DAWN NORGREN, Employee, v. ARAMARK and LUMBERMEN=S MUT. INS./SPECIALTY RISK SERVS., INC., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 24, 2008

 

No. WC08-129

 

HEADNOTES

 

PERMANENT TOTAL DISABILITY - INSUBSTANTIAL INCOME.  Where the employee had worked regularly as an apartment complex manager following her work-related left shoulder injury, and where the employee=s compensation for that work, including the value of her free housing, was not insubstantial, the compensation judge=s award of permanent total disability benefits on a finding that the employee was Aunable to secure anything more than sporadic employment resulting in an insubstantial income,@ was clearly erroneous and unsupported by substantial evidence.

 

CAUSATION - CONSEQUENTIAL INJURY.  Where the employee had not alleged that her work as an apartment complex caretaker was a substantial contributing cause of her right shoulder condition, rendering that condition a new work injury, where she did not testify as to how the use of her dominant right arm changed in the performance of daily activities as a consequence of her work-related left shoulder injury, and where there was no evidence to support the expert opinion that the employee was Aforced@ to compensate significantly with her right arm for her left shoulder work injury, the compensation judge=s finding of a consequential injury in the nature of a right shoulder overuse syndrome was clearly erroneous and unsupported by substantial evidence.

 

Reversed.

 

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

Compensation Judge: Danny P. Kelly

 

Attorneys: Candice E. Hektner, Peterson & Hektner, Minneapolis, MN, for the Respondent.  James R. Waldhauser and Whitney L. Teel, Cousineau McGuire, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s finding that the employee is permanently and totally disabled and from the judge=s finding of a consequential right shoulder injury.  We reverse.

 

BACKGROUND

 

Dawn Norgren, the employee in this matter, was born on September 28, 1950.  She completed high school in 1968 and immediately thereafter completed a three month key-punch/data-entry program.  The employee=s work history includes several years of data entry work, followed by approximately fifteen years of employment as a dietary aide.  She has worked also as a caretaker of an apartment building, apparently beginning in 2004.^[1]

 

On or about February 27, 1989, while employed by National Business Systems in a data entry position, the employee developed a bilateral carpal tunnel condition for which she underwent surgery.  On November 13 ,1989, the employee=s treating orthopedist, Dr. William Laney, assessed a .5% whole body permanency rating for each upper extremity and permanently restricted the employee from doing any rapid repetitive activity with either hand or wrist.  The employee apparently stopped working in the data entry field following that final evaluation by Dr. Laney.

 

About fifteen years later, on November 3, 2004, the employee sustained an injury to her left shoulder while working full time as a dietary aide for Aramark Services [Aramark].^[2]  On that date, the employee was fifty-four years old and was earning from Aramark a weekly wage of $527.20.  The employee=s job duties at Aramark included serving breakfast and lunch to eighty residents at the Masonic Home.  She was responsible for preparing and cleaning the kitchen, serving in the dining areas, and preparing and delivering food items and meals to residents, staff, and visitors.  Physical requirements included sitting, standing, bending, lifting, pushing, pulling, and moving food equipment and supplies in excess of twenty-five pounds.

 

At the time of her work injury, on November 3, 2004, the employee was also employed in a second job as the resident property manager at the Moir Park Apartments in Bloomington, Minnesota.  She managed a forty-eight-unit apartment building, where her duties included showing and renting apartments, cleaning the laundry rooms and parking lot, vacuuming the hallways, and collecting rents.  The employee was compensated for her work with a one-bedroom apartment valued at $595.00, a $100.00 monthly supplement, and a $60.00 monthly phone service allowance.  The employee averaged an additional $256.00 per month for rental Aturnarounds@ - - any special cleaning of kitchens, bathrooms, or bedrooms that might be required when apartments were vacated.  The employee was paid on an hourly basis for these services.

 

Following her November 3, 2004, injury, the employee sought treatment from Dr. David Lang at the Quello Clinic in Burnsville.  Dr. Lang=s history indicates that the employee had had a long history of pain in her left shoulder off and on for about seven or eight years.  Dr. Lang had previously injected her shoulder in 1998, and Dr. Daniel Peterson had administered an injection in 2000.  Dr. Lang diagnosed left shoulder pain, a possible rotator cuff injury, and referred the employee for an MRI scan of her shoulder.  The MRI, performed on December 3, 2004, showed a very large rotator cuff tear with retraction of the rotator cuff to the area of the glenoid.

 

On December 16, 2004, the employee was evaluated by orthopedist Dr. Owen O=Neill at the request of Dr. Lang.  The employee provided Dr. O=Neill with a history of a fall at work followed by left shoulder pain made worse by overhead activities.  Dr. O=Neill assessed a massive left rotator cuff tear and recommended proceeding with arthroscopic debridement of the labrum and open rotator cuff repair with acromioplasty.  The employee=s last day of work at Aramark was January 13, 2005, and she underwent the proposed surgery on February 9, 2005.  Aramark and its insurer, Lumbermen=s Mutual Insurance/Specialty Risk Services [the insurer], commenced payment of temporary total disability benefits.

 

About five weeks after undergoing surgery, the employee commenced a physical therapy program at the Institute for Athletic Medicine.  On April 22, 2005, she began receiving rehabilitation assistance from qualified rehabilitation consultant [QRC] Debra Bourgeois.  On May 19, 2005, Dr. O=Neill noted that the employee continued to have a moderate amount of shoulder pain, and he recommended that she continue with her physical therapy program.  Also on that date, he released her to work with restrictions against lifting over five pounds with her left arm and against working above shoulder level.  Aramark could not accommodate these restrictions.

 

On May 20, 2005, the employee filed a claim petition alleging entitlement to temporary total disability benefits based upon a weekly wage of $766.72, a figure greater than that identified by the insurer.

 

In July and August of 2005, the employee developed increased pain in her shoulder, and on August 22, 2005, Dr. O=Neill obtained an MRI that indicated a massive full-thickness recurrent tear of the rotator cuff.  On January 20, 2006, the employee underwent a left shoulder arthroscopy with open rotator cuff repair and open revision of her previous rotator cuff repair.

 

In November of 2005, the parties entered into a stipulation for settlement regarding the issue of the employee=s date-of-injury weekly wage.  The employee claimed that her compensation benefits had been underpaid because the insurer had not considered her employment as a caretaker in determining her weekly wage.  The insurer, which had been uninformed of the employee=s second job, agreed that an adjustment to the employee=s compensation was required.  In their stipulation, the parties agreed to a combined weekly wage of $591.20 and a compensation rate of $394.00.

 

On March 28, 2006, the employee was seen at her family medical clinic by Dr. Steven Johnson, who noted that the employee had her shoulder in a sling to keep her arm from Apopping out.@  Dr. Johnson prescribed Vicodin for the employee=s pain, but for the ongoing prescription of chronic pain medicine he recommended that she see Dr. Teresa Gurin, a physical medicine and rehabilitation physician at Dr. O=Neill=s clinic.

 

The employee returned to see Dr. O=Neill on April 6, 2006.^[3]  According to a status report from QRC Bourgeois, the employee reported to Dr. O=Neill that she felt her left shoulder was doing better but that she had developed problems in her right shoulder over the past six to eight weeks.  Dr. O=Neill concluded that this was an overuse problem, and he explained that it is not uncommon for patients to develop an overuse problem with a limb opposite an injured one.  Because the employee had not been able to use her left arm for a lengthy period of time, it was, according to QRC Bourgeois, Dr. O=Neill=s belief that the employee=s problems on the right side were related to her work injury.  The doctor had recommended physical therapy for both of the employee=s shoulders.

 

On May 18, 2006, Dr. O=Neill recommended continued physical therapy and restriction from overhead work and from lifting greater than five pounds with the left arm.  Ms. Bourgeois noted at that time that the employee had been terminated by Aramark and would need to find a job with a new employer.  About four months later, on September 27, 2006, Dr. O=Neill continued to recommend physical therapy and that the employee see Dr. Teresa Gurin regarding pain management.  He indicated that the employee would need to find a sedentary job.

 

On December 6, 2006, the employee was seen by Dr. Gurin with complaints of shoulder pain, depression, and insomnia.  Dr. Gurin recommended that the employee begin using MS Contin and Neurontin for her pain.  On January 4, 2007, Dr. O=Neill opined that the employee had reached maximum medical improvement [MMI], having sustained a 9% permanent partial disability of the whole body related to her left shoulder.  He recommended permanent work restrictions against  overhead lifting and against repetitive lifting of over twenty pounds.  About this same time, a vocational assessment and transferable skills analysis of the employee and her employment circumstances was prepared for the employee=s QRC, and on  January 15, 2007, the employee and QRC Bourgeois prepared a Job Placement Plan and Agreement [JPPA] to begin investigating various sedentary jobs.

 

On January 16, 2007, the employee filed a claim petition, seeking payment of permanent total disability benefits commencing November 3, 2004, with credit to Aramark and the  insurer for benefits paid.  Aramark denied that the employee was permanently and totally disabled.

 

The employee returned to see Dr. Gurin on February 7, 2007, complaining of severe left shoulder pain and aches in the back of her head that radiated down her neck into both shoulders and her upper back.  She complained also of difficulty lifting her left arm and that she was now experiencing pain in her right arm due to her compensating for the left.  Dr. Gurin recommended that the employee continue taking her medications, that she return to work with limitations against overhead activities and against lifting over five pounds, and that she obtain an MRI of her right shoulder.  In her status report following Dr. Gurin=s evaluation, QRC Bourgeois opined,

 

Given Ms. Norgren=s current functional abilities, specifically a five pound weight restriction, I feel it will be quite difficult for her to find suitable employment.  Ms. Norgren did perform data entry activities in the past, but this led to the need for bilateral carpal tunnel surgery.  She does not believe she is capable of performing computer activities on more than an occasional basis.  It was necessary for her to leave the field of data entry due to developing bilateral carpal tunnel syndrome.

 

On February 13, 2007, the insurer served a Notice of Intention to Discontinue the employee=s temporary total disability benefits, on grounds that it had paid to the employee the statutory maximum of one hundred four weeks of benefits by February 2, 2007.

 

The employee obtained an MRI of her right shoulder on March 19, 2007, and returned to see Dr. O=Neill ten days later.  Dr. O=Neill diagnosed right shoulder impingement syndrome and rotator cuff tendonitis and injected the employee=s right shoulder.  Regarding the left shoulder, Dr. O=Neill recommended permanent restrictions against overhead activities and against lifting more than five pounds.

 

In a status report to the insurer on April 2, 2007, QRC Bourgeois summarized the  employee=s job search activities and what she believed to be the employee=s medical and vocational employment barriers.  It was her opinion that, Abased upon [the employee=s] age, level of education, restrictions, and transferable skills, . . . it is unlikely she will be able to find suitable employment.@  On April 10, 2007, the Social Security Administration informed the employee that she had been found to meet its medical requirements for disability benefits as of September 27, 2005.

 

The employee was evaluated at the request of the insurer by orthopedist Dr. Randall Norgard on April 18, 2007.  Dr. Norgard obtained a history, reviewed the employee=s medical records, and performed a physical examination.  In a report on that same date, Dr. Norgard diagnosed the following: (1) left shoulder work-related injury with subsequent left rotator cuff tear, sustained November 3, 2004; (2) status post left rotator cuff repair and left arthroscopic glenoid labral tear debridement, performed February 9, 2005; (3) recurrent left rotator cuff tear; (4) status post left recurrent rotator cuff tear repair, performed January 20, 2006; and (5) chronic pain syndrome.  He agreed with Dr. O=Neill that the employee had reached MMI on or about January 4, 2007, and that she was entitled to a 6% permanent partial disability rating related to her full thickness rotator cuff tear.  Because he believed that the employee had Aself limited@ her range of motion testing on his examination, he was unable to assess the employee=s loss of function.  Dr. Norgard was of the opinion that the employee was capable of full-time employment within restrictions against push/pull activities with the left upper extremity and against overhead work on the left side, with lifting limited to twenty pounds with both hands.  Except for medications prescribed by Dr. Gurin for the employee=s chronic pain syndrome, Dr. Norgard did not believe the employee required additional medical treatment for the left shoulder.

 

On June 28, 2007, Dr. O=Neill again assessed right shoulder rotator cuff tendonitis and impingement syndrome.  The employee underwent a second subacromial injection, and Dr. O=Neill discussed the possibility of an arthroscopic evaluation.  On August 16, 2007, the doctor noted that the employee=s right shoulder cortisone injection had provided two weeks of pain relief and he recommended that the employee proceed with arthroscopic surgery with subacromial decompression.  At that visit, the employee complained also of a painful left shoulder with fairly limited function.  Dr. O=Neill recommended that she continue with her five-pound lifting restriction, stating that he did not believe additional left shoulder surgery would be helpful to the employee.

 

About this same time, the employee obtained a ACertification of Dispute@ from the Department of Labor and Industry regarding the insurer=s refusal to pay for medical treatment for the employee=s right shoulder.  The insurer also proposed that the employee enroll in a computer software training course to obtain some basic computer skills.  The employee enrolled in such a program, but it was found to be unsuitable, and the parties eventually agreed that the employee would commence a forty-eight-hour program on November 13, 2007, at the Minnesota Resource Center [MRC] entitled AIntroduction to the Workplace.@

 

Also about this time, the employee evidently amended her claim petition to allege that she sustained either a new, Gillette-type, injury^[4] to her right shoulder, culminating on January 13, 2005, or an injury to the right shoulder consequent to her November 3, 2004, left shoulder injury.  Aramark and its insurer arranged for a second examination of the employee by Dr. Norgard on October 15, 2007.  Dr. Norgard diagnosed a right shoulder impingement syndrome, but he did not believe that it was causally related, either directly or indirectly, to the employee=s work-related injury of November 3, 2004.  While he agreed with Dr. O=Neill that the employee was a candidate for further right shoulder treatment, he opined that the employee was predisposed to the development of impingement syndrome because of preexisting acromial morphology and joint degeneration in her shoulders.  Dr. Norgard continued to find the employee capable of work activities within permanent restrictions against lifting over ten pounds with both hands and against repetitive push/pull activities and overhead work with both arms.

 

On November 16, 2007, after starting the program at MRC, the employee reported  to Dr. Gurin that she was having difficulty with both hands, including numbness and tingling that became constant with continued typing and computer work.  Dr. Gurin noted that the employee had previously undergone carpal tunnel release surgeries.  She recommended that the employee try computer voice recognition and an optical mouse, along with an ergonomic workplace setup.  She noted also that the employee was scheduled to undergo surgery for her right shoulder impingement syndrome on December 7, 2007.

 

On November 26, 2007, the employee was seen by Dr. Michael Forseth at the Hand Center at Summit Orthopedics.  Dr. Forseth diagnosed bilateral carpal tunnel syndrome and restricted the employee from repetitive gripping or grasping and from keying or typing.  Shortly thereafter, Aramark and its insurer approved a voice-activated software training program such as had been recommended by Dr. Gurin.  The QRC was looking into that program on the day of the hearing.

 

In a letter to the employee=s attorney on November 28, 2007, Dr. O=Neill stated:

 

[The employee] participated in heavy and repetitive work at her employment for greater than 16 years time.  I believe that her extended overhead work certainly was a causative factor in the development in the difficulties of both of her shoulders.  Her right shoulder, on its own merits, could reasonably be classified as a work related condition.  Secondarily, though, during her extended postoperative recovery from her left rotator cuff repair, she was forced to compensate significantly with her right arm.  I believe that this ultimately precipitat[ed] her impingement syndrome of her right arm.  I would apportion 50% of the need for her persistent treatment of her right shoulder to the compensatory use of right arm during her recovery time as well as a 50% of this to her chronic use of the arm at work.

 

The employee=s claim for benefits came on for hearing before a compensation judge on November 29, 2007.  As listed in the judge=s subsequent findings and order, issues presented for determination included the following: (1) whether the employee is entitled to permanent total disability benefits from November 3, 2004, through November 29, 2007, the date of hearing and continuing; (2) the employee=s weekly wage for the November 3, 2004, personal injury; (3) whether the employee is entitled to temporary partial disability benefits from February 5, 2007, through November 29, 2007, the date of the hearing and continuing; (4) whether the employee sustained a Gillette-type personal injury to the right shoulder culminating on January 13, 2005, arising out of and in the course of her employment with Aramark; (5) whether the employee sustained a personal injury to the right shoulder as a consequence of the November 3, 2004, personal injury; and (6) whether the medical treatment provided by Dr. O=Neill on August 16, 2007, is causally related and reasonable and necessary to cure and relieve the effects of the November 3, 2004, personal injury.  At hearing, the parties stipulated that the employee had sustained a work-related injury to her left shoulder on November 3, 2004, that she had been paid one hundred seven weeks of temporary total disability benefits, that her left shoulder condition is appropriately rated as a 9% permanent partial disability of the whole body, that all medical expenses relating to the left shoulder have been paid by the employer and insurer, and that the employee has satisfied the permanent partial disability thresholds for permanent total disability.

 

Evidence introduced at hearing included the employee=s medical and rehabilitation records and testimony from the employee and QRC Bourgeois.  The employee testified that, although she had not been able to return to work for Aramark since January 13, 2005, she continued to work at her caretaking position with Moir Park Apartments.  She testified that she had performed all of her duties as a caretaker, including her normal cleaning and turnarounds, for a year to a year and a half following her injury and that thereafter she had limited her duties to showing apartments, collecting rent, and performing administrative duties.  She testified that Moir Park paid another individual to perform cleaning duties.  With respect to her right shoulder, the employee testified that she first noticed symptoms about a year to a year and a half after her left shoulder injury.  She testified that, following her left shoulder injury, she had used her left arm and hand less and her dominant right arm more.  The QRC testified that, given the employee=s ongoing pain complaints and need for medication, her severe restrictions, and the recent flare-up of her carpal tunnel condition, she thought it highly unlikely that the employee would be able to find a position with a new employer that she would consider competitive employment.  Even if the employee were to complete the voice recognition software program, the QRC testified, that additional training would probably not lead to competitive gainful employment for the employee.  With respect to the employee=s position as a caretaker, the QRC testified that, although this is a job in the labor market and although the employee is being paid for her services, she did not look at this job as real employment.  She explained that the employee did not leave home to go to work and was not getting paid an hourly wage.  When asked by the compensation judge whether the employee=s earnings from the caretaker position would constitute insubstantial income in her opinion, the QRC stated that she believed they would, because the Social Security Administration allowed individuals to collect disability benefits and still earn up to $800.00 per month.

 

In a findings and order issued January 28, 2008, the compensation judge concluded that the employee had become permanently and totally disabled as of January 13, 2005, the last day she worked for Aramark.  He concluded also that the employee had sustained an injury to her right shoulder in the nature of overuse syndrome as a consequence of her November 3, 2004, left shoulder work injury and that the employer and insurer were liable for the claimed medical treatment for that right shoulder.  Lastly, the judge found that the employee=s wage on the date of her injury was $235.12 per week in her job as a property manager and $527.20 per week at Aramark.  Aramark and its insurer appeal from the judge=s findings of permanent total disability and of a consequential injury to the employee=s right shoulder.

 

STANDARD OF REVIEW

 

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 (2008).  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, 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 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

 

1.  Permanent Total Disability

 

At Finding 35, the compensation judge found that Athe employee=s physical disability in combination with the employee=s age, education, training, and experience caused the employee to be unable to secure anything more than sporadic employment resulting in insubstantial income.@  On that basis, at Finding 37, he concluded that the employee had established entitlement to permanent total disability benefits as of January 13, 2005, the date she was no longer able to perform her job at Aramark.  On appeal, Aramark and its insurer contend in part that the judge=s finding that the employee is unable to secure anything more than sporadic employment resulting in an insubstantial income is unsupported by the record.  They argue that the judge=s finding of permanent total disability rather than temporary partial disability essentially allows the employee to be paid twice for her work at Moir Park Apartments.  We agree that the judge=s finding of permanent total disability is unsupported by the record, and we conclude that the employee should instead be paid temporary partial disability benefits.

 

Under Minnesota Statutes section 176.101, subdivision 5, Apermanent total disability@ is defined in part as Aany . . . injury which totally and permanently incapacitates the employee from working at an occupation which brings the employee an income.@  In interpreting this language, the supreme court has stated that Aa person is totally disabled if his physical condition, in combination with his age, training, and experience, and the type of work available in his community, causes him to be unable to secure anything more than sporadic employment resulting in an insubstantial income.@  Schulte v. C.H. Peterson Constr. Co., 278 Minn. 79, 83, 153 N.W.2d 130, 133-34, 24 W.C.D. 290, 295 (1967).  This court has concluded further that A[p]ermanent total disability is primarily dependent on an employee=s vocational potential rather than his physical condition.@  Thompson v. Layne of Minn., 50 W.C.D. 84, 100 (W.C.C.A. 1993).  As the supreme court had long ago stated, A[s]poradic competence, occasional, intermittent, and much limited capacity to earn something somehow, does not reduce what is otherwise total to a partial disability.@  Green v. Schmahl, 202 Minn. 254, 256, 278 N.W. 157, 158 10 W.C.D. 209, 211 (1938). 

 

In the present case, the employee has regularly worked as a property manager for the Moir Park Apartments since at least April 2004.  According to her trial testimony, she continued to perform all aspects of her property manager position, including the regular cleaning and apartment turnarounds, for about a year to a year and a half after her left shoulder injury.  At some point she stopped performing the more physical duties, but she continued to be paid for other services performed for the employer.  Since that time, the employee has continued to receive, at minimum, a regular monthly income of $755.00.^[5]

 

No argument has been made that the employee=s employment at Moir Park Apartments was occasional, intermittent, or in any way sporadic.  QRC Bourgeois testified that the employee=s caretaker position is a job in the competitive labor market and that the employee is not limited in the number of hours she can work.  The conclusion that it is unlikely that the employee will be able to find a position with a new employer or that there may not be a market for her services does not alter the fact that the employee has maintained her caretaking position with reasonable continuity throughout the period of her claim.  And, while opportunity for sedentary employment may be limited for this employee, we see no reason to ignore the fact that she continues to hold a job that brings her an income.  Here, that income has varied between $755.00 and $1,000.00 per month.  We grant that whether an employee=s earnings represent an Ainsubstantial@ income is a question of fact for the compensation judge.  Sigurdson v. Joyce Int=l, slip op. (W.C.C.A. Sept. 22, 2005).  In the present case, however, we conclude that the employee=s income was not insubstantial, and we believe that the employee=s regular employment and regular earnings are inconsistent with the concept of total disability.  Therefore, under the facts of this case, we conclude that the judge=s finding that the employee has been Aunable to secure anything more than sporadic employment resulting in an insubstantial income@ is unsupported by substantial evidence in the record and must be reversed.

 

There appears to be no dispute, however, over whether the employee is entitled to temporary partial disability benefits.  The record is not entirely clear what the parties intended by their November 2005 settlement or what impact that settlement has on the employee=s entitlement to benefits in light of the judge=s later finding on the employee=s weekly wage.^[6]  The employee claimed, in the alternative to her claim for permanent total disability benefits, that she is entitled to temporary partial disability benefits following the insurer=s payment of one hundred four weeks of temporary total disability benefits.  Neither party contends that benefits paid between January 13, 2005, and February 2, 2007, were not properly calculated, and Aramark has not appealed from the judge=s finding on the employee=s weekly wage.  Rather than remand to the compensation judge the issue of the employee=s entitlement to temporary partial disability benefits, we direct the parties to resolve between themselves whatever benefits issues remain.  Should a dispute arise, the employee may file a claim petition.

 

2.  Consequential Right Shoulder Injury

 

As a general rule, an employer is liable for medical expenses if an employee=s need for treatment is due in substantial part to a work injury.  The work need not be the sole cause of the need for treatment, only a legal cause of that need - - that is, a substantial contributing cause.  Roman v. Minneapolis Street Ry. Co., 268 Minn. 367, 129 N.W.2d 550, 23 W.C.D. 573 (1974).  In the present case, the compensation judge determined that the employee=s right shoulder condition was compensable as a natural consequence of her work-related injury of November 3, 2004.  The judge accepted the opinion of Dr. O=Neill that, during the employee=s extended postoperative recovery from the left rotator cuff repair, Athe employee was forced to compensate significantly with her right arm,@ ultimately precipitating an overuse syndrome and impingement syndrome of the right arm.  Aramark and its insurer argue that Dr. O=Neill=s opinion is not based upon adequate foundation.  They contend that the employee did not testify to any activity that she normally did with her non-dominant left arm but now had to perform with her right.  The only basis for Dr. O=Neill=s opinion, they contend, is that the employee=s right shoulder started hurting subsequent to the left shoulder injury.  We agree that substantial evidence does not exist for the judge=s finding of a consequential injury to the right arm.

 

In the present case, the employee=s post-injury activities evidently consisted of her customary daily activities and her duties associated with her position at the Moir Park Apartments.  In Heinemann v. Independent Sch. Dist. No. 279, 63 W.C.D. 312 (W.C.C.A. 2003), this court held that the direct and natural consequence rule^[7] is applicable only in those cases in which the consequences for which benefits are sought did not result from a second and separate work injury.  Here, the employee has not alleged that her work as a caretaker was a substantial contributing cause of her right shoulder condition, so as to render that condition a new work injury.  She is apparently claiming that her customary daily activities, evidently intensified by her need to compensate for her injured left shoulder, precipitated an overuse syndrome and impingement syndrome in her right arm.

 

We note first of all that, while she testified to an inability to use her left arm to any significant degree following her first rotator cuff surgery on February 9, 2005, the employee did not testify as to how the use of her dominant right arm changed as a consequence of her surgery.  While it stands to reason that the employee used her right arm more following her left shoulder injury, she did not describe how she Acompensated significantly@ with her right arm for her work-related left shoulder injury.  The record does not support Dr. O=Neill=s rather broad assumption that the employee was Aforced@ to compensate significantly with her right arm.  Here, there is no basis for concluding that the employee used her dominant right arm any differently after her work injury than she did before her work injury.  Absent some testimony from the employee as to how her right arm was impacted by her inability to use her left arm, there is no factual basis for concluding that the employee=s left shoulder injury was a substantial contributing factor in the development of her right shoulder condition.  While we would ordinarily defer to the compensation judge=s choice between conflicting medical testimony, we need not uphold such a choice where Athe facts assumed by the expert in rendering his opinion are not supported by the evidence.@  Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  We therefore conclude that the judge=s finding of a consequential injury in the nature of an overuse syndrome is unsupported by substantial evidence in view of the entire record as submitted, and we reverse the judge=s finding of a consequential right shoulder injury.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).