocational counseling from qualified rehabilitation consultant [QRC] Karen Dorholt, and with Ms. Dorholt=s help she eventually found several jobs, all paying substantially less than her work for the employer and most proving physically too difficult for her to perform for any length of time.  By November 20, 2003, she was reporting to Dr. Silvestrini that her symptoms had increased again, and Dr. Silvestrini indicated that the restrictions that he had issued in April 2003 were permanent.  On that same date, November 20, 2003, the employee filed a claim petition, alleging entitlement to temporary partial disability benefits continuing from October 1, 2003, permanent total disability benefits continuing from February 24, 2003, and undetermined permanent partial disability and medical benefits - - all consequent to her admitted work injury on February 19, 1997.

 

On December 8, 2003, the employee returned to see Dr. Ramquist regarding right arm pain and weakness, pressure on the right side of her neck, and occasional debilitating numbness in her right hand that she said made it difficult for her to feed herself.  Dr. Ramquist diagnosed reflex sympathetic dystrophy, restricted the employee from working, and referred her for yet another EMG, which the employee underwent on January 2, 2004.  The EMG was read to be normal, with the employee appearing to be neurologically intact and the interosseous nerve abnormalities seen in her 1997 study appearing to be resolved.  When he saw the employee again on January 12, 2004, Dr. Ramquist diagnosed myofasciitis of the neck, shoulder, and right arm and prescribed medication.  When he saw her again on February 2, 2004, Dr. Ramquist reported that the employee had noticed some improvement with her medication, but he noted also Aa radial nerve palsy in her right arm@ and Aquite a bit of muscle spasm present in her upper and lower arm,@ and he continued her restriction from working.

 

On March 4, 2004, the employee was examined for the employer by orthopedic surgeon Dr. William Simonet, who diagnosed the following: (1) nonspecific neck stiffness without objective physical findings; (2) generalized right arm symptoms without objective physical findings; (3) status post right carpal tunnel release and right radial tunnel release with no evidence of ongoing symptomatology or EMG abnormality; (4) depression; (5) deconditioning syndrome; and (6) somatoform pain disorder, which the doctor defined as Aphysical symptoms without organic pathology to explain.@  In the history section of his report, Dr. Simonet stated that the posterior interosseous neuropathy that was reported to be possibly reflected on the employee=s September 4, 1997, EMG was Aa very controversial condition.@  He stated that the history of radial nerve decompression procedures that are performed pursuant to that diagnosis suggests that that surgery Aprobably is no better than placebo,@ noting that, indeed, the employee herself had acknowledged to him that her own radial nerve decompression Adid not help at all.@  It was Dr. Simonet=s opinion that the only Ainjury@ that the employee had sustained was the mild right carpal tunnel syndrome that she sustained in 1993, that the neck and upper extremity problems that the employee experienced beginning in February of 1997 constituted Asome mild symptoms of overuse syndrome but no objective evidence of any physical injury.@  It was his further opinion that the employee=s medical treatment to date had been excessive and, in fact, had been a cause of the employee=s problems, in that it had Aonly serve[d] to reinforce her perception of injury and disability which frankly does not exist.@  It was his opinion also that the employee did not require any future treatment for her neck or upper extremity and did not require any restrictions related to her alleged injuries.  He opined further that the employee was not subject to any temporary partial disability after October 1, 2003, and/or to any permanent disability after February 24, 2003, because A[s]he has no injury or condition which would require such disability.@  He stated further, AI find it really sad that she is currently applying for Social Security Disability.  This is a travesty.  While the [employee] may suffer from some mild depression, I think to some degree her depression has been created by . . . [her] being essentially told that there is something wrong with her.@  Finally, it was Dr. Simonet=s opinion that the employee had not sustained any permanent partial disability as a result of any work injury and that she had reached MMI with regard to her neck and upper extremity complaints Aon the date of her presentation of symptoms.@  Dr. Simonet=s MMI opinion was served on the employee on March 8, 2004.

 

On April 2, 2004, the employee was released to return to work by P.A. Reiners, restricted from repetitive or prolonged use of her right hand, elbow, or shoulder.  On April 20, 2004, she was examined at the request of her attorney by Dr. Duane Person.  In his report on that date, Dr. Person diagnosed the following: (1) right carpal tunnel syndrome, post surgical release; (2) radial nerve compression of the proximal right forearm, post surgical release; (3) chronic musculoligamentous strain with multilevel degenerative arthritis of the cervical spine; (4) chronic rotator cuff tendinitis of the right shoulder; (5) acromioclavicular joint degenerative arthritis of the right shoulder; and (6) lateral epicondylitis of the right elbow.  Dr. Person opined that the employee had sustained a permanent aggravation of her upper right extremity condition about February 10, 2003, while moving heavy rewinder rolls in the course of her employment with the employer.  He opined also that the cause of the employee=s cervical condition, her right shoulder acromioclavicular degenerative arthritis, and her lateral epicondylitis was a Gillette-type injury that had culminated on her last day of work, February 24, 2003.  It was Dr. Person=s further opinion that the employee=s carpal tunnel condition was caused by the May 6, 1993, work incident and that her radial nerve compression and her right shoulder rotator cuff tendinitis were caused by her February 19, 1997, work injury, which he considered a substantial contributing cause of the employee=s ongoing disability.  He concluded also that the February 10, 2003, work incident was also a substantial aggravation of the employee=s neck and right elbow and shoulder conditions, though not of her right carpal tunnel or radial nerve compression syndromes.  Dr. Person considered the employee to be permanently partially disabled by her cervical condition within the meaning of Minnesota Rules 5223.0370, subpart C(2), for a 10% whole-body impairment rating, but he rated the employee=s right shoulder condition at 0%.  He rated the employee=s lateral epicondylitis and radial nerve decompression at 0%, pursuant to Minnesota Rules 5223.0460, subpart 2D(1), and he rated her right carpal tunnel syndrome at .5%, pursuant to Minnesota Rules 5223.0130, subpart 3E, though he did not consider the latter condition a substantial contributing cause of the employee=s ongoing disability.  Finally, he recommended the following physical restrictions for the employee: (1) no lifting over fifteen pounds; (2) no lifting over five pounds with her right arm; (3) no work on ladders; (4) no repetitive flexion, extension, lateral bending, or rotating motions of the cervical spine; (5) no work requiring unusual bending of her neck or right arm; (6) no work with her right arm above shoulder level; and (7) no work that exacerbates her neck or right arm symptoms.

 

On May 13, 2004, the employee found and accepted a job working about thirty hours a week as a clerk in an office supply store, which was apparently within her restrictions and ability to perform and which eventually paid her about $247.50 a week.

 

On September 3, 2004, the employee was examined again by Dr. Ramquist, who noted the employee=s reports of chronic pain in her right upper extremity but found normal range of motion in her shoulder and intact extensor function at her wrist.  Two months later, on November 5, 2004, Dr. Ramquist noted that the employee was reporting a considerable flare-up in her pain, but he again found normal range of motion in the employee=s neck and right shoulder, elbow, and wrist. On January 14, 2005, the employee returned to see Dr. Ramquist regarding Achronic pain in the right side of her neck, right shoulder, and right arm when she does repetitive work.@  Finding tenderness in the employee=s shoulder, though not in her wrist or elbow, Dr. Ramquist diagnosed status post carpal tunnel surgery and radial nerve decompression.

 

On March 11, 2005, the employee amended her claim petition, again alleging entitlement to compensation for temporary partial disability benefits continuing from October 1, 2003, and permanent total disability benefits continuing from February 24, 2003, but now also to permanent partial disability benefits specifically for a .5% total body impairment related to her carpal tunnel syndrome, pursuant to Minnesota Rules 5223.0130, subpart 3E, and for a 10% total body impairment related to her cervical spine, pursuant to Minnesota Rules 5223.0370, subpart C(2).  The amended claims were made consequent to a specific work injury on February 19, 1997, and a Gillette-type work injury culminating on February 24, 2003.

 

On August 1, 2005, at the request of her attorney, the employee underwent a vocational evaluation by QRC Michael Hill.  Ultimately, it was Mr. Hill=s opinion that the employee=s work injury and resulting physical limitations were a substantial contributing cause of her Aunderemployment@ in her labor market, that her effort to obtain work had been excellent, and that her current employment income properly reflected her earning capacity.  Later that month, on August 28, 2005, vocational rehabilitation consultant [VRC] Jan Lowe reported on a vocational evaluation of the employee that she had conducted at the request of the employer.  Based on a review of the employee=s medical condition, her personal work history and qualifications, and a survey of her labor market, Ms. Lowe concluded in part that the employee had the ability to work and was not permanently and totally disabled from employment in her local labor market.  Ms. Lowe identified several jobs available to the employee in the categories of claims associate, retail sales, cashier/cleaner, telemarketer, fast food worker, pizza delivery, job coach, optician, and hotel desk clerk/night auditor, with hourly wages ranging mostly from $6.00 to $8.00.

 

On September 12, 2005, Dr. Ramquist reported to the employee=s attorney in answer to certain queries.  It was the doctor=s opinion that the employee=s present diagnosis was chronic myofasciitis of the right shoulder and arm, which had occurred Aas the result of  repetitive use and lifting heavy objects far above that which was safe for her.@  He indicated further that he believed that the employee=s present condition was permanent and that no further surgery or therapy, other than exercise, would improve it.  With regard to the employee=s restrictions, Dr. Ramquist recommended that the employee avoid repetitive use of the arm above shoulder level, that she avoid repetitive use of the hand such as that required in prolonged typing or in keying for more than an hour, that she avoid lifting more than fifteen pounds, and that she avoid repetitive flexion, extension, lateral bending, or rotating motions with her neck.

 

On September 12, 2005, Dr. Simonet testified by deposition, essentially reiterating in more detail the conclusions that he had voiced in his March 4, 2004, report and responding to the April 20, 2004, report of Dr. Person, which did not alter his opinions.  He testified also that the Aquite a bit of muscle spasm@ noted by Dr. Ramquist on February 2, 2004, did not really qualify as an objective clinical finding, in that the spasm was not specifically located.  Also testifying by deposition on September 12, 2005, was VRC Jan Lowe.  In addition to essentially reiterating conclusions expressed in her report of August 28, 2005, Ms. Lowe testified that in her opinion the employee did not make a reasonably diligent job search in either 2003 or 2004 and that the employee=s current earnings were not an accurate reflection of her earning capacity because she was not limited to working only thirty hours a week.

 

The matter came on for hearing on September 14, 2005.  Issues at hearing were as follows:  (1) whether the employee sustained a specific work injury on or about February 9, 2003; (2) whether the employee sustained a Gillette-type injury culminating in the employee=s cessation of work on February 24, 2003; (3) whether MMI had been reached with regard to any February 2003 work injury; (4) whether the employee had been temporarily totally disabled as a result of any February 2003 work injury during various periods as claimed; (5) whether the employee had been temporarily partially disabled as a result of her February 19, 1997, work injury and/or any February 2003 work injury; (6) whether the amounts earned by the employee during the periods of her temporary partial disability claim accurately reflected her earning capacity; (7) whether the employee had made a diligent search for employment; (8) whether the employee had sustained a compensable permanent partial disability to .5% of her whole body as a result of her work-related right carpal tunnel syndrome surgery; and (9) whether the employee had sustained a compensable permanent partial disability to 10% of her whole body as a result of a work-related injury to her cervical spine.  The employee stipulated at hearing that her permanent total disability claim had been withdrawn in that she continued to work, and she had evidently replaced it with a temporary total disability claim.  She indicated at hearing that her claim for temporary total disability benefits pertained only to the alleged February 2003 injury, not to her admitted February 1997 injury, because,  by the time she was off work entirely subsequent to February 24, 2003, she was long past service of notice that MMI had been reached with regard to the 1997 injury

 

At the hearing, the employee testified in part that her symptoms in her right upper extremity had never resolved subsequent to her work injury on February 19, 1997 - - that she has Aweakness in my wrist if I overuse it to an extent,@ that she has Atenderness in by my scar in my elbow area,@ that she sometimes has Aimpingement in my shoulder area, shoulder blade area,@ that she constantly has Atightness on [the right] side of my neck,@ and that her Ahand swells from time to time.@  Also testifying at hearing was Van Pavleck, a maintenance supervisor at the employer, who was the employee=s supervisor while she worked in the slitter grinder shop.  It was Mr Pavleck=s testimony, supported by documented conversations with the employee, that the employee complained repeatedly, between May of 2000 and her placement on sick leave for depression in January of 2002, that someone appeared to have been tampering with - - sabotaging - - the slitter grinder equipment on which she worked.  Mr. Pavleck testified that he took the employee=s complaints seriously and that they were investigated, in part by video surveillance, but that no evidence of sabotage was discovered.^[2]  Also testifying at hearing was Barb Johnson, the employer=s human resources coordinator.  Ms. Johnson testified in part that the employee remained on continuing unpaid disability leave from the employer, a status that entitled the employee to indefinitely continuing medical benefits and pension accrual, until such time as she should choose to quit or to retire.  She testified also that the employee would have a right to return to her old position whenever she became able to fully perform the job.

 

By findings and order filed December 19, 2005, the compensation judge concluded in part that the employee had not proven that she sustained a compensable work injury, either specific or Gillette-type, in February of 2003.  He concluded further that the employee had not proven that she sustained either any loss of earning capacity or any permanent limitations or physical restrictions as a result of her admitted work injury of February 19, 1997.  He concluded expressly that the employee was neither temporarily totally nor temporarily partially disabled from any injury at any time since February of 2003.  Finally, he denied for lack of supporting evidence the employee=s claim to compensation for permanent partial disability related to her cervical spine, and he concluded that any permanent partial disability related to the employee=s 1995 right carpal tunnel surgery was not attributable to the admitted injury of February 19, 1997, but to the employee=s May 1993 injury, which he noted was not pleaded by the employee or litigated before the court and therefore was not compensable in the proceeding before him.  The employee appeals from the denial of temporary benefits subsequent to February 9, 2003, and from the denial of permanent partial disability benefits related to her 1995 carpal tunnel release.

 

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.  Wage Loss Benefits related to the February 1997 Work Injury or a February 2003 Work Injury

 

At Findings 13 and 14 the compensation judge concluded that the employee did not sustain either a specific or a Gillette-type work injury in February of 2003.  At Findings 16 and 17, the judge further concluded that the employee did not sustain either any loss of earning capacity or any permanent limitations as a consequence of her admitted February 19, 1997, work injury.  In light of these findings, the judge also found that the employee was neither temporarily partially nor temporarily totally disabled at any time since February 2003.  The judge indicated in his memorandum that his decision was based not only on the opinions of Dr. Simonet but also on the repeatedly normal examination findings of various treating physicians, including Drs. Ramquist and Silvestrini, and of the employee=s own independent examiner, Dr. Person.  The judge suggested that Dr. Person appeared to him to be issuing restrictions not only unsupported by any objective examination findings but in several ways directly contrary to those findings and even to the symptomatology expressed by the employee herself.  On these conclusions, the judge found that A[n]ot only does a preponderance of the evidence not support the employee=s claim but also in reality a preponderance of the evidence establishes the employee is not entitled to the benefits claimed.@  The employee concedes that Dr. Simonet=s opinion of March 4, 2004, may constitute substantial evidence that the employee was not subject to permanent restrictions as of the date of that opinion.  She contends, however, that substantial evidence does not exist, in either that opinion or the record at large, to support the judge=s denial of compensation for a temporary disability continuing from and after February 24, 2003, the date on which the employee last worked for the employer.  She contends further that, although the compensation judge may have stated in his memorandum that he had carefully read and reread the employee=s extensive medical records from nearly twenty providers, the judge=s AFindings and Memorandum do not reflect a careful review@ and therefore the issue of the employee=s claim for wage replacement benefits continuing from February 9, 2003, should be remanded to the judge for alternative findings.

 

In support of her position that the compensation judge=s review on the wage replacement issue was not careful, the employee notes that, right up to the date of the hearing, the employer had been voluntarily paying rehabilitation and medical benefits based on the admitted February 19, 1997, injury and had also paid temporary partial disability benefits for the week of February 24, 2003, through March 2, 2003.  She notes further that the employer acknowledged the employee=s entitlement to nonworkers= compensation sick benefits based on the restrictions of Dr. Silvestrini, which had in turn been approved by Dr. Tolsness, the employer=s own physician.  She argues that the surgeries that she underwent in 1993 and 1997 were for admitted work injuries to her right upper extremity, that she underwent an extensive functional capacities examination in 1998 that resulted in substantial restrictions related to those injuries, and that, when she reported symptoms to her employer on about February 9, 2003, the subsequent medical examination by P.A. Reiners on February 10, 2003, resulted in the objective clinical finding of spasm.  The employee argues that there is no evidence to contradict either her testimony that she felt pain in February of 2003 consistent with pain she had felt ever since her 1997 injury or her testimony that her work in February of 2003 either caused or aggravated that pain.  Without citation, she argues that even the compensation judge himself Ain fact, agreed that this work increased her pain,@^[3] and she contends that it was this increase in pain that resulted in restrictions that kept her unemployed, noting that the employer itself rendered testimony that it could not accommodate Dr. Silvestrini=s restrictions.^[4]  She emphasizes that P.A. Reiners= treatment notes for February 10, 2003, clearly report spasm in the trapezius muscle and sternocleidomastoid muscle on the right, suggesting that the compensation judge appears to ignore this report, which the employee terms Aobjective evidence of an injury.@  She suggests that, while noting Dr. Silvestrini=s documentation of Aphenomenally strong grip strength,@ the judge appears also to ignore Dr. Silvestrini=s findings of weak triceps on the right, weak posterior deltoids, weak pectoralis, and depressed deep tendon reflexes.  She argues that the judge further misinterpreted Dr. Silvestrini=s notes by quoting the doctor=s report that the employee Adoes not describe a specific injury,@ whereas the employee was never claiming a single-event injury but rather an injury resulting from the handling of many rewinder rolls over a period of time.  The employee contends that all of this evidence constitutes basis for remanding the matter to the compensation judge for reconsideration and fuller address of issues related to the employee=s claim for wage replacement benefits.  AAt a minimum,@ she argues, Athe Trial Court should have addressed the spasm detected on February 10, 2003.@  This is a complex issue, but we cannot conclude that the compensation judge failed to review the evidence properly or that his decision was unreasonable.

 

The medical record in this case is exhaustive, and we may well have found evidence supporting a decision contrary to that reached by the compensation judge to have been substantial.  But this court=s role on review is to assess the substantiality of the evidence supporting the decision reached by the factfinder, not to assess the substantiality of the evidence that might have supported a contrary conclusion.  See Land v. Washington County Sheriff=s Dep=t, slip op. (W.C.C.A. Dec. 23, 2003), citing also Ludford v. Honeywell, Inc., slip op. (W.C.C.A. Mar. 17, 2004); Moe v. Dr. Matthew A. Gahn, slip op. (W.C.C.A. Dec. 31, 2003); Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988) (Awhether [the appellate court] might have viewed the evidence differently is not the point, but whether the findings of the compensation judge are supported by evidence that a reasonable mind might accept as adequate@).  The compensation judge=s findings are detailed, and his memorandum is substantial.  Particularly given the magnitude of the record with which he was dealing, that the judge did not specifically and copiously include in his findings or his memorandum substantial evidence unsupportive of his ultimate conclusion is neither dispositive nor surprising.  It is clear, by the judge=s very citing of specific details from them in support of his own conclusion, that the judge must have read and reviewed the reports and opinions of Drs. Ramquist and Silvestrini and Person with care.  That he did not reference in detail pieces of evidence contrary to his conclusion, such as those referenced by the employee on appeal and here reviewed in some detail by this court, does not call into question that care.  Indeed, this court also has thoroughly reviewed the record - - and here thoroughly identified the best arguments of the employee as identified in her brief - - and we cannot conclude that the judge=s decision is either unreasonable or warranting of further review by remand.  This is true particularly in light of the employee=s repeatedly normal EMGs and repeatedly almost normal findings on physical examination both before and after the period of her claim.  The rare finding of spasm over that same period of time does not tip the balance of the evidence.  Therefore we deny the employee=s request for a remand and affirm the judge=s denial of the employee=s claim for wage replacement benefits subsequent to February 9, 2003.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2.  Permanency Benefits Based on the Employee=s May 1993 Work Injury

 

At Finding 1, the compensation judge concluded in part that A[n]o injury of May 1993 was alleged or litigated,@ at Finding 21 he concluded that he was therefore Aprecluded from determining whether the employee may be entitled to a .5% permanent partial disability based on such an injury,@ and at Finding 22 he concluded that Aany permanent partial disability for the [1995] right carpal tunnel surgery is not attributable to the admitted injury of February 19, 1997.@  On those findings, while not expressly denying the claim, the compensation judge refrained from awarding permanent partial disability compensation related to the employee=s carpal tunnel surgery as claimed.  The employee acknowledges that the May 1993 carpal tunnel injury was not formally pled in this matter, but she asserts that this was only because the employer had been paying all right hand and arm benefits based on the subsequent February 1997 injury, that both injuries were, after all, repetitive use injuries to the right upper extremity, and that a .5% whole-body permanent partial disability based on carpal tunnel surgery was clearly pled on the claim petition and at issue before the judge.  She argues that, despite the oversight as to omission of the 1993 injury date on the claim petition, the matter was fully presented to the judge and sufficiently pled and litigated for the judge to have determined it.  She argues that the judge Ahad all of the information necessary to decide the issue@ and that the matter should be remanded to the judge for determination.  In support of her position, she notes (1) that the 1993 accident report was placed into evidence, (2) that the 1995 carpal tunnel surgery report was placed into evidence, and (3) that both Dr. Person and Dr. Simonet were aware of and assessed the employee=s permanent partial disability in light of the 1993 injury.  She argues that, A[m]ost importantly, liability was long ago admitted for the condition@ and A[t]he only issue for the Court to decide would be the amount of permanent partial disability.@  She argues in conclusion, citing Minnesota Statutes ' 176.411, subdivision 1, that workers= compensation courts are not bound by the usual rules of pleading and, in her reply brief, that, in light of all of the evidence presented to the judge, A[t]he alternative of filing a separate claim is not an efficient use of court resources.@  We are not persuaded.

 

An employer=s initial admission of liability for an alleged work injury to the extent of agreeing to pay for immediately subsequent medical treatment or wage replacement does not necessarily constitute a permanent admission of liability with regard to other benefits.  Wage replacement benefits and the payment of medical expenses, including the expenses of surgery for which permanent partial disability benefits may be scheduled, are different benefits from permanent partial disability compensation, and entitlement to each must be independently proven.  In this case, although it apparently paid medical and wage replacement benefits for a 1993 carpal tunnel injury, the employer has never admitted liability for a permanent partial disability based on such an injury.  The compensation judge in this case appears to have relied heavily on the opinions of Dr. Simonet, to the effect that the employee=s treatment throughout this case has been excessive if not counterproductive, and he has identified substantial support for that position in the medical record at large.  Given especially this apparent perspective, we conclude that it was not at all a breach of discretion for the compensation judge to find the issue of permanency for a 1993 carpal tunnel injury insufficiently pled and litigated.  The employee is not precluded from bringing the claim at a later date.  Therefore we deny the employee=s request for a remand of this issue.