JANICE L. REIHE, Employee, v. SNYDER DRUG STORE, and CHUBB & SON GROUP,  Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

DECEMBER 4, 2008

 

No. WC08-195

 

HEADNOTES

 

CAUSATION - GILLETTE INJURY; EVIDENCE - EXPERT MEDICAL OPINION.  Where it was supported by properly founded expert medical opinion, the compensation judge=s conclusion that the employee sustained a Gillette-type injury to her left upper extremity as claimed was not clearly erroneous and unsupported by substantial evidence.

 

TEMPORARY TOTAL DISABILITY - RECOMMENCEMENT; STATUTES CONSTRUED - MINN. STAT. ' 176.101, SUBD. 1(i).  Where the employee had refused an offer of suitable work by the employer, where the employee subsequently sought temporary total disability benefits while she was recovering from surgery consequent to her work injury, and where the refused offer of work was made prior to commencement of temporary total disability benefits, the compensation judge=s award of temporary total disability benefits was, pursuant to the supreme court=s decision in Falls v. Coca Cola Enters., Inc., 726 N.W.2d 96, 67 W.C. D. 22 (Minn. 2007), not barred by provisions of Minnesota Statutes section 176.101, subdivision 1(i), that preclude Arecommencement@ of benefits after an employee=s refusal of suitable work.

 

Affirmed.

 

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

Compensation Judge: Patricia J. Milun

 

Attorneys: William H. Getts, Minneapolis, MN, for the Respondent.  D. Jeffrey Pricco, Aafedt, Forde, Gray, Monson, & Hager, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge=s determination that the employee sustained a Gillette-type injury^[1] to her left upper extremity culminating in disability on or about August 11, 2006, and from the judge=s award of temporary total disability benefits after May 20, 2007.  We affirm.

 

BACKGROUND

 

Janice Reihe [the employee] began working as a cashier for Ideal Drug in the 1990s.  In 2000, Ideal Drug was purchased by Snyder Drug Stores, and the employee continued working for Snyder [the employer] until the store she was working at closed in November 2006.  The employee worked as a service associate about thirty-two hours per week at duties including general cashiering, cashing checks, issuing money orders and money grams, unloading and stocking product, and counting inventory.  She performed her check cashing and general cashiering duties daily, and the number of transactions varied each day.  Product deliveries were made to the store each week, but the quantity of goods and the time necessary to shelve them is a matter of dispute between the parties.

 

The employee first noticed left elbow and left hand symptoms in August of 2006 while performing her job duties as a check cashier.  According to her later trial testimony, the employee began noticing a shock-like feeling in her left elbow and tingling and numbness in the middle, ring, and little fingers of her left hand while bracing her left elbow in the process of counting money out in a check cashing transaction.  About a week after first noticing the symptoms, while seeing her family physician, Dr. Bula Roy, on an unrelated matter on August 11, 2006, the employee complained of having some tingling in her left hand associated with her work as a cashier.  The employee advised Dr. Roy that she noticed her symptoms only at work and not on weekends.  Dr. Roy offered no specific diagnosis but recommended Abetter posturing and [a] wrist splint when she works at her cashier=s job.@  On August 11, 2006, the employee was fifty-six years old and was earning a weekly wage of $366.54.

 

On October 17, 2006, the employee was seen by occupational medicine specialist Dr. Margo Hutchison.  Dr. Hutchison noted that the employee worked as a cashier and stocker performing Aa lot of repetitive work.@  The employee described a gradual onset of left elbow pain and persistent numbness in her left hand since August, with a lessening of symptoms on the weekends.  Dr. Hutchison diagnosed a lesion of the ulnar nerve, prescribed an elbow sleeve to be worn at all times, and referred the employee for physical therapy.  She restricted the employee=s lifting/carrying and pushing/pulling activities, and she recommended against use of the left arm repetitively more than ten minutes each hour.

 

The employee continued to perform all of her job duties with the employer up until the closing of her store on November 26, 2006.  As the date of the store closing approached, the employee discussed continued employment at a different Snyder store location with district manager Dan Markfort and store assistant manager Karen Hunt.  When the store closed, the employee stopped working and, rather than transfer to a different store, began collecting unemployment compensation.

 

The employee was referred by Dr. Hutchison to Metropolitan Hand Surgery Associates, where she was seen by Dr. Michael Forseth on November 30, 2006.  The employee told Dr. Forseth that she had been employed as a cashier, cashing checks for approximately five years, that her store had recently closed, and that she was no longer working.  She described symptoms of left elbow pain and numbness and tingling that had begun in August.  She reported that an elbow sleeve had provided some relief but that she had received no relief from physical therapy.  The employee stated that her symptoms had improved since she had stopped working but that she still noticed symptoms as the day progressed.  Dr. Forseth diagnosed left upper extremity cubital tunnel syndrome and ordered an EMG.  The EMG was performed on February 6, 2007, and was read to be consistent with a clinical diagnosis of left ulnar compressive neuropathy at the elbow.  On March 8, 2007, Dr. Forseth recommended a cubital tunnel decompression and possible ulnar nerve transposition, noting in his chart on April 2, 2007, his belief that the employee=s condition was Asignificantly related to her work duties.@

 

On April 13, 2007, the employee filed a claim petition, alleging that she had sustained an injury to her left arm on August 11, 2006, and seeking payment of temporary total disability benefits continuing from November 26, 2006, together with payment of medical and rehabilitation benefits.  In an answer to the claim petition filed on May 3, 2007, the employer and its insurer, Chubb Group of Insurance Companies [the insurer], denied liability for the employee=s left arm injury.

 

In May of 2007, the insurer evidently retained Stubbe & Associates to provide vocational rehabilitation services to the employee.  QRC Ann Moberg conducted a rehabilitation consultation on May 17, 2007, and found the employee eligible for rehabilitation services.  QRC Moberg noted that Dr. Hutchison had released the employee to return to work with restrictions but that Dr. Forseth was recommending surgery.  She indicated that she sought to facilitate the recommended surgery and to return the employee to a job with the employer.  She noted also that the employee did not have a GED and that she would need to obtain one in order to find alternative employment if a job with the employer proved unavailable.  QRC Moberg provided services to the employee until October 8, 2007, when the insurer withdrew its approval.  At that point, the employee was referred to the Vocational Rehabilitation Unit at the Department of Labor and Industry.

 

The employee was examined at the request of the employer and insurer by orthopedist Dr. Scott McPherson on July 19, 2007.  Dr. McPherson reviewed the employee=s discovery deposition and medical records, obtained a history from the employee, and performed an examination.  He agreed with Dr. Forseth=s diagnosis and recommendation of surgery, but he did not believe that the employee=s work activities had significantly contributed to her left cubital tunnel syndrome.  He concluded that those work activities involved substantial task rotation and were no more Apredisposing@ to cubital tunnel syndrome than were normal activities of daily living.  Dr. McPherson found the employee=s condition to be a Apersonal developmental-type problem,@ and he did not believe that her work activities had changed the natural history of her condition or had led to her need for surgery.  He recommended that the employee refrain from prolonged flexion of the left elbow and from activities requiring repetitive extending or flexing of the elbow.  He further restricted the employee from lifting more than twenty pounds rarely, more than ten pounds occasionally, or more than five pounds frequently.

 

The employee=s attorney requested causation opinions from both Dr. Hutchison and Dr. Forseth, and he provided the doctors with Dr. McPherson=s IME report and a Afact statement@ regarding the case.  In a letter to the employee=s attorney on September 14, 2007, Dr. Hutchison opined that the employee=s work for the employer was a substantial contributing factor in the development of her left ulnar neuropathy and her need for the surgery being recommended by Dr. Forseth.  On October 4, 2007, Dr. Forseth expressed his opinion that the employee=s cubital tunnel syndrome had been significantly related to and aggravated by her work duties at the employer.  He based his opinion on the fact statement provided by the employee=s attorney, as well as on the history that he had received from the employee.  Dr. Forseth noted that, while he agreed with Dr. McPherson that cubital tunnel syndrome can be a developmental problem, he disagreed with the conclusion that the employee=s work was not a significant aggravating factor in this case.

 

The employee received vocational rehabilitation services from QRC Rachel Sayre through the Department of Labor and Industry=s Vocational Rehabilitation Unit between October 15, 2007, and December 14, 2007.  During this period, the employee participated in job search and placement activities with the assistance of QRC Sayre.  The employee=s rehabilitation plan was terminated on December 14, 2007, evidently due to the parties= verbal agreement to a stipulated settlement of the employee=s claims.

 

On February 12, 2008, the employee underwent a left elbow ulnar nerve decompression performed by Dr. Forseth.  Thereafter the employee remained under the care of Dr. Forseth, and as of the April 11, 2008, hearing date she had not yet been released to return to work.

 

At hearing on October 19, 2007, and April 11, 2008, the employee claimed entitlement to various benefits as a result of a Gillette-type left upper extremity injury culminating in disability on or about August 11, 2006.  The employee claimed that her work activities were repetitive and that the manner in which she needed to perform her duties contributed to her left elbow condition.  The employer and insurer contended that the employee=s work activities were varied in nature and did not contribute to her left elbow condition.  Witnesses included the employee, loss prevention manager Kelly Heuer, district manager Dan Markfort, and assistant store manager Karen Hunt.  Other evidence included the employee=s medical and rehabilitation records, medical reports from independent examiner Dr. Scott McPherson, a nine-month cashier transaction analysis, and several photographs of the employee=s workplace.

 

In a decision issued on June 16, 2008, and amended on June 23, 2008, the compensation judge concluded in part as follows:  (1) that the employee sustained a Gillette injury to her left upper extremity culminating on or about August 11, 2006; (2) that the employee refused an offer of employment from the employer around the time of the store closing and was therefore not entitled to temporary total disability benefits between November 26, 2006, and May 21, 2007; (3) that the employee fully cooperated with the rehabilitation plan and services provided to her between May 21, 2007, and December 14, 2007, and was entitled to temporary total disability benefits during that time; (4) that during the period of December 15, 2007, to February 11, 2008, the employee failed to prove that she performed a diligent job search within her restrictions and was therefore not entitled to temporary total disability benefits during that period; (5) that the employee=s work injury was a substantial contributing factor to her need for surgery on February 12, 2008; and (6) that the employee was entitled to temporary total disability benefits continuing from February 12, 2008, to the date of hearing.  The employer and insurer appeal.

 

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. Gillette Injury

 

The compensation judge concluded that the employee sustained a Gillette-type injury culminating on or about August 11, 2006.  She based her determination on the employee=s hearing testimony and its consistency with the medical records of her treating doctors and on the medical opinions of Drs. Hutchison and Forseth.  The employer and insurer argue that these treating doctors based their opinions on the employee=s contention that her work activities were very repetitive, when, in fact, the evidence shows that the employee=s work activities were not repetitive.  They contend that both Dr. Hutchison and Dr. Forseth based their opinions on an inaccurate or exaggerated description of the employee=s job duties and that therefore those opinions lack proper foundation.  By contrast, they argue, Dr. McPherson did have proper foundation for his opinion that the employee=s work activities were not of the type that would normally cause cubital tunnel syndrome, because those activities permitted a fair amount of task rotation and did not require stressful or prolonged extension or flexion-type activities.  Because Dr. McPherson=s opinion was supported by the evidence of record and the opinions of the treating physicians were not, they contend, the judge erred in finding that the employee sustained a Gillette-type injury.  We are not persuaded.

 

To establish a Gillette injury, an employee must Aprove a causal connection between her ordinary work and ensuing disability.@  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  The determination of a Gillette injury Aprimarily depends on medical evidence,@ id., citing Marose v. Maislin Transport., 413 N.W.2d 507, 512 (Minn. 1987).  This case turns largely upon the compensation judge=s resolution of conflicting medical expert opinion.

 

The compensation judge specifically accepted the medical opinions of Dr. Hutchison and Dr. Forseth, the employee=s treating doctors, over the medical opinion of Dr. McPherson.  In her memorandum, the judge explained as follows:

 

The work activities at the [employer] were repetitive work activities for the employee.  The Court has viewed the medical records in the context of the entire testimonial evidence.  Some of the employee=s testimony was not consistent with the testimony of Daniel Markfort on re-stocking inventory and cashing checks.  However, the critical part of the employee=s testimony was consistent with the medical records by her treating Doctors.  The critical part of her testimony was that the employee medically treated specific symptoms that arose while performing repetitive job activities with the employer.  It is more likely than not that these symptoms arose out of the repetitive work activities performed thirty[-]two hours a week.  These symptoms never abated.  The work injury is more likely than not a permanent aggravation to the left ulnar nerve and the employee is in need of work restrictions and surgical treatment for left ulnar compressive neuropathy at the elbow.

 

Dr. Hutchison and Dr. Forseth treated the employee over an extended period of time, took multiple histories from the employee, and discussed her work activities with her.  Both doctors were provided with a copy of Dr. McPherson=s report of July 19, 2007.  As implied in the judge=s memorandum, there may be inconsistencies and inaccuracies with respect to the facts relied upon by the medical experts, and they may have lacked complete knowledge about every aspect of the employee=s work activities.  These concerns, however, go to the persuasiveness or weight to be afforded the medical opinions offered, not to their foundation.  Given the entire record, as submitted, the judge=s opportunity to observe the witnesses= testimony, and the explanation provided by the judge in her memorandum, we find no grounds for reversal on foundational grounds.

 

Whether the employee proved a Gillette injury is a question of fact for the compensation judge.  See, e.g., Carlson v. Minneapolis Pub. Hous. Auth., slip op. (W.C.C.A. Jun. 19, 1977).  As the trier of fact, it is the compensation judge=s responsibility to resolve conflicts in expert medical testimony.  Where there is adequate foundation for the opinions adopted by the judge, this court normally upholds the compensation judge=s choice among medical experts.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) ("the trier of fact's choice between experts whose testimony conflicts is usually upheld [unless] the facts assumed by the expert in rendering his opinion are not supported by the evidence").  On the facts of this case, we cannot say the compensation judge erred in accepting the causation opinions of Dr. Hutchison and Dr. Forseth.  We conclude that, based on the medical evidence of the record documenting the employee=s symptoms  and medical treatment, it was reasonable for the compensation judge to rely on those opinions in concluding that the employee sustained a Gillette injury to her left upper extremity on or about August 11, 2006, as a result of her work activities with the employer.  Therefore we affirm that conclusion.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

2. Temporary Total Disability

 

The compensation judge found that the employee had physical restrictions attributable to her work-related injury on and after November 26, 2006.  From that date until May 21, 2007, however, the judge found that the employee had stopped working, was paid unemployment benefits, and had declined the employer=s offer of continued employment at other store locations.  The judge found that the offered jobs were within the employee=s restrictions, and consequently she denied the employee=s claim for temporary total disability benefits during that time frame.  The employee has not appealed from that finding.  The employer and insurer argue, however, that, given this unappealed finding, the judge erred in finding the employee entitled to temporary total disability benefits after May 20, 2007.  Citing Minnesota Statutes section 176.101, subdivision 1(i), the employer and insurer contend that, once benefits have been denied by reason of the employee=s refusal of an offer of employment, benefits may not be recommenced under the statute.^[2]  We disagree.

 

The employer and insurer=s argument here has previously been addressed by the supreme court in Falls v. Coca Cola Enters., Inc., 726 N.W.2d 96, 67 W.C. D. 22 (Minn. 2007).  In Falls, the compensation judge had found that the employee refused suitable employment and was therefore barred by Minnesota Statutes section 176.101, subdivision 1(i), from making any future claims for temporary total disability benefits.  This court reversed the judge=s holding and the supreme court affirmed our decision, holding that the statute, which calls for the cessation of temporary total disability compensation if an employee receives an offer of suitable work, does not apply to job offers made prior to the commencement of the temporary total disability compensation.  In the present case, because the employer never commenced payment of temporary total disability benefits, the employer=s offer of gainful employment in November of 2006 does not preclude the employee=s later claim for benefits on other grounds.  Here, substantial evidence supports the judge=s award of temporary total disability benefits from May 21, 2007, through December 14, 2007, during which time the employee cooperated with her rehabilitation plan,^[3] and from February 12, 2008, to the date of hearing, during which time the employee was medically disabled from working because of her ulnar nerve decompression surgery.  The judge=s award of temporary total disability benefits is therefore affirmed.