CLARISSE ZIMANSKI, Employee/Appellant, v. MINNESOTA DIVERSIFIED INDUS. and MINNESOTA NON-PROFIT WORKERS= COMP. FUND, adm=d by BERKLEY RISK ADM=RS CO., Employer-Insurer, and LANDMARK SURGERY CTR., HEALTHPARTNERS, INC., ASSOCIATED ANESTHESIOLOGISTS, P.A., SUMMIT ORTHOPEDICS, LTD., and MN DEP=T OF EMPLOYMENT & ECON. SEC., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 1, 2006

 

No. WC06-112

 

HEADNOTES

 

MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence, including adequately founded expert opinion, supports the compensation judge=s finding that the employee=s elbow surgery was not reasonable and necessary to cure or relieve the effects of the employee=s work-related injury.

 

TEMPORARY TOTAL DISABILITY - JOB SEARCH.  Where the employee did not have a reasonable expectation of returning to work for the employer in the near future and a job search would not have been futile on the basis of pending surgery, and where the employee=s short term job search attempts were limited, the compensation judge could reasonably conclude that the job search was not diligent and deny temporary total disability benefits on that basis.

 

Affirmed.

 

Determined by: Rykken, J., Stofferahn, J., and Pederson, J.

Compensation Judge: Cheryl LeClair-Sommer

 

Attorneys: Steven H. Zupke, Krug & Zupke, St. Paul, MN, for the Appellant.  Matthew H. Jones, Brown & Carlson, Minneapolis, MN, for the Respondents.

 

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals^[1] the compensation judge=s partial denial of the claimed temporary total disability benefits and the finding that the employee=s elbow surgery was not reasonable and necessary.^[2]

 

BACKGROUND

 

Clarisse Zimanski, the employee, began working for Minnesota Diversified Industries, the employer, in July 2002.  The employer was insured for workers= compensation liability by the Minnesota Non-Profit Workers= Compensation Fund, the insurer.  The employee=s job involved packing boxes of various products, which required lifting of boxes weighing 50 to 60 pounds.  On September 6, 2002, the employee began experiencing a burning pain on the inside of her right elbow.  She sought treatment at the Minnesota Occupational Health Clinic on September 9, 2002, where Dr. Michael Broderdorf diagnosed Aprobable bicipital tendinitis, right arm, due to repetitive lifting and pushing.@  He referred the employee to physical therapy, prescribed pain medication, and restricted her from lifting over 20 pounds.  He restricted the employee to modified duties for at least two weeks, and by September 30, he concluded that the employee=s tendinitis had resolved and released her to return to work on a full-duty capacity.

 

On November 12, 2002, the employee consulted Dr. Vijay Eyunni at Minnesota Occupational Health, at which time he diagnosed right biceps and right forearm tendinitis, assigned work restrictions, and recommended physical therapy, pain medication and ice and heat treatment.  The employee later reported continued limitations due to right arm symptoms and left arm symptoms that she felt had developed from overuse of her left arm.  Another one of her physicians at Minnesota Occupational Health, Dr. James Anderson, diagnosed mild overuse-type syndrome in her left arm and referred her to physical therapy to treat those symptoms.  By mid-December, the employee reported continued symptoms in her right arm, and Dr. Anderson diagnosed medial epicondyle pain in the right forearm and right forearm tendinitis, with slow improvement.  Due to the employee=s persistent pain in the right elbow, right upper arm and right shoulder, he assigned continued work restrictions and referred the employee to Dr. Mark Holm, an orthopedic specialist in hand surgery at Summit Orthopedics.

 

On January 8, 2003, Dr. Holm diagnosed chronic biceps tendinitis and ulnar neuritis of the right elbow.  An MRI indicated moderate to mild tendinopathy of the biceps tendons and moderate tendinopathy of the extensor tendon.  He treated the employee with cortisone and Xylocaine injections and medication.  The employee again consulted Dr. Holm in October 2003, reporting right elbow pain.  Dr. Holm discussed treatment options with the employee, including surgical decompression of the radial nerve, but at that time the employee was reluctant to undergo surgery.  Dr. Holm prescribed Naproxen and provide the employee with a tennis elbow strap.

 

The employee continued working for the employer until December 10, 2003, when she was laid off by the employer as part of a large economic layoff.  The employee received unemployment benefits from mid-December 2003 through mid-June 2004, and was told by the employer that when additional jobs became available, she would be contacted.  By letter dated January 26, 2004,^[3] the employer advised the employee that, at that time, they had no full-time job opportunities but would contact her when any became available.  That letter also provided the employee information on continued benefits available under COBRA.  The employee initially did not conduct a job search, but instead expected that she eventually she would return to work for the employer.  By the time of the hearing on November 16, 2005, the employee had not returned to work for Minnesota Diversified or any other employer.

 

On May 12, 2004, the employee consulted Dr. Pramila Penta, a physician at HealthPartners, reporting continuous pain in her right arm and elbow, worsened with activity.  Dr. Penta diagnosed lateral epicondylitis and medial epicondylitis of the right elbow, provided the employee with an elbow band, and recommended ice packs and pain medications and referred her for physical therapy and a steroid injection.  By mid-June 2004, Dr. Bruce Johnson, an internal medicine physician at HealthPartners, referred the employee back to Dr. Holm; the employee consulted him on June 22, 2004, reporting continued discomfort in her right elbow in spite of her use of Naprosyn and her physical therapy sessions.  Dr. Holm=s chart note reflects that the employee was not eager to have surgery.  He assigned to the employee a permanent restriction of no lifting over 10 pounds, and a restriction on heavy grasping with her right hand, and stated that the employee would recheck with him if needed.  Dr. Holm indicated that the employee continued to work for MDI; she had not worked there since the December 2003 layoff.

 

From October 3, 2004, through November 21, 2004, the employee conducted a job search, contacting 51 employers during that time; she submitted job logs documenting that job search.  In December 2004, the employee consulted Dr. Holm, again reporting right elbow and right shoulder pain.  Dr. Holm treated her with cortisone and Xylocaine injections in her right shoulder and right elbow.  He assigned additional restrictions of no heavy grasping, gripping, pushing or pulling.  On February 1, 2005, the employee again consulted Dr. Holm, reporting that the injections did not improve her symptoms, and that she had continued tenderness in her right elbow area and numbness and tingling in her right fingers.  Dr. Holm=s chart notes of that date reflect that he discussed treatment options with her, including surgery, in view of her symptoms that had persisted in spite of conservative medical treatment.  He advised that he would consider surgical decompression of the ulnar nerve, and outlined his recommendations in her chart note, as follows:

 

Treatment options were discussed with [the employee].  Her symptoms have been ongoing for over a year.  Her symptoms are quite different now than they were 2 years ago but have been fairly consistent over the past 1 year or so.  The anatomic location of her point of maximum tenderness is over the ulnar nerve just as it enters the cubital tunnel proximal to the elbow joint.  Strangely enough, she does not have tingling or numbness in the ulnar nerve distribution of the right hand.  Nevertheless nothing else has been successful and I would consider decompressing the ulnar nerve at that location.  This will be done when approved by the work comp carrier.  They may want to get a second opinion as this [is] a somewhat unusual presentation of ulnar neuritis at the right elbow. [The employee] is not working but I gave her the same work restrictions.

 

In March 2005, the employee was examined by Dr. Scott McPherson, orthopedist, at the employer and insurer=s request.  Dr. McPherson concluded that the employee sustained a sprain-type injury to her right elbow on September 6, 2002, as well as some overuse-type symptoms of her left upper extremity in November 2002.  He advised that, in his opinion, the employee=s work injury was correlated only with her distal biceps type tendinitis and not with her various other complaints.  He concluded that the distal biceps tendinitis was temporary in nature and stated that he believed that the employee had reached maximum medical improvement (MMI) from her right upper extremity injury as of February 19, 2003, with a 0% permanent partial disability,^[4] and that she had reached MMI from her left arm injury by January 4, 2003, with no permanent partial disability related to that arm.

 

Dr. McPherson concluded that the employee could work on a full-time basis, and that, from an objective standpoint, she should be able to work without restrictions, since he found no objective basis on which he would assign work restrictions.  He concluded that the medical treatment she had received thus far was Areasonable and necessary in an attempt to evaluate and treat the subjective arm complaints.@  In his opinion, however, the employee did not require any further medical treatment with respect to any work-related injury.  He stated that

 

[The employee] states that ulnar nerve decompression has been proposed and I certainly would be opposed to this.  She has fairly generalized pain about the elbow and does not localize well to cubital tunnel with really no symptoms distally and [I] feel that the predictability of an ulnar nerve decompression would be extremely low for giving her any benefit or improvement.

 

The employee ultimately decided to proceed with the surgery recommended by Dr. Holm; she testified that she stopped looking for work when she decided to proceed with surgery recommended by Dr. Holm, although the record does not reflect when the employee made that decision.  Payment for her surgery apparently was provided through health insurance coverage provided to the employee through her spouse=s insurance plan with HealthPartners, one of the intervenors in this case.  On April 14, 2005, Dr. Holm performed the surgery in the nature of an ulnar nerve decompression and a median nerve decompression in the right proximal forearm.  The employee=s pre-operative and post-operative diagnosis was compressed median and ulnar nerves.  By report dated October 10, 2005, Dr. Holm released the employee to work with a 5-pound lifting restriction.

 

On October 25, 2004, the insurer filed a Notice of Insurer=s Primary Liability Determination, stating that primary liability was denied for the employee=s work injury, contending that the employee=s injury was temporary in nature, that she had been released without work restrictions as of September 30, 2002, and that at the time of her layoff from the employer she was not treating nor under any restrictions.  The employee filed a claim petition seeking temporary total disability (TTD) benefits from December 10, 2003, and continuing, payment of medical expenses, and provision of a rehabilitation consultation.  Her claim petition was addressed at a hearing held on November 16, 2005.

 

In her findings and order served and filed on January 10, 2006, the compensation judge found that the employee continues to note effects from and is restricted as a result of her September 6, 2002, work injury, relying on Dr. Holm=s opinion in reaching those conclusions. She also concluded that the employee has not yet reached maximum medical improvement (MMI) from her right elbow injury.  The judge found that the medical treatment to the employee=s right elbow, excluding the 2005 surgery, was reasonable and necessary to cure or relieve the effects of the employee=s work injury.  Relying on Dr. McPherson=s opinion, the judge found that the surgery was not reasonable and necessary to cure or relieve the effects of the employee=s work injury, in part because the employee=s generalized pain did not correlate with her symptoms in her cubital tunnel and in part due to the lack of objective findings on examination.

 

As to the employee=s claims for temporary total disability benefits, the compensation judge found that the employee was temporarily totally disabled, due to her medical inability to work,  from the surgery date of April 14, 2005, through October 9, 2005, after which time Dr. Holm released her to return to work.  In her memorandum, the compensation judge explained that the employee was entitled to temporary total disability benefits for a brief period of time to recover medically from her surgery; she concluded that the employee=s decision to undergo surgery recommended by Dr. Holm was not unreasonable, and that although Athe surgery was not determined to be reasonable and necessary, the employee was nevertheless totally unable to work.@  The judge also found that the employee was entitled to a rehabilitation consultation.  The compensation judge, however, denied the employee=s claim for TTD benefits from December 10, 2003, through April 13, 2005, and October 10, 2005, through the date of the hearing on November 16, 2005, based on the lack of a job search during those periods.  The employee appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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.  Substantial evidence supports the findings if, in the context of the entire record, "they 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

Medical Expense - Surgery

 

The compensation judge found that the right elbow surgery performed by Dr. Holm on April 14, 2005, was not reasonable and necessary.  Minn. Stat. ' 176.135, subd. 1(a) provides: AThe employer shall furnish any medical . . . treatment . . . as may reasonably be required at the time of the injury and any time thereafter to cure and relieve from the effects of the injury.@  The reasonableness and necessity of medical treatment under Minn. Stat. ' 176.135 is a question of fact for the compensation judge.  See Hopp v. Grist Mill, 499 N.W.2d 812, 48 W.C.D. 450 (Minn. 1993). "The employee bears the burden of proving that health provider services were reasonable and necessary."  Wylie v. Dan's Plumbing & Heating, 47 W.C.D. 235, 238 (W.C.C.A. 1992) (citing Wright v. Kimro, Inc., 34 W.C.D. 702 (W.C.C.A. 1982)).

 

The compensation judge relied upon Dr. McPherson=s opinion, rendered before the employee=s surgery, that the proposed ulnar nerve decompression was not reasonable and necessary.  The employee claims that Dr. McPherson=s opinion lacked foundation since he did not see the operative report after the surgery and his report indicated that he was not aware that the median and ulnar nerves were compressed.  That Dr. McPherson=s opinion was based on the employee=s condition before the surgery goes to the weight of his opinion, not its foundation.  Foundation is established by the competency of a witness to provide expert opinion.  Competency of a medical expert depends both on the extent of the scientific knowledge of the witness and Athe witness=s practical experience with the matter which is the subject of the offered testimony.@  Reinhardt v. Colton, 337 N.W.2d 88, 93 (Minn. 1983).  Sufficient knowledge of the subject matter can be obtained through personal knowledge, a hypothetical question, or testimony at the hearing.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978).  Dr. McPherson reviewed the employee=s medical records and examined the employee.  The information provided to Dr. McPherson, in addition to his examination of the employee and his medical background and experience, provided sufficient foundation for his opinion.

 

Dr. McPherson had opined that the employee=s symptoms were out of proportion to her objective examination findings, her pain was generalized rather than localized to the cubital tunnel area, and she had limited distal symptoms.  For these reasons, he recommended against surgery.  By contrast, Dr. Holm had opined that the surgery was reasonable and necessary given her symptoms and advised that the post-operative improvement would confirm that surgery was appropriate.  But the employee testified that her symptoms had worsened since the surgery, and the compensation judge noted that outcome.  The judge stated that she found Dr. McPherson=s opinion concerning surgery to be more convincing.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985), and the judge could reasonably rely on Dr. McPherson=s opinion when assessing whether the employee=s right elbow surgery was reasonable and necessary to cure or relieve the effects of the employee=s work injury.  Substantial evidence supports the compensation judge=s finding that the employee=s elbow surgery was not reasonable and necessary, and we affirm that finding.

 

Temporary Total Disability Benefits

 

The employee appeals the compensation judge=s finding that the employee was not entitled to temporary total disability benefits from December 10, 2003, through April 13, 2005, nor from October 10, 2005, through the date of the hearing.  Temporary total disability is found when an employee=s physical condition, together with her training, experience, and type of work available in her community cause the employee to be unable to obtain anything but sporadic employment at an insubstantial wage.  Fredenburg v. Control Data Corp., 311 N.W.2d 860, 34 W.C.D. 260 (Minn. 1981).  The employee=s loss of earning capacity must be causally related to the disability.  Arouni v. Kelleher Constr., 426 N.W.2d 860, 41 W.C.D. 42 (Minn. 1988).  An Ainjured employee proves total disability by showing that work the employee is capable of doing is unavailable, and unavailability is shown by a diligent job search to no avail.@  Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 848, 954 (Minn. 1988).  The determination of whether an employee=s job search is diligent is a question of fact for the compensation judge.  Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).

 

For purposes of presenting her arguments that she was entitled to temporary total disability benefits, the employee divided her claim into four time periods: December 10, 2003, through October 2, 2004, when the employee indicated that she thought she would be recalled for work; October 3, 2004, through November 21, 2004, when the employee conducted a documented job search; from November 22, 2004, through April 13, 2005, when the employee was waiting for surgery; and from October 10, 2005, through the date of the hearing.

 

The employee was injured on September 6, 2002, but was able to continue working until December 10, 2003, when she was laid off by the employer as part of a large economic lay-off.   She argues that, for at least a period of time, she reasonably believed she would be recalled to work for the employer and that, based on her medical records and testimony, she remained restricted in her ability to work as a result of her elbow injury.  It is not entirely clear, however, whether the employee was working without restrictions at the time of the December 2003 layoff.  In Dr. Holm=s chart note from his exam on October 23, 2003, (transcribed on November 10, 2003), he stated that he provided the employee with a tennis elbow strap and that she Ais working without restrictions currently.@  In Dr. Anderson=s letters and Areports of workability@ sent to the employer on November 19 and 26, 2002, December 4 and 18, 2002, and October 8 and 13, 2003, Dr. Anderson advised of the work restrictions that he had assigned to the employee at those times.  But there is no medical report in the record dated between November 10, 2003, and May 12, 2004, when the employee consulted a physician at HealthPartners, and reported right arm and elbow pain.  The first formal work restriction assigned in 2004 is listed in Dr. Holm=s chart note of June 26, 2004, when he assigned a 10 pound lifting limit to the employee=s right hand and recommended that she avoid heavy grasping with her right hand.

 

The employee claims that for at least for a period of time after her layoff, she reasonably believed she would be recalled to work for the employer.  AWhere there appears to be a reasonable possibility that an employee will return to work with the employer, it may not be necessary that the employee engage in an immediate search for employment to be eligible for total disability benefits.@  Goss v. Ford Motor Co., 55 W.C.D. 316, 237 (W.C.C.A. 1996), summarily aff=d (Minn. October 17, 1996).  Failure to conduct a job search may be reasonable where: A(1) the employee was not told he was required to seek work, (2) the employee did not have rehabilitation assistance, and (3) the employee had a reasonable expectation that he would return to work with the employer.@  Lundberg v. Bemidji Ambulance Serv., slip op. (W.C.C.A. May 22, 1998).  In this case, the employee was not off work because of her injury, but because she had been laid off for economic reasons.  While the employee had received a letter from the employer in January 2004 indicating that she could be recalled to work if business improved, no other communication was made between the employee and the employer regarding being recalled to work.  The compensation judge found the employee did not have a reasonable expectation of being recalled to work for the employer in the near future, considering the size of the lay-off and the length of time she had been off work.  Substantial evidence supports that finding.

 

The employee also claims that she made a diligent job search at least from October 3, 2004, through November 21, 2004, when she contacted 51 employers, and that even before those dates she had contacted potential employers.  A review of the job logs for that period of time indicates that the employee often made only one phone call per day and did not fill out any job applications.  The employee also argues that she did not begin a post-surgery job search until later in October 2005, since she was not informed of Dr. Holm=s report releasing her to work within restrictions until October 24, 2005, when that report was served upon her attorney.  The employee submitted job logs documenting the job search she conducted from November 2 through November 5, 2005, and also testified that she applied for jobs before and after that time period, even though she did not record all of her job contacts onto job logs.  The compensation judge stated in her memorandum that the employee had submitted job logs, but that her review of the logs indicated that Athe effort was sporadic with numerous contacts on some days and either no contacts or minimal contacts on other days.@^[5]  The compensation judge stated that the job search Alacked a consistent full-time effort.@  Based on the job logs submitted by the employee, the judge could reasonably conclude that the employee had not made a diligent job search.

 

The employee also argues that a job search was futile while surgery was pending from November 2004 through April 2005.  An injured employee seeking benefits need not make a diligent search for work when such a search would obviously be futile.  Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978).  The employee claims that a job search is always futile when surgery is pending, citing cases where this court affirmed, on substantial evidence grounds, a compensation judge=s finding that job searches were futile while the employees were awaiting surgery.  We disagree that the cited cases compel a conclusion that in this case a job search would have been futile while the employee=s surgery was pending.  Given this court=s standard of review, cases affirmed on substantial evidence grounds have little or no precedential value.  See Carlson v. Nabisco Brands, slip op. (W.C.C.A. May 2, 1994).  The employee indicated that she stopped looking for work in November 2004 because she had decided to have surgery.  Dr. Holm=s record of the employee=s December 10, 2004, visit, however, indicates that the employee was continuing a job search within her restrictions and does not mention surgery as a treatment option at that time.  Dr. Holm recommended a second opinion in February 2005 and did not finally propose surgery until March 2005.  The employee did not undergo surgery until April 14, 2005.  Under the circumstances of this case, the compensation judge could reasonably conclude that a job search from November 2004 through April 2005 would not have been futile on the basis of the employee awaiting a pending surgery.

 

Substantial evidence supports the compensation judge=s denial of temporary total disability benefits between December 10, 2003, and April 13, 2005, and between October 10, 2005, and the hearing date of November 16, 2005, and we affirm.