DEWANE BELANGER, Employee, v. BOISE CASCADE CORP., SELF-INSURED, Employer/Appellant, and ORTHOPAEDIC ASSOCS. OF DULUTH, and FALLS MEM’L HOSP., Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
JUNE 24, 2009
No. WC09-101
HEADNOTES
CAUSATION - GILLETTE INJURY. Substantial evidence supports the compensation judge’s determination that the employee sustained a Gillette injury to his left upper extremity.
JOB SEARCH - SUBSTANTIAL EVIDENCE. - Substantial evidence supports the finding that the employee engaged in a reasonably diligent job search.
TEMPORARY TOTAL DISABILITY - RETIREMENT. Substantial evidence supports the compensation judge’s determination that the employee had not withdrawn from the labor market by retirement.
Affirmed.
Determined by: Stofferahn, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Jerome G. Arnold
Attorneys: Lorrie L. Bescheinen, Borkon, Ramstead, Mariani, Fishman & Carp, Minneapolis, MN, for the Respondent. Edward Q. Cassidy and Lori-Ann C. Jones, Fredrikson & Byron, Minneapolis, MN, for the Appellants.
OPINION
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the compensation judge’s determination that the employee sustained a Gillette[1] injury to his left shoulder and from the compensation judge’s award of temporary total disability benefits. We affirm.
BACKGROUND
Dewane Belanger, the employee, began working for Boise Cascade Corporation in International Falls, in July 1990. In 1991 the employee began operating a piece of heavy equipment generally referred to as a Liebherr; Liebherr is the machine’s manufacturer. Operation of the Liebherr was the employee’s only job at Boise until February 2006.
The Liebherr loads and unloads timber on trucks, using a backhoe-type arm and bucket. The operator sits inside a closed cab and uses hand controls to rotate the machine, move the arm, and control the bucket. The cab and arm are essentially one unit and swivel on a pivot on a wheeled base. Getting into the cab required climbing a ladder attached to the machine. The employee testified that he had to climb up 13 steps to get into the cab and that he generally used his arms to help pull himself up the ladder.
The parties disagreed at the hearing as to the physical activity needed to operate the Liebherr. The employer presented a video purporting to demonstrate the way the machine was operated. In the video, the operator uses a number of joysticks which are mounted on two consoles. The operator’s arms rest on padded armrests attached to the operator’s chair. Movement of the arms is primarily limited to the hands and forearms. No movement of the upper arms is demonstrated in the video.
The employee disagreed with the video’s depiction of the machine’s operation. His primary disagreement was with the movement of his arms necessary to operate the Liebherr. According to the employee, unloading a truck required swinging the arm 180 degrees and controlling the swing was done with joysticks operated with the left hand. To keep up with the truck traffic, the employee needed to swing the arm at top speed for much of the sideways arc and then slow it down just before the stop. The employee testified that “feathering” the arm in this way involved using his entire left arm.
Sometime before February 2006, the employee began noticing pain in his left shoulder. The pain was worse during the work week and would diminish over the weekend. The employee testified that he tried to favor his left arm in activities, but stated that after a while his left shoulder was not improving over the weekend and the pain was generally getting worse. In early February 2006, he told his forearm that his shoulder was getting worse and that he attributed his shoulder symptoms to the use of his arm on the job.
The employee went to see the company nurse on February 6, 2006. The chart notes indicated that the employee, “states he can’t lift left arm-thinks this is related to running the LeBarr [sic] with joysticks.” The nurse made an appointment for the employee to see Dr. Joel Zamzow, a physician at Orthopaedic Associates of Duluth.
The employee saw Dr. Zamzow on February 9, 2006, in International Falls. Dr. Zamzow recorded in his notes that the employee “has had a history off and on of pain for two years, noticed directly at work relating to the job he does at Boise. He unloads wood with a backhoe and does a lot of lever control.” On examination, Dr. Zamzow found weakness in the left shoulder with external rotation. Dr. Zamzow concluded that the employee either had impingement syndrome or a rotator cuff tear and he recommended an arthrogram for further diagnosis. The arthrogram showed no evidence of a rotator cuff tear.
The employee was taken off work by Dr. Zamzow but released to work by Dr. Talsness, a company doctor he saw at Boise on February 16. Dr. Talsness restricted the employee to light use of the left hand. Boise placed the employee in a light duty position, operating a loader to clean landings and remove snow. The employee testified he had no problems doing this job and he continued to work at this assignment until December 2006.
The employee continued to treat with Dr. Zamzow during this time. The employee had physical therapy at Dr. Zamzow’s recommendation between March and July 2006. He also received a cortisone injection in the spring of 2006. Dr. Zamzow noted in May 2006 that the injection had helped the employee’s symptoms “about 70%.” Dr. Zamzow determined at that time that he would not recommend arthroscopic surgery for the employee. When he saw the employee again on August 10, 2006, he continued to be of the opinion that non-operative care was appropriate.
Boise advised the employee on December 19, 2006, that there was no longer any work for him. The employee has not worked since that date.
The employee was 62 years old when he was separated from Boise. He was a high school graduate and his work history before Boise was logging and construction. The employee had work restrictions of avoiding repetitive overhead work. The employee testified that after his separation from Boise he went to the employment office in International Falls to check the postings. The employee described the postings as being for “woods work” and stated “they all know me, they know why I am not there loading their trucks. Well, they’re not going to monkey with me.”
The employee also stated that there were listings for office work but he did not pursue those listings because he had no computer or office experience. The employee applied for Social Security disability benefits in April 2007. As of the date of the hearing, his claim was still pending and the employee had been placed on retirement benefits.
The employee filed a claim petition in August 2007, alleging that he was entitled to workers’ compensation benefits as a result of a Gillette injury at Boise on February 6, 2006. In its answer, Boise denied liability.
In response to inquiries from the employee’s attorneys, Dr. Zamzow stated in a February 23, 2007, letter that the employee’s diagnosis was left shoulder impingement syndrome. He stated further, “I believe, mostly likely, that the work was a substantial contributing causation of his diagnosed condition . . . . I believe that the patient’s injury is a result of a Gillette-type of injury.” Dr. Zamzow reiterated his opinion subsequently, including in an August 14, 2008, letter in which he stated he had reviewed the video prepared by Boise.
Dr. Tilok Ghose evaluated the employee on behalf of the employer on November 16, 2007. In addition to examining the employee, Dr. Ghose reviewed the video. His diagnosis was a mild impingement syndrome. He concluded the employee’s job, as shown in the video, was not a causative factor in the employee’s condition because the job did not require repetitive movement involving the shoulder. Dr. Ghose’s work restrictions were consistent with those set by Dr. Zamzow.
The employee’s claim was heard by Compensation Judge Jerome Arnold on October 3, 2008. In his findings and order of November 25, 2008, the compensation judge determined that the employee sustained a Gillette injury to his left shoulder in the nature of impingement syndrome. The compensation judge also found that the employee was entitled to temporary total disability benefits from December 19, 2006. The employer appeals.
DECISION
1. Gillette Injury
The employer argues that the compensation judge’s finding of a Gillette injury is not supported by substantial evidence. The employer contends that Dr. Zamzow’s opinion lacked the foundation needed for the compensation judge to rely on it and that the compensation judge should have adopted Dr. Ghose’s opinion.
Dr. Zamzow and Dr. Ghose had the same information for foundation for their causation opinions - - the employee’s history, the medical records, and the video prepared by Boise. Dr. Zamzow and Dr. Ghose came to different opinions after considering this information. Further, at the hearing, the employee testified that, contrary to Dr. Ghose’s understanding, his job required use of his entire left arm. The compensation judge accepted this testimony and found Dr. Zamzow’s opinion to be most consistent with the employee’s description of his work activity. We conclude Dr. Zamzow’s opinion had adequate foundation for acceptance by the compensation judge. Scott v. Southview Chevrolet, 267 N.W.2d 185, 30 W.C.D. 426 (Minn. 1978); Smith v. Quebecor Printing, Inc., 63 W.C.D. 566 (W.C.C.A. 2003).
It is the compensation judge’s role to choose between competing medical opinions. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). This court will generally affirm a compensation judge’s decision based on that choice where the opinion relied upon has adequate foundation. Voshage v. State (MNSCU), Winona State Univ., 65 W.C.D. 167 (W.C.C.A. 2004). We affirm the compensation judge’s decision on this issue.
2. Temporary Total Disability
The employer claims that the compensation judge erred in awarding temporary total disability benefits because the employee failed to engage in a diligent job search. Further, the employer alleges the employee was not eligible for wage loss benefits because he had withdrawn from the labor market by retirement.
An injured employee who is able to work must generally conduct a reasonably diligent job search to establish entitlement to temporary total disability benefits. Redgate v. Sroga’s Standard Service, 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988). The reasonableness of a job search is dependent on all of the facts and circumstances in the case and the reasonableness of the job search is viewed in the context of the rehabilitation assistance provided to the employee. Okia v. David Herman Health Care Ctr., 38 W.C.D. 261 (W.C.C.A. 1985). Finally, the determination of whether an employee’s job search is diligent is a question of fact for the compensation judge. Woods Crocker v. HMS Host Corp., No. WC06-304 (W.C.C.A. June 14, 2007).
In the present case, the compensation judge noted that the employee had received no rehabilitation assistance, that he had few transferable skills, and that his work history was limited to construction and logging. Given those factors and the employee’s geographic area, the compensation judge found that the employee’s visits to the employment office to be a reasonable job search. There was no evidence presented at the hearing as to potential employment which would otherwise be available to the employee. We cannot conclude, on the basis of this evidence, that the compensation judge erred in his determination.
The argument that the employee had retired from the labor market is based in part on conversations the employee had with Dr. Talsness in June 2006 and with Dr. Zamzow in April 2006. In the conversation with Dr. Talsness, as set forth in the medical records, the employee said that he “would like to retire but can’t afford insurance premiums.” The employee apparently told Dr. Zamzow in April 2006 that he would like to retire in the summer of 2006. We note that the employee was still working at Boise at the time of these conversations and continued to work there until December 2006 when he was separated from employment, not by his choice but at the decision of his employer. An employee’s statement of his desire to retire in these circumstances is not equivalent to a withdrawal from the labor market.
The employer introduced the employee’s Social Security file into evidence. The file shows that the employee applied only for disability benefits. In his memorandum, the compensation judge commented, “His inability to work due to his left shoulder condition required him to make financial decisions to survive economically as his claim of a work injury had been denied. The employee has sustained his burden of rebutting any applicable presumption of retirement contained at Minn. Stat. 176.101, subd. 8.”
We agree with the compensation judge that the evidence does not support a finding that the employee had retired. The compensation judge’s decision is affirmed in its entirety.
[1] Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).