CAUSATION – SUBSTANTIAL EVIDENCE; MEDICAL TREATMENT & EXPENSE; REHABILITATION. Substantial evidence, including adequately founded medical opinion, supports the compensation judge’s finding that the employee’s work injuries of October 11, 2012, and October 12, 2014, were substantial contributing factors of the employee’s restrictions, need for treatment, and rehabilitation services.
MEDICAL TREATMENT & EXPENSE - TREATMENT PARAMETERS; RULES CONSTRUED - MINN. R. 5221.6020, SUBP. 2. The medical treatment parameters do not apply to treatment related to a work injury after an insurer has denied liability for the injury or has denied medical causation for subsequent symptoms or conditions.
TEMPORARY TOTAL DISABILITY; JOB SEARCH. Where the employee had been terminated from her employment, was planning to undergo shoulder replacement surgery, and vocational rehabilitation services had been discontinued, the compensation judge could reasonably conclude that any job search was effectively rendered futile.
Compensation Judge: William J. Marshall
Attorneys: Karl F. von Reuter, Minneapolis, Minnesota, for the Respondent. Jerome D. Feriancek, Thibodeau, Johnson & Feriancek, PLLP, Duluth, Minnesota, for the Appellants.
Affirmed.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s determination that the employee’s work injuries of October 11, 2012, and October 12, 2014, were substantial contributing factors to the employee’s restrictions and need for treatment, from the award of temporary total disability benefits, from the finding that recommended surgery was reasonable and necessary treatment for the employee’s work injuries, from the compensation judge’s failure to apply the treatment parameters, and from the finding that vocational rehabilitation benefits were reasonable.
We affirm.
The employee, Teresa Santelli, began working for Wal-Mart in November 2010 and started her employment there in the bakery department. Her duties included baking and bagging bread, making doughnuts, stocking shelves, and other bakery tasks.
On October 11, 2012, the employee was lifting a box of frozen Italian bread weighing about 25 pounds. She dropped it, and in trying to catch it, she over-extended her left arm and shoulder. Although the employee had no pain in her shoulder immediately, she was not able to lift her arm and she started to experience arm pain shortly afterwards. The employee reported the incident to the employer the same day.
The employee was seen by Dr. Sawuya Lubega at Allina Medical Clinic – Coon Rapids on October 13, 2012. An assessment of shoulder sprain was made and the employee was referred to occupational medicine for follow-up. The employee was seen by Dr. Margo Hutchison at the clinic on October 15, 2012. Dr. Hutchison released the employee to work with only occasional lifting up to 15 pounds, no lifting beyond 15 pounds, and no reaching overhead or with the left arm outstretched. The employee was treated with a lidocaine injection.
An MRI scan performed on December 10, 2012, indicated mild degenerative spurring at the acromioclavicular (AC) joint and calcific tendinitis at the rotator cuff. Dr. Hutchison, after reviewing the scan, diagnosed calcific rotator tendinitis. The employee also had physical therapy at Dr. Hutchison’s direction. Dr. Hutchison continued the employee’s restrictions until July 9, 2013. At that time, Dr. Hutchison found the employee to be at maximum medical improvement with 95% improvement, 0% permanent partial disability, and released her to return to work with no restrictions.
The employee missed no time from work following this work injury. The employer provided light duty work within the employee’s restrictions. The employee completed a work conditioning program and worked in the employer’s pharmacy department. Her duties there were basically to stock shelves.
A few months before her October 12, 2014, injury, the employee was transferred to work in the pets department. Her primary duty was to stock shelves of pet food, cat litter, and similar products. The employee testified that the job involved heavy lifting with bags of dog food weighing up to 90 or 100 pounds.
After working in this department for some time, the employee began noticing pain in her left shoulder. On October 12, 2014, the employee was throwing cardboard into a baler when she had increased left shoulder symptoms. Her symptoms were in the same location as those she had in 2012, the top of the shoulder and into her collarbone and shoulder blade.
On October 17, 2014, the employee returned to Dr. Hutchison, who concluded the employee had exacerbated her earlier work injury. The employee was once again placed on work restrictions which allowed frequent lifting up to 10 pounds and occasional lifting up to 15 pounds, no lifting above shoulder level or from below mid-thigh, and no repetitive outstretched reaching. The employer placed the employee in zoning work, essentially straightening stock on shelves in the store, which was light duty work.
The employee treated with Dr. Jeffrey Meyer at Allina Clinic. Dr. Meyer assessed the employee as having left shoulder pain with adhesive capsulitis and rotator cuff weakness. A February 23, 2015, MRI scan was read as showing mild calcific tendinitis of the supraspinatus tendon and no cuff tear, inferiorly direct osteophytes from the AC joint, but no evidence of bursitis, and glenohumeral degenerative changes. The employee was continued on decreased work restrictions and her light duty assignment with the employer. Dr. Meyer also prescribed physical therapy.
On March 12, 2015, the employee began treating with Dr. Michael Freehill at Sports and Orthopaedic Specialists. Dr. Freehill read the February 2015 MRI scan as showing evidence of left glenohumeral joint osteoarthritis which had progressed since the December 2012 scan. Based on the imaging studies and his examination, Dr. Freehill was of the opinion that the definitive treatment for the employee’s condition was a left total shoulder arthroplasty. The employee was treated with a therapeutic injection of the left glenohumeral joint on March 23, 2015. The employee was given restrictions of no lifting over 10 pounds, no repetitive use above shoulder level, no cashiering, and no ladders.
In April 2015, the employee was found to be a qualified employee for rehabilitation services because she had been struggling with her work injuries, was working with restrictions, and could benefit from medical management. She began working with qualified rehabilitation consultant (QRC) David Mickelson. The rehabilitation plan at that time noted that the employee was working at the time rehabilitation started and stated that the vocational goal was to return to work with the same employer.
On May 29, 2015, the employee fell on her left shoulder in a non-work-related incident and sustained a left shoulder displaced surgical neck fracture. The employee was off work for five months due to this injury. After the employee was released to return to work with restrictions, the employee continued to work with her QRC to facilitate her return to work for the employer. According to Dr. Freehill, the fracture had resolved and the employee had returned to her base line condition by December 2015. The employee returned to work for the employer with restrictions.
At the request of the employer and insurer, the employee was evaluated by Dr. Stephen Barron on January 7, 2016. It was his opinion that the employee’s shoulder problems were the result of a pre-existing degenerative process not related to her work for Wal-Mart. He stated that the October 2012 injury had resolved by July 2013 when the employee’s doctor released her to return to work without restrictions and that the October 2014 injury was a shoulder sprain that had temporarily aggravated her pre-existing degenerative arthritis condition and had resolved as of March 23, 2015, when she was treated with the therapeutic injection.
The employee was terminated from employment by Wal-Mart on November 17, 2016, on the grounds of excessive absences and/or tardiness. The employee appealed the termination internally but was unsuccessful in her appeal. On November 22, 2016, the employee filed a medical request for approval of the left shoulder replacement surgery recommended by Dr. Freehill. The employer and insurer had also filed a rehabilitation request to terminate vocational rehabilitation services based on medical opinion that the employee’s symptoms and work restrictions were not related to her work injury. The request was granted by a decision and order filed November 28, 2016, and the employee filed a request for formal hearing on that issue. On December 1, 2016, the employee filed a claim petition for temporary total disability benefits, vocational rehabilitation benefits, and attorney fees. These pleadings were consolidated for hearing.
After her termination, the employee filed applications with a number of retailers with no success. The employee had some difficulty with the online application process. The employee was not receiving job search assistance since vocational rehabilitation services were discontinued a few weeks after her termination.
Dr. Freehill prepared a narrative report dated January 16, 2017, with the history he obtained from the employee, his review of her records, his treatment of the employee, and his conclusions. It was his opinion that the employee’s left shoulder condition was related to the work injuries of October 11, 2012, and October 12, 2014. Dr. Freehill noted that there was no evidence of left shoulder glenohumeral joint osteoarthritis on the employee’s imaging scans at the time of the first injury and that scans taken after the 2014 injury indicated progressive degeneration of the glenohumeral joint. He concluded that her medical treatment to that point had been reasonable, necessary, and was the result of her work injuries. Finally, Dr. Freehill stated, “Because she has failed conservative treatment, Ms. Santelli is a candidate for a left total shoulder arthroplasty and biceps transplantation. This surgery is recommended in order to improve Ms. Santelli’s quality of life, pain level, and range of motion.” (Ex. A.)
Dr. Barron performed a medical record review and issued a report dated April 11, 2017. He opined that the employee’s 2012 and 2014 work injuries were not substantial contributing factors to her current condition, but that her condition was due to degenerative arthritis of the left shoulder. He also opined that the employee has permanent restrictions of no lifting over 10 pounds and no above shoulder work, and had sustained 20 percent permanent partial disability, but again stated that the restrictions and permanency were not related to her work injuries. Dr. Barron agreed that the left shoulder replacement surgery was reasonable and necessary, but opined that the surgery was not causally related to her work injuries.
A hearing was held before Compensation Judge William Marshall on May 1, 2017. The issues identified at the hearing for determination were: 1) whether the left shoulder surgery recommended by Dr. Freehill was reasonable, necessary and related to the work injuries in October 2012 and October 2014; 2) whether the employee was entitled to temporary total disability benefits from November 18, 2016, and continuing; 3) whether the employer and insurer should be allowed to discontinue vocational rehabilitation services; and 4) whether intervention claims made by Mickelson Rehabilitation and Allina Medical Clinic were payable as being related to the work injuries.
In his Findings and Order of June 15, 2017, the compensation judge: 1) found that the surgery recommended by Dr. Freehill to be reasonable, necessary, and causally related to the employee’s work injuries; 2) awarded the employee temporary total disability benefits from November 18, 2016, to the date of hearing and continuing; 3) found vocational rehabilitation services to be reasonable; and 4) awarded the intervention claims of Allina Medical Clinic and Mickelson Rehabilitation.
The employer and insurer have 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.” Minn. Stat. § 176.421, subd. 1(3). 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).
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. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
At the hearing, the employee claimed that her workers’ compensation injuries in 2012 and 2014 were substantial contributing factors to her wage loss and need for treatment. Her claims were based on the well-founded opinion of a treating physician, Dr. Freehill. The employer and insurer claimed that the work injuries resolved with no residual consequences as of May 23, 2015, and that any ongoing shoulder difficulty and need for treatment was due to a pre-existing and non-work-related degenerative process. The claim of the employer and insurer was based on the well-founded medical opinion of Dr. Stephen Barron. It was the obligation of the compensation judge to consider the totality of the evidence and to choose as determinative one of those opinions.
We have consistently held that we will generally affirm a compensation judge’s choice among divergent medical opinions, so long as the opinion relied upon has adequate medical foundation. See Smith v. Quebecor Printing, Inc., 63 W.C.D. 566, 573 (W.C.C.A. 2003), summarily aff’d (Minn. Aug. 15, 2003); Tamayo Lopez v. JBS USA, LLC, 76 W.C.D. 273, 280 (W.C.C.A. 2015), summarily aff’d (Minn. Mar. 21, 2016); see also Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).
Dr. Freehill reviewed the employee’s medical records, treated the employee on a number of occasions, and considered Dr. Barron’s initial report of January 7, 2016. This information is adequate to establish foundation for a medical opinion. See Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188, 30 W.C.D. 426, 430 (Minn. 1978); Willy v. Northwest Airlines Corp., 77 W.C.D. 349, 354 (W.C.C.A 2016), summarily aff’d (Minn. May 10, 2017). Substantial evidence in the form of Dr. Freehill’s opinion supports the compensation judge’s finding on this issue.
Appellants raise two subsidiary issues on causation. First, they contend that the compensation judge erred in concluding that the employee’s left arm fracture in May 2015 had resolved by December 2015 and “was not a significant factor in her ongoing left shoulder pain.” (Finding 10.) We would simply note that appellants cite to no medical opinion, including Dr. Barron’s opinion, disagreeing with this conclusion. Dr. Barron only referred to the employee’s degenerative arthritis being the cause of the employee’s current condition. He did not indicate that the employee’s left shoulder fracture in May 2015 was a factor in that condition. In the absence of any evidence supporting this argument, we decline to reverse the compensation judge’s finding on this issue.
Second, appellants challenge the compensation judge’s finding that the employee continued to have pain in her left shoulder when working after she was released to return to work in July 2013 with no restrictions. (Finding 6.) Appellants argue there is no objective medical evidence to support this finding. There is no legal requirement that there must be such evidence to support an employee’s report of symptoms. A finding of maximum medical improvement and a release to return to work without restrictions does not mean that an injury has completely resolved with no symptoms. Further, and most importantly, neither of these subsidiary issues affect the primary issue of whether the employee’s ongoing symptoms were in substantial part the result of her work injuries in 2012 and 2014.
The compensation judge’s determination on causation is affirmed.
The compensation judge specifically found that the left shoulder surgery recommended by Dr. Freehill is reasonable, necessary, and “related to both the October 11, 2012, and October 12, 2014, dates of injury.” (Finding 15.) The employer and insurer argue on appeal that the left shoulder replacement surgery proposed by Dr. Freehill is not allowed under the treatment parameters in Minn. R. 5221.6300 and that the compensation judge erred in failing to address this issue.
The rules specifically provide that the treatment parameters do not apply “after an insurer has denied liability for the injury.” Minn. R. 5221.6020, subp. 2. The treatment parameters also do not apply when, as here, the employer and insurer assert that the work injury was temporary, had resolved, and was no longer a causal factor in the employee’s need for medical treatment. See Schulenburg v. Corn Plus, 65 W.C.D. 237, 248-49 (W.C.C.A. 2005), summarily aff’d (Minn. May 25, 2005); Oldenburg v. Phillips & Temro Corp., 60 W.C.D. 8, 13-14 (W.C.C.A. 1999), summarily aff’d, 606 N.W.2d 445, 446 (Minn. 2000); Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999). An employer and insurer “cannot deny the employee’s condition is work-related, yet assert the protection of, or demand compliance with, medical treatment parameters that apply only to work injuries.” Mattson, slip op. at 6; see also Paoli v. Rainbow Foods, No. WC05-304 (W.C.C.A. July 28, 2006). Even though the treatment parameter issue was raised at the hearing, because this defense was not available to the employer and insurer, it was not necessary for the compensation judge to address this issue.
The compensation judge awarded temporary total disability benefits from November 18, 2016, the day after the employee was discharged by the employer, through the date of hearing and continuing. The employer and insurer argue that the employee was terminated for reasons not related to her work injuries. The issue for the compensation judge, however, was whether the employee had work-related restrictions and looked for work within those restrictions, unless the judge concluded that a job search would be futile.
An employee capable of working must generally make a diligent job search to establish entitlement to temporary total disability benefits, unless factors such as age, physical condition, training, and experience indicate that the employee is incapable of obtaining anything but sporadic work with insubstantial income. Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 733, 40 W.C.D. 948, 954 (Minn. 1988); see also Minn. Stat. §176.101, subd. 1(g) ("Temporary total disability compensation shall cease if the total disability ends and the employee fails to diligently search for appropriate work within the employee’s physical restrictions."). The employee testified as to her ongoing limitations and restrictions in daily activity and her efforts to find appropriate employment.
Further, an injured employee seeking benefits need not make a diligent search for work when such a search would obviously be futile. Scott v. Southview Chevrolet Co., 267 N.W.2d 185, 188-89, 30 W.C.D. 426, 432 (Minn. 1978). The employee’s QRC testified that a job search before the proposed left shoulder replacement surgery was not practical and that pre-placement activities such as resumé development, job seeking skills training, and vocational testing made more sense than job search in this situation. In the present case, the compensation judge could reasonably conclude that the employee's prospective surgery effectively rendered futile any search for work after her termination, particularly in light of the discontinuance of vocational rehabilitation services.
The employer and insurer again argue that the employee’s current condition and need for medical treatment, including the recommended surgery, are not related to her work injuries, but are related to her osteoarthritis, which they claim pre-existed her 2012 work injury, based on Dr. Barron’s opinion. They assert that the employee’s 2012 imaging scans indicate degenerative changes and therefore that the degeneration must have preceded the work injury and that Dr. Freehill’s statement that there was no evidence of left shoulder glenohumeral joint arthritis in 2012 must be erroneous. The December 2012 MRI scan indicated mild degenerative spurring at the acromioclavicular (AC) joint and calcific tendinitis at the rotator cuff. The February 2015 MRI was read as showing mild calcific tendinitis of the supraspinatus tendon and no cuff tear, inferiorly direct osteophytes from the AC joint, but no evidence of bursitis, and glenohumeral degenerative changes, progressed since the prior study. The AC joint and the glenohumeral joint, however, are not the same. The glenohumeral joint is the articulation of the glenoid cavity and the head of the humerus, and the AC joint is the articulation of the acromion, the lateral extension of the spine, and the clavicle. Dorland’s Illustrated Medical Dictionary 21, 750, 931 (29th ed. 2000). As stated by Dr. Freehill in his report, there is no mention of glenohumeral degenerative changes in the 2012 imaging scans. The compensation judge did not err by relying on Dr. Freehill’s opinion regarding causation of the degenerative changes in awarding medical expenses related to the employee’s current condition and proposed surgery.
The employer and insurer claim rehabilitation services received by the employee after her termination were not reasonable or related to her work injury. For an employee to be eligible for rehabilitation services, the employee must meet the definition of “qualified employee.” Minn. R. 5220.0130, subp. 1. A “[q]ualified employee” is defined in part as an employee who is permanently precluded or likely to be permanently precluded “from engaging in the job the employee held at the time of injury,” Minn. R. 5220.0100, subp. 22.A, or “cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer.” Minn. R. 5220.0100, subp. 22.B. The employer and insurer assert that the employer has been willing to accommodate the employee in the past, that the reason for her unemployment was her termination for excessive absences and tardiness, and that she could return to work for the employer, pointing to language in her termination agreement that she is eligible to reapply to work for the employer.
We have affirmed the compensation judge’s finding that the employee’s current condition and need for surgery are related to her work injuries. The employee testified that she was unaware that she could return to work for the employer and that she had applied for several jobs. As we noted above, the compensation judge could reasonably conclude that the employee's prospective surgery effectively rendered any search for work after her termination futile. In addition, the employer did not make a job offer to the employee. Substantial evidence supports the compensation judge’s finding that the claimed vocational rehabilitation services were reasonable.
The decision of the compensation judge is affirmed.