EVIDENCE – EXPERT MEDICAL OPINION. The compensation judge’s reliance on a treating physician’s opinion regarding causation where the opinion does not express absolute certainty does not constitute error. The standard for reliance on a properly founded opinion is, based on the facts of the case, whether the offered opinion is probably true.
JOB SEARCH; REHABILITATION – COOPERATION; TEMPORARY TOTAL DISABILITY. Where the employee's QRC notes showed that employee was not directed to search for employment through most of the period of disability and that employee had followed up on job leads provided to her, and that she had otherwise cooperated with rehabilitation assistance, the compensation judge's decision and award of temporary benefits was not clearly erroneous and unsupported by substantial evidence.
Compensation Judge: Stephen R. Daly
Attorneys: Thomas Klint, Midwest Disability, Coon Rapids, Minnesota, for the Respondent. Patrick W. Ostergren, The Law Office of Brian A. Meeker, Minneapolis, Minnesota, for the Appellants.
Affirmed.
GARY M. HALL, Judge
The employer and insurer appeal the compensation judge’s award of benefits on a determination that the employee suffered a work injury and that the employee’s job search activities did not disqualify her from wage loss benefits. As the judge’s findings on these issues are largely based on credibility determinations and the result is consistent with the totality of the evidence, we affirm.
The employee, Lisa Bromwich, worked for the employer, Massage Envy, as a massage therapist. She graduated from high school and obtained a massage therapy degree from the Minnesota School of Business. As of April 27, 2015, the employee was medically restricted from performing deep tissue massage due to a pre-existing neck condition. She is right hand dominant. Prior to April 27, 2015, the employee suffered no hand or wrist pain and had no restrictions other than no deep tissue massage.
On April 27, 2015, the employee was providing a massage for a client, pressing with her balled fist against the client’s calf. The employee’s right wrist folded back with an audible snapping/popping sound. The employee was unable to use her wrist after that moment. The employee continued with her last client of the day applying light massage and not using her right wrist. The employee then experienced a migraine headache, the onset of which she attributed to the pain in her wrist. The migraine continued for the next two days and the employee did not perform any work.
On April 29, 2015, the employee visited her chiropractor to address the migraine headache, and the employee noted that her right wrist was swollen. The chiropractic note of that visit states in part “Woke with right wrist pain, fingers numb, pain with ROM.”[1] The chiropractor took the employee off of work pending further medical examination.
The employer wrote up the employee for absenteeism for missing work due to her condition. The employee performed two light massages to avoid further trouble with the employer. On May 12, 2015, which was the first day that the employee’s doctor was available, the employee was examined and diagnosed with tendonitis and prescribed a Medrol Dosepak. The employee was taken off of work indefinitely due to her wrist condition.
The employee’s condition did not improve. On August 24, 2015, the employee began treating with Michael J. Forseth, M.D. Dr. Forseth diagnosed tenosynovitis and tendinitis in the employee’s right wrist and directed that physical therapy be undertaken. Dr. Forseth released the employee to work with significant restrictions and expressly indicated that if accommodations could not be made for the restrictions, then the employee “must be off work.”[2] This limited release to work was repeated in several subsequent visits.
On January 4, 2016, Dr. Forseth conducted an extensor tenosynovectomy on the employee’s right wrist. Moderate and mild tenosynovitis was observed in several compartments during that surgical procedure. The employee was taken off of all work post-surgery. On February 1, 2016, Dr. Forseth renewed the limited release to work that had been in place prior to the employee’s surgery. The employer did not provide work within the employee’s restrictions. The employee resumed conservative treatment following the surgery. The physical therapy notes indicate that the employee experienced improved wrist range of motion (ROM), but pain and weakness in the right wrist continued. Dr. Forseth took the employee off of work entirely from April 11, to May 23, 2016.
On March 29, 2016, Kelsey Krawiecki, QRC, of the Vocational Rehabilitation Unit of the Minnesota Department of Labor and Industry (DLI VRU) began an investigation to determine if the employee was qualified to receive vocational services. The employer informed QRC Krawiecki that the employee was currently employed, but that no work was available. Dr. Forseth informed QRC Krawiecki that the employee could expect a full recovery and return to work with the DOI employer as a massage therapist. QRC Krawiecki determined that the employee was qualified for rehabilitation services and began providing those services on April 27, 2016.[3]
On April 27, 2016, the employee underwent an IME conducted by Steven Meletiou, M.D. Dr. Meletiou diagnosed the employee as having proliferative extensor tenosynovitis of the right wrist of idiopathic onset. Dr. Meletiou opined that the employee’s right wrist condition was not work-related. Dr. Meletiou explicitly relied on the absence of any reference to a sudden onset of pain in the employee’s medical records in arriving at that opinion. Six weeks of continuing physical therapy was thought to be reasonable to address the employee’s condition. Dr. Meletiou considered appropriate restrictions to be no lifting over 15 pounds, no repetitive gripping, and no forced wrist extension or flexion. The employee was assessed to not have reached maximum medical improvement (MMI) and would not for at least six months post-surgery. At that time, Dr. Meletiou suggested that the employee could be taken off of restrictions and the degree of permanence established.[4]
The employee’s pain symptoms did not improve. On June 20, 2016, Dr. Forseth noted the continuing pain symptoms and discussed further surgery. The employee underwent a Kenalog injection, which provided pain relief for one week. Dr. Forseth extended the employee’s restriction from all work from June 20, 2016 and renewed that restriction on July 11, 2016, in anticipation of a second surgery.
On July 25, 2016, Dr. Forseth conducted a right wrist extensor tenosynovectomy and a posterior interosseous nerve neurectomy. The employee was restricted from work post-surgery until August 22, 2016, when the employee was released to work with the same significant restrictions as prior to the surgery, now extended to the upper extremities bilaterally. As of September 19, 2016, the employee’s right wrist pain was essentially unchanged from before the surgeries. The bilateral restrictions were continued.
On August 31, 2016, the employee and QRC Krawiecki completed a pre-placement assessment. On October 13, 2016, QRC Krawiecki filed an Amended R-3 identifying the employee’s barriers to employment and plans for providing vocational assistance if a return to the DOI employer is not possible.
On October 6, 2016, Dr. Forseth prepared a narrative description of the employee’s condition. Dr. Forseth considered the employee to be one month from MMI, in need of further conservative care, not a candidate for additional surgery, and not yet ready for a permanent partial disability (PPD) rating. Dr. Forseth indicated that causation by the employee’s work injury could not be answered with “absolute medical certainty,” but that “Certainly, it seemed to be an aggravating factor in the development of [the employee’s] symptoms.” (Employee’s Exhibit I.)
On October 24, 2016, Dr. Forseth made the employee’s existing work restrictions permanent. The employee declined to participate in a functional capacity evaluation (FCE). On December 13, 2016, the employee entered into Job Placement Plan and Agreement (JPPA), specifying a number of low-skill, entry-level positions to be sought. QRC Krawiecki completed the employee’s resume at that time and began providing job leads for follow-up by the employee. The employee returned job logs, after some prompting, showing that she followed up on leads, but that she was not qualified for the positions, or the work exceeded her restrictions.
The employee filed a Claim Petition seeking temporary total disability (TTD) payments from the date of injury onward, payment of medical expenses, and continued rehabilitation services. The matter came on for hearing before Compensation Judge Stephen Daly on February 15, 2017. The employee was the only witness to testify. The employee related her description of how the work injury occurred to her chiropractor and indicated that the chart note was only a portion of her description given at the time of the visit.
The compensation judge found that the employee had suffered a work injury on April 27, 2015. The judge expressly described the employee’s testimony as credible regarding the nature and source of her symptoms. The judge also found Dr. Forseth’s narrative report and chart notes to be persuasive as to a causal relationship between the work injury and the employee’s ongoing symptoms. The judge found that the employee was entitled to TTD benefits due to her cooperation with the rehabilitation plan. The judge also awarded intervenor claims. The employer and insurer appealed.
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.”[5] 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.”[6] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[7] 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.”[8]
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.[9]
The employer and insurer contend that absence of corroboration in the initial chiropractic notes precludes compensation judge from finding the employee’s description of the work injury to be credible. The employer and insurer assert that the judge erred in adopting the treating physician’s opinion regarding causation. Regarding job search, the employer and insurer contend that substantial evidence does not support the compensation judge’s determination that the employee’s effort was reasonable or that she cooperated with the rehabilitation plan. The employee maintains that the compensation judge’s decision was supported by substantial evidence, and therefore must be affirmed on appeal.
In this matter, the employee testified regarding her lack of prior symptoms and the mechanism by which she experienced the onset of pain and began a lengthy period of treatment. The employer and insurer maintain that the chiropractic notes refute this testimony. The chiropractic notes do not contradict the employee’s description of the mechanism of injury. The employee’s explanation, that the chiropractor failed to record all that she had said, is itself an assertion that must be weighed.
The assessment of a witness’ credibility is the unique function of the trier of fact.[10] It is the role of the compensation judge to assess witness credibility and weigh the evidence. This court must uphold findings based on conflicting evidence.[11] In this matter, the judge found that the employee’s description of events was credible. Substantial evidence supports the compensation judge’s determination.
The employer and insurer contend that the compensation judge erred in adopting the medical opinion of Dr. Forseth due to his inability to express “absolute medical certainty” regarding the cause of the employee’s right wrist condition. The compensation judge can choose between conflicting medical expert opinions in arriving at a decision.[12] The judge’s choice of expert is typically upheld, unless the facts relied upon by the expert are without support.[13]
The facts relied upon by the employee’s treating physician, Dr. Forseth, are consistent with the mechanism of injury determined by the compensation judge. The condition of the employee’s right wrist, observed over two surgeries, is consistent with Dr. Forseth’s opinion regarding causation. The Minnesota Supreme Court described the degree of medical certainty required as follows: “It is well established that the truth of the opinion need not be capable of demonstration, that an expert is not required to express absolute certainty in the matter which is its subject, and it is sufficient if it is probably true.”[14] Dr. Forseth’s opinion meets this standard. Substantial evidence supports the compensation judge’s decision on causation and that decision is affirmed.
The employer and insurer contend that the judge’s award of TTD benefits is error, due to the employee’s failure to conduct an adequate job search. As an initial matter, this court notes that the employee was completely off of work due to medical restrictions over several periods. As the compensation judge found, and we affirm, that these periods were caused by the April 27, 2015 work injury, TTD benefits for those periods has been demonstrated without regard to a job search.
From August 24, 2015, to January 3, 2016, and from February 1, 2016, to July 24, 2016, the employee was released to work with significant restrictions. The employee did not have the assistance of a QRC or other vocational rehabilitation services until April 27, 2016. Further, the employee had not been terminated from employment. Where, as here, the employee has a reasonable expectation of returning to work with the date of injury employer, no job search is required to receive TTD benefits.[15]
On April 27, 2016, the employee began receiving vocational rehabilitation services from QRC Krawiecki. This court has long held that the employee maintains eligibility for benefits by cooperating with the rehabilitation plan developed by the QRC and agreed to by both the employee and employer and insurer.[16] Determining whether the employee has cooperated with the rehabilitation plan is the role of the compensation judge.
The employer and insurer contend that the employee did not cooperate with the rehabilitation plan, as that plan called for a job search. The number of actual job contacts made is, according to the employer and insurer, insufficient to demonstrate the required cooperation. The court notes that the rehabilitation plan job search agreement was not entered into until December 13, 2016. The case notes of QRC Krawiecki indicate that the first job leads were not sent to the employee until December 19, 2016. Those case notes also indicate that the employee followed up on the leads provided. This matter came on for hearing before the compensation judge on February 15, 2017. Under these circumstances, the compensation judge could reasonably conclude that the minimal number of job contacts meets the employee’s obligation to cooperate with the rehabilitation plan. The award of TTD benefits is affirmed.
[1] Ex. 3.
[2] Ex. L.
[3] Intervenor Ex. 1.
[4] Ex. 4.
[5] Minn. Stat. § 176.421, subd. 1(3).
[6] Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).
[7] Id. at 60, 37 W.C.D. at 240.
[8] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
[9] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
[10] Brennan v. Joseph g. Brennan, M.D., P.A., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988).
[11] Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989).
[12] Nord v. City of Cook, 360 N.W.2d 337, 342-43 (Minn. 1985).
[13] Id. at 342-43; Nielsen v. Wheel Service Brake & Equipment, No. WC11-5293 (W.C.C.A. Jan. 20, 2012); Reinhard v. Federal Cartridge Corp., No. WC12-5521 (W.C.C.A. Mar. 18, 2013).
[14] Boldt v. Jostens, Inc., 261, N.W.2d 92, 94, 30 W.C.D. 178, 182 (Minn. 1977).
[15] Zimanski v. Minn. Diversified Indus., No. WC06-112 (W.C.C.A. Sept. 1, 2006)(citing Lundberg v. Bemidji Ambulance Serv., slip op. (W.C.C.A. May 22, 1998)); see also Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995).
[16] See, e.g., Boeder v. State, Dep’t of Natural Resources, 63 W.C.D. 634 (W.C.C.A. 2003); Schreiner v. Alexander Constr., 48 W.C.D. 469 (W.C.C.A. 1993); Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).