SHERRI A. NELSON, Employee/Appellant, v. HORMEL FOODS CORP., SELF-INSURED/ COTTINGHAM & BUTLER CLAIMS SERVS., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 6, 2014
No. WC13-5603
HEADNOTES
CAUSATION - SUBSTANTIAL EVIDENCE. Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s finding that the employee’s cervical condition was not causally related to her work activities for the employer.
TEMPORARY TOTAL DISABILITY - SUBSTANTIAL EVIDENCE. Substantial evidence supports the compensation judge’s determination that the employee’s chiropractor took her off work due to her non-compensable cervical condition and the judge’s denial of temporary total disability from December 14, 2010, to February 2, 2011.
WAGES - CALCULATION. The compensation judge erred in excluding the employee’s earnings up to and including the date of injury in calculating the employee’s pre-injury weekly wage, and the judge’s findings are modified to reflect a pre-injury weekly wage of $503.89 instead of $501.61.
Affirmed as modified.
Determined by: Cervantes, J., Wilson, J., and Hall, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Donaldson V. Lawhead, Lawhead Law Offices, Austin, MN, for the Appellant. Elizabeth Benson Powell, O’Meara, Leer, Wagner & Kohl, Minneapolis, MN, for the Respondent.
OPINION
MANUEL J. CERVANTES, Judge
The employee appeals from the compensation judge’s determination that the employee’s cervical condition is not causally related to her work activities, and the judge’s related denial of permanent partial disability for the neck and denial of payment for treatment to the neck, upper back, and shoulders; the judge’s finding that the employee was not entitled to temporary total disability benefits from December 14, 2010 through February 2, 2011; the judge’s finding that the employee failed to establish entitlement to reimbursement for Celexa (citalopram), Effexor (venlafaxine), Cymbalta, Flexeril (cyclobenzaprine), and nortriptyline; and all pain medications prescribed after August 17, 2011; and the compensation judge’s determination that the employee’s pre-injury wage was $501.61. We affirm as modified.
BACKGROUND
The employee began working for Hormel Foods Corporation in 1986. She began working on the redate and pre-price lines at the Austin, Minnesota plant in 2004. Beginning in 2008, the employee began experiencing problems with her hands and wrists, including a right middle trigger finger, and pain and tingling in her thumbs, index, and middle fingers. The self-insured employer admitted a right middle trigger finger injury on May 19, 2008, and bilateral carpal tunnel syndrome culminating on January 8, 2010. (T. 23.)
On March 2, 2010, the employee sought treatment from Dr. Michael Toth, an osteopathic physician at the Austin Medical Center. The doctor diagnosed bilateral hand and wrist tenosynovitis with mild nerve irritation. Dr. Toth advised the employee to rotate job activities frequently, to avoid highly repetitive use of the hands, and to avoid pinching or firm gripping with the hands. The employee returned on March 16, 2010, noting persistent hand problems. Dr. Toth also noted some upper back tenderness which he treated with osteopathic manipulation.
On March 25, 2010, Dr. Toth noted the employee’s upper back was irritated after manipulation. He referred the employee to physical therapy at the Hormel Medical Department for treatment of her upper back symptoms, and continued her work restrictions. The employee returned to Dr. Toth for follow-up on April 8, 2010. Dr. Toth diagnosed tenosynovitis of the hands and wrists and a thoracic region sprain. He suspected that some of the employee’s hand issues were related to her upper back condition. On examination, the employee was somewhat tight in the neck with slightly decreased end range of motion, and remained quite tight in the upper and middle thoracic areas. Dr. Toth noted the employee’s left hand seemed to have worsened even though she was doing light-duty work. On April 9, 2010, the employee was seen by a case manager at the Hormel Medical Department reporting her co-workers were giving her a hard time about being on light duty.
The employee was seen by Michael Gosha, a physical therapist in the Hormel Medical Department, between April 22 and May 27, 2010. At the first visit, the employee described lower cervical, upper trapezius, and parascapular discomfort which she associated with her hand and wrist symptoms. By April 29, 2010, the employee was noting improvement in her neck and upper back symptoms. On examination the employee had normal neck mobility with full range of motion in the upper extremities. On May 3, 2010, Mr. Gosha noted the employee had full cervical range of motion without radicular findings, normal and symmetrical upper extremity strength, and intact reflexes. Previously noted hypertonicity in the neck and upper back muscles had resolved.
The employee returned for follow-up with Dr. Toth on May 6, 2010. Dr. Toth noted the employee had apparently just started a new job that handled light product in a fairly repetitive fashion. She continued to experience nerve irritation and numbness in the hands, and was referred for a neurology consultation. Her neck, however, seemed to be doing well, and her upper thoracic irritation was diminishing.
On May 17, 2010, the employee reported to Mr. Gosha almost complete resolution of her cervical and upper back symptoms. The employee was discharged from physical therapy, with a recommendation of home management, on May 27, 2010, at which point the employee reported acceptable tolerance of her new job tasks. She continued to have diffuse complaints of cervical and upper thoracic area pain, but did not have any focal symptoms. Mr. Gosha assessed ongoing myofascial complaints without objective physical findings.
On June 1, 2010, the employee began treatment with Faye Bollingberg, D.C. The employee’s complaints included neck and upper back pain, numbness and tingling in the hands, and bilateral wrist pain. The doctor’s assessment was cervicalgia/cervical radiculagia,[1] disc degeneration, and acute thoracic segmental dysfunction. The treatment consisted of chiropractic adjustment of the cervical and thoracic spine, cervical/thoracic intersegmental traction, and ultrasound. The employee continued to treat at Bollingberg Chiropractic several times a month through early December 2010.
On July 15, 2010, the employee was seen by Dr. Nathan Young, a neurologist at the Austin Medical Center. The employee gave a history of work on the redate and pre-price lines requiring repetitive use of her hands, with the development of a right middle trigger finger, discomfort over the wrists and base of the thumbs, and paresthesias in the medial innervated fingers of both hands. The doctor noted the employee’s symptoms had improved with the use of wrist splints, a job change requiring a different use of her hands, and rest. He also noted the employee had had some cervical and upper thoracic discomfort worsened by cervical manipulation. Dr. Young referred the employee for an EMG to assess possible carpal tunnel syndrome and/or cervical radiculopathy.
The EMG/nerve conduction study, performed on December 8, 2010, showed mild median neuropathy of the left wrist but no definite evidence of median neuropathy of the right wrist. Dr. Young suspected a combination of symptomatic median neuropathies and tendinitis in both hands and wrists and referred the employee to Dr. Darryl Barnes who, on December 13, 2010, gave the employee diagnostic cortisone injections in the carpal tunnel in both wrists.
On December 14, 2010, Dr. Bollingberg took the employee off work through February 14, 2011,[2] “[i]n order to avoid aggravation of her condition.” (Ex. C-2.) The employee returned to Dr. Toth on January 13, 2011. She stated she was doing better but still had some tingling in her hands and catching in the middle finger. The employee reported she continued to receive treatment from Bollingberg Chiropractic focusing on the neck and back, and had been off work for the past month. Dr. Toth continued the previous work restrictions for the hands.
On January 19, 2011, the employee returned to Dr. Barnes who noted persistent numbness in the fingers in the median nerve distribution. He concluded her examination was consistent with carpal tunnel syndrome and referred the employee for a surgical consultation. On February 3, 2011, Dr. Matthew Kirsch performed a revision right carpal tunnel release and right middle trigger finger release. The employee underwent a left carpal tunnel release on March 17, 2011. The employee did well following the surgeries, reporting resolution of her hand and wrist symptoms.
On May 16, 2011, the employee was seen by Colleen Byrnes, a certified nurse practitioner (CNP) at the Austin Medical Center. The employee stated she had no numbness or tingling in the hands and was happy with the results of the surgeries. However, she felt she still had weakness in the upper extremities and significant neck and shoulder pain that initially occurred following osteopathic manipulation on March 16, 2010. CNP Byrnes referred the employee for physical therapy. The employee also asked about Cymbalta for her chronic pain, but due to cost was prescribed Effexor.
A physical therapy intake was performed on May 20, 2011. The employee reported bilateral cervical and shoulder/trapezius/scapular pain. She reported she had had difficulty with neck and shoulder pain since manipulation of her upper back and spine in March 2010. On examination, cervical and shoulder range of motion were within functional limits and no neuromuscular deficits were noted.
The employee returned to work at Hormel Foods on May 23, 2011. She was seen by the physical therapist that day, reporting some tightness and soreness in the upper trapezius muscles bilaterally. On May 26, 2011, the therapist reported the employee was doing extremely well and felt she was 90% improved. The employee’s last physical therapy appointment was on June 17, 2011, when the therapist stated the employee seemed to be managing her cervical symptoms quite well with home management.
The employee was seen again by CNP Byrnes on August 17, 2011. Ms. Byrnes again noted no numbness or tingling of the upper extremities. CNP Byrnes indicated overall, things were getting better, with no tenderness in the neck, and excellent range of motion in the neck and shoulders.
During this time, the employee continued to treat with Dr. Bollingberg for cervical and thoracic tightness and pain. By report dated November 14, 2011, Dr. Bollingberg diagnosed cervical thoracic segmental dysfunction with moderate strain/sprain associated with cervicalgia, cephalgia,[3] C5-C7 disc degeneration, and hypersensitivity with paresthesia over the right C4-C7 dermatomes. Dr. Bollingberg related a history of upper thoracic pain initially occurring on March 16, 2010, when the employee was seen by Dr. Toth. Dr. Bollingberg opined the osteopathic manipulation on that date aggravated the employee’s upper back condition. The doctor further concluded, based on the employee’s medical treatment records, her examination and treatment of the employee, and the repetitive nature of the employee’s work and static positioning during the employee’s work, that the employee’s cervical and thoracic complaints along with her bilateral upper extremity paresthesias and radiculagia were substantially related to her work activities at the employer.
The employee was seen by Dr. Paul Wicklund on May 23, 2012, at the request of the employer and insurer. On examination, Dr. Wicklund found voluntary decreased range of motion of the cervical spine with tenderness but no muscle spasm. There was no spasm in the shoulder muscles or atrophy of the upper arm or forearm muscles. The C5 to T1 sensory dermatomes were normal. Dr. Wicklund diagnosed status post bilateral carpal tunnel surgery with good results, CMC joint arthritis of the thumbs, and subjective neck and upper back pain. In Dr. Wicklund’s opinion, the employee did not sustain an injury to her neck, upper back, or shoulders on March 16, 2010, as a result of osteopathic manipulation.
Dr. Robert Wengler performed an independent medical examination on June 25, 2012. Dr. Wengler reported the employee’s work at Hormel generally involved strenuous, repetitive activities involving the upper extremities as well as postural stresses to the head and neck. On examination, there was marked limitation of motion in the cervical spine with spasm in the cervical and trapezius muscles, with decreased sensation over the thumb, index and middle fingers bilaterally. Tests for carpal tunnel syndrome were negative. X-rays of the cervical spine showed marked degenerative changes at C5-6 and C6-7. Dr. Wengler opined the employee’s primary problem was discogenic neck pain with bilateral upper extremity symptoms secondary to advanced degenerative disc disease at multiple levels of the cervical spine. He concluded the carpal tunnel release surgeries had been successful, and the employee did not have evidence of a continuing median nerve impingement. Instead, he believed the employee’s thumb, index, and middle finger symptoms were radicular in nature, secondary to stenosis at C5-6. In a supplemental report dated September 6, 2012, Dr. Wengler stated an MRI study of the employee’s cervical spine showed advanced degenerative disc disease at C5-6 and C6-7 with moderate to severe bilateral lateral recess stenosis at C5-6. The doctor opined the C5-6 lesion was consistent with radicular C6 symptoms in both upper extremities. Dr. Wengler further opined the employee suffered deterioration of the cervical discs, resulting in a Gillette injury,[4] as a function of the repetitive and postural stresses to which the spine was subjected by the employee’s work activities at Hormel.
Dr. Wicklund completed a supplementary report on November 29, 2012, after reviewing additional medical records, including Dr. Wengler’s reports, the cervical MRI scan, and a videotape of jobs the employee had performed at the Hormel plant.[5] Dr. Wicklund concurred, generally, with Dr. Wengler’s interpretation of the MRI scan, but emphasized there was no evidence of spinal cord impingement or any nerve root entrapment or compression. Dr. Wicklund opined the employee had age-related cervical spine stenosis, and that the employee’s work activities on the redate and pre-price lines were not a substantial contributing, aggravating, or accelerating factor to the employee’s cervical spinal stenosis.
The employee returned to see CNP Byrnes on November 12, 2012. Ms. Byrnes diagnosed probable neck degenerative joint disease with previous carpal tunnel syndrome. Because of the employee’s chronic pain problems, CNP Byrnes changed the employee from Effexor to Cymbalta, and also prescribed Flexeril for use at night for her neck. The employee was seen by Kimberly Case, CNP, between December 2012 and March 2013. The employee reported a history of chronic pain to the neck, trapezius region, upper thoracic region, and wrist since 2010. The employee felt the Cymbalta helped her pain symptoms. She was not using the Flexeril. Amitryptyline was added in February 4, 2013, but was discontinued as it made the employee foggy.
Dr. Wengler’s deposition was taken on April 8, 2013. He reviewed Dr. Wicklund’s reports and the Austin plant videotape. Dr. Wengler maintained the numbness in the employee’s fingers was due to nerve irritation in the cervical spine. He explained the nerve that goes to the thumb, index and middle fingers exits at C5-6, so, in his opinion, the pathology was a result of damage to the 6th cervical nerve root, related to either herniation or stenosis at C5-6. Dr. Wengler again opined that the employee’s problems, including her neck, shoulder, hand, and wrist conditions, were related to inflammation and degeneration of the cervical spine due to the repetitive work activities and postural stresses that the employee described to him, that were described in a lengthy hypothetical, and that were demonstrated on the videotape.
The deposition of Dr. Wicklund was taken the following day, April 9, 2013. Dr. Wicklund agreed the MRI scan shows lateral spinal stenosis which he described as narrowing of the openings where the cervical nerves exit into the arms. In Dr. Wicklund’s opinion, this is an age-related process. He agreed the employee has foraminal stenosis, but observed that the employee was fifty-six years old, and maintained the employee’s condition was not causally related to the work activities the employee described to him or as shown on the videotape. In his opinion, the employee’s work did not require her to rotate her neck any more than the normal kinds of motions that occur normally in our daily lives. Dr. Wicklund further noted that while the employee did not have a normal MRI study, he did not observe any objective clinic findings, that is, there was no muscle weakness, chronic muscle spasm, reflex changes, or other neurologic abnormalities.
The employee filed a claim petition alleging a right middle trigger finger injury, and Gillette bilateral hand and wrist, neck, and bilateral shoulder and upper back injuries. The matter was heard by a compensation judge at the Office of Administrative Hearings on April 16, 2013. In Findings and Order, served and filed June 20, 2013, the compensation judge found the employee (1) failed to establish liability for a cervical spine injury, (2) did not establish entitlement to temporary total disability from December 14, 2010 through February 2, 2011, and (3) failed to establish entitlement to payment for medical treatment to the neck, upper back, and shoulder, including prescriptions for Citalopram, Effexor, Cymbalta, Cyclobenzaprine or nortriptyline, or for medications for pain relief after August 17, 2011. The judge additionally found the employee’s pre-injury weekly wage on January 8, 2010, was $501.61. 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 (2012). 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 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. Record on appeal
The employee contends that certain findings and conclusions of the compensation judge are manifestly and clearly erroneous, and argues that substantial evidence cannot support the compensation judge’s determination when it is based on information that is flatly incorrect. In making this argument, the employee relies on affidavits and documents attached to her brief that were not offered into evidence at the hearing below. In response, the employer attached additional exhibits to its brief. This court’s function is to review the record created at the hearing to determine whether substantial evidence supports the compensation judge’s decision. In reviewing cases on appeal, this court may not consider evidence that is not contained in the record below. See Minn. Stat. § 176.421, subd. 1 (“in view of the entire record as submitted”); Gollop v. Shale H. Gollop, D.D.S., 389 N.W.2d 202, 203, 38 W.C.D. 757, 758 (Minn. 1986); Jaynes v. Golden Crest Nursing Home, ___ W.C.D. ___ (W.C.C.A. Mar. 13, 2013), summarily aff’d (Minn. Oct. 23, 2013).[6] We, therefore, have not considered the exhibits and documents submitted by the parties with their appellate briefs or references in the briefs to these documents.
2. Cervical spine - causation
All of the doctors providing expert opinions in this case agree the employee has degenerative disease of the cervical spine. The self-insured employer additionally conceded the employee has bilateral carpal tunnel syndrome and a trigger finger. The disputed issue, therefore, is whether the employee’s work activities at Hormel Foods are a substantial contributing cause of the employee’s current neck, shoulder, upper back, and hand complaints.
In finding 4, the compensation judge found that
Shelly Schroeder [a co-worker] testified that she has worked for the employer since 1997 and worked with the employee on the redate line from 2008 to 2010. She testified that the employee complained of neck, hands, middle finger, and thumb problems. She observed the employee rubbing her neck and hands and moving her whole body to talk to Ms. Schroeder. Ms. Schroeder testified that she moved her head up and down and side to side in order to verify codes on labels, put labels on packages and close boxes. Although Ms. Schroeder testified that the employee’s hands and neck problems worsened from August 1, 2010 to December 14, 2010, the employer’s attorney indicated that the employee had moved off the lines by August of 2010. Ms. Schroeder did not work with the employee from August 2010 to December 2010.
The employee argues that the italicized portion of the finding indicating the employee had moved off the lines by August 2010, and the judge’s statement in her memorandum that the employee had worked at a light duty job since 2010, are unequivocally incorrect. (Finding 4; Mem. at 10.) We agree to some extent. A statement made by an attorney in his or her opening statement is not evidence. We, accordingly, give no weight to the compensation judge’s finding to the extent it is based on the employer’s counsel’s opening statement.
This does not, however, dispose of the issue. To establish a Gillette injury, an employee must “prove a causal connection between his ordinary work and ensuing disability.” Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994). When the employee initially received treatment for her hands and wrists, and for her neck, upper back, and shoulders in 2009 and early 2010, the employee was working on the redate and pre-price lines. At the hearing, the employee testified at length describing her work activities on the redate and pre-price lines, along with demonstrating her job tasks on these lines. She testified that at the end of a shift, her hands would be tingling, her thumbs were very painful, her neck would burn, and she would feel like an old person all bent over. Her testimony was supplemented by testimony from her co-worker, Shellie Schroeder, Timothy Nelson, her husband who also worked at the plant, and Daniel Bartel a union steward at the plant. A videotape of the redate and pre-price lines was submitted and viewed at the hearing, and was reviewed by both Dr. Wengler and Dr. Wicklund prior to their depositions.
Beginning in March 2010, Dr. Toth imposed work restrictions, including rotating job activities frequently, avoiding repetitive activities with her hands, and avoiding pinching or firm gripping with the hands. These restrictions remained in place until the carpal tunnel and trigger finger surgeries. The medical records following the imposition of these restrictions reference limited duty activities, changing job tasks, and beginning in May 2010, a new job at Hormel. There is no evidence the employee moved off the production lines entirely, but the compensation judge could conclude the employee was no longer working on the pre-price and redate lines.
Moreover, the determination of a Gillette injury “primarily depends on medical evidence.” Id., citing Marose v. Maislin Transp., 413 N.W.2d 507, 512 (Minn. 1987). In this case, three medical experts provided an opinion on causation. Based on the employee’s description of her work activities, Dr. Bollingberg opined, in her November 14, 2011, report, that the employee’s repetitive work activities and static positioning during work were a substantial cause of the employee’s neck and upper back condition, including her upper extremity paresthesias and radiculagia.
Dr. Wengler, relying on his examination of the employee, the employee’s medical records, the employee’s description of her work activities at Hormel, the job tasks demonstrated on the Hormel videotape, and a lengthy hypothetical describing the employee’s work activities on the redate and pre-price lines, opined the employee’s problems, including her neck, shoulder, hand, and wrist conditions were related to inflammation and degeneration of the cervical spine due to the repetitive work activities and postural stresses the employee was subject to in her work for the employer.
Dr. Wicklund, based on his examination of the employee and his review of the employee’s medical records, agreed the employee has degenerative cervical spine lateral stenosis. But, based on the employee’s description of her work activities, the videotape demonstrating the redate and pre-price jobs, and the employee’s medical history, Dr. Wicklund opined the employee, at age fifty-six, had age-related cervical spine stenosis, and that the employee’s work activities on the redate and pre-price lines were not a substantial contributing, aggravating, or accelerating factor to the employee’s cervical spinal stenosis
The compensation judge found the opinion of Dr. Wicklund more persuasive than the opinions of Dr. Wengler and Bollingberg. Whether an employee has 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. June 19, 1977). As the trier of fact, it is the compensation judge’s responsibility to resolve conflicts in expert medical testimony, and, where there is adequate foundation for the opinions adopted by the judge, this court will normally uphold 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 employee contends that Dr. Wicklund’s opinion is insufficient because he failed to discuss the process of aggravation of an underlying condition as a work-related phenomenon versus a traumatically induced injury. We do not agree. Dr. Wicklund clearly addressed the relationship of the employee’s work activities to her neck and upper back condition. The employee’s concerns go only to the evidentiary weight of the medical opinion offered, not to the foundation for the opinion. On the facts of this case, we cannot say that the compensation judge erred in accepting the causation opinion of Dr. Wicklund. We, accordingly, affirm.
3. Temporary total disability
The compensation judge found the employee failed to establish entitlement to temporary total disability from December 14, 2010, through February 2, 2011, concluding the employee was taken off work by Dr. Bollingberg during this time due to her cervical condition. The employee argues that Dr. Bollingberg took her off work to avoid aggravation of “her condition,” and that her condition included her compensable bilateral hand condition.
Dr. Bollingberg’s off work authorization is less than clear with respect to the reason for taking the employee off work at this time. The doctor’s diagnosis was cervical thoracic segmental dysfunction associated with disc degeneration and paresthesias/neuralgia in the upper extremities. While noting symptoms of tingling and numbness in the employee’s hands and arms, Dr. Bollingberg’s records reflect treatment to the cervical and thoracic spines only.
Just prior to being taken off work by Dr. Bollingberg, the employee was seen by Dr. Toth, Dr. Young, and Dr. Barnes at the Austin Medical Center for her hand and wrist condition. On November 23, 2010, Dr. Toth noted the employee’s hands continued to bother her, particularly the thumbs, index, and middle fingers. Noting the employee continued to work at Hormel, Dr. Toth extended the employee’s work restrictions including rotating jobs on a frequent basis, avoiding highly repetitive use of the hands, and avoiding pinching and firm gripping with the hands. The employee was seen by Dr. Young on December 8 and Dr. Barnes on December 13, 2010, following nerve conduction studies that showed evidence of median neuropathy in the left wrist. The tentative diagnosis was bilateral carpal tunnel syndrome with musculoskeletal tendinitis contributing to her pain. Neither doctor took the employee off work.
It was not unreasonable for the compensation judge to conclude that Dr. Bollingberg took the employee off work due to her cervical spine condition. The compensation judge found, and we have affirmed, that the employee’s cervical spine condition, and any related symptoms, were not causally related to her work activities. We, therefore, affirm the finding that the employee was not entitled to temporary total disability from December 14, 2010, through February 2, 2011.
4. Pain Medications
The compensation judge denied compensation for prescriptions for Celexa (citalopram), Effexor (venlafaxine), Cymbalta, Flexeril (cyclobenzaprine), and nortriptyline and all pain medications prescribed after August 17, 2011. It was not not unreasonable to conclude, from the medical records, that these medications were prescribed primarily to address the employee’s complaints of chronic neck, shoulder, and upper back pain. On August 17, 2011, CNP Byrnes noted the employee had no numbness or tingling of her upper extremities following her carpal tunnel surgeries. Having affirmed the finding that the employee’s cervical spine condition is not causally related to her work activities, we affirm the compensation judge’s determination that the employee is not entitled to reimbursement for the claimed medications.
5. Weekly Wage
The compensation judge accepted the calculations of the self-insured employer and found the employee’s pre-injury average weekly wage was $501.61, on the basis that the employee’s calculations included a pay period ending after the date of injury. The employee argues the compensation judge erred because the employer’s calculation excludes the employee’s last week of work culminating on the date of the admitted Gillette injury, Friday, January 8, 2010.
The parties agree the employee worked an irregular number of hours each week. The employer’s calculation, however, begins with the pay period ending July 12, 2009, and ends with the pay period ending January 3, 2010, resulting in total earnings of $13,041.83. The employee’s calculation starts with the pay period ending July 19, 2009, and ends with the pay period ending January 10, 2010, resulting in total earnings of $13,101.32. It is apparent from the earnings and attendance records submitted at the hearing, that the employee worked a five-day week,[7] Monday through Friday, while the pay period covered a seven day week from Monday through Sunday.
Pursuant to Minn. Stat. § 176.011, subd. 8a, if the daily wage received by the employee is irregular, the daily wage shall be computed by dividing the total amount of wages, vacation pay, and holiday pay the employee actually earned “in the last 26 weeks,” by the total number of days and fractional days in which such wages, vacation pay, and holiday pay was earned.[8] The compensation judge interpreted the phrase “the last 26 weeks” to exclude the last pay period ending after the date of injury. It is well settled, however, that when an employee performs the duties of his or her employment during the week he or she is injured, daily wage is calculated on the employee’s earnings up to and including the day of the injury. Patrick v. Christensen Family Farms, 63 W.C.D. 124 (W.C.C.A. 2002); Sattler v. Pipestone County Med. Ctr., slip op. (W.C.C.A. Mar. 18, 2003); Takemoto v. Lazer Commc’ns, slip op. (W.C.C.A. Dec. 14, 2001).
Based on the earnings and attendance records submitted at the hearing, the employee earned wages, vacation or holiday pay on 129 days in the 26 weeks up to and including the date of injury. The employee’s total earnings for the 26 weeks ending on January 8, 2010, was $13,101.32, resulting in a daily wage of $101.56 ($13,101.32 ÷ 129). The weekly wage is calculated by multiplying the daily wage by the number of days normally worked for the employment involved. In this case, 129 days divided by 26 weeks results in an average of 4.9615 days per week. Multiplying the daily wage by the average days normally worked results in an average weekly wage of $503.89 ($101.56 x 4.9615 = $503.89).[9] We accordingly modify the Findings and Order to reflect a pre-injury weekly wage of $503.89.
[1] Cervicalgia refers to neck pain, generally. Cervical radiculagia is neuralgia caused by irritation of the spinal nerves.
[2] Dr. Bollingberg initially took the employee off work through January 14, 2011. On January 13, 2011, the doctor extended the employee’s off work authorization through February 14, 2011. The employee was taken off work after February 2, 2011, due to her carpal tunnel surgeries.
[3] Cephalgia refers to headaches.
[4] Gillette v. Harold Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
[5] At the time the video was made in 2012, the employee was no longer working on the redate and pre-price lines, so the video shows other employees performing the job tasks.
[6] This court may reopen proceedings in light of newly discovered evidence; however, the employee has not petitioned this court to set aside the compensation judge’s decision as required by Minn. Stat. § 176.461. Moreover, the information in the affidavits and records attached to the parties’ briefs was presumably available to the parties at the time of hearing, but was not presented to the compensation judge. See Sorenson v. Nelson Country Mkt., slip op. (W.C.C.A. Oct. 23, 1991) (“newly discovered evidence” is evidence that was in existence at the time of the award but was not discoverable through the exercise of due diligence.)
[7] The employee worked only one weekend day, a Saturday, during the 26 weeks prior to the admitted January 8, 2010, injury.
[8] The statute was amended in 2000 (Act of April 25, 2000, ch. 447), to provide that if the employee worked or earned less than a full day’s worth of wages, the total amount earned shall be divided by the corresponding proportion of that day. As noted in Patrick v. Christensen Family Farms, 63 W.C.D. 124 (W.C.C.A. 2002), a principal argument for excluding earnings on the date of injury, prior to the amendment, was that when the employee worked less than a full day, the wages earned on the injury date did not accurately reflect the employee’s earning capacity. The statute, as amended, rectified that problem.
[9] Alternatively, the employee worked a total of 107.98 fractional days (711.84 hours + 152 vacation and holiday hours ÷ 8); $13,101.32 ÷ 107.98 = $121.33; 107.98 ÷ 26 = 4.153; $121.33 x 4.153 = $503.89.