JUDITH A. WEISS, Employee/Respondent, v. ST. MARY’S MED. CTR., SELF-INSURED/BERKLEY RISK ADM’RS CO., LLC, Employer/Appellant.

The self-insured employer appeals from the compensation judge’s finding that the employee sustained Gillette^[1] injuries to her cervical spine and right shoulder; from the judge’s ruling that the amount of the employee’s weekly wage is preserved for future determination; and from the finding that the employee is entitled to temporary partial disability compensation. We affirm.

The employee, Judith Weiss, was born in 1954 and started working for the employer, Essentia Health St. Mary’s Medical Center,^[2] in 1990 at its hospital in Duluth. She initially worked in housekeeping. She next worked in central supply, gathering, cleaning, and sterilizing, and delivering medical instruments throughout the hospital. In approximately 2007, the employee’s job changed to the collecting, servicing, and cleaning of IV poles and pumps. In this job, the employee went from floor to floor in the hospital to collect IV poles, clean and sterilize the poles and associated pumps and equipment, and return them to each floor. The employee used a supply cart to bring her cleaning supplies, parts, and equipment to the various locations throughout the hospital where she cleaned poles and pumps. For the first roughly 9 to 13 years, she used a pushcart which she could pull behind her while pushing IV poles in front of her. In about 2015 or 2016, the hospital replaced its IV pumps with a newer type of pump, and a larger cart was then required to transport the employee’s supplies and equipment. The employee found this larger cart much harder to maneuver as two of the wheels were stationary, making it very difficult to turn. Sometime in 2016, the employer replaced this cart with a different one that the employee acknowledged was easier to use.^[3]

The employee’s medical records document some sporadic treatment for pain radiating from the employee’s hands to her shoulders, resulting in a diagnosis of bilateral carpal tunnel syndrome. In 1990, cervical x-rays showed some degenerative changes in the cervical spine consisting of decreased height at C5-6 and C6-7, osteophyte formations at C6-7, and joint spurring at C5-7. In 1991, the employee was treated for a cervical strain which she attributed to pulling a heavy cart. In 2003, the employee was taking an IV pole from an elevator when the wheel stuck and the pole began to fall. In catching the pole from falling, the employee sustained what was initially diagnosed as acute myofascial strain to her left shoulder. She also reported neck pain and was evaluated in therapy for neck symptoms but continued working full time. In 2007, the employee was seen for a right shoulder injury at her primary care clinic, reporting that she had experienced a pulling sensation in the right shoulder while trying to bring IV poles into the elevator. She was diagnosed with a right shoulder sprain.

On April 2, 2015, the employee was seen by a chiropractor for neck and upper back pain and bilateral arm tingling. She stated she had been dealing with these symptoms for a number of years and that upper body motions at her two jobs aggravated her pain. Cervical x-rays showed severe degenerative joint disease throughout the cervical spine. The employee underwent one chiropractic treatment but declined further treatments for financial reasons.

The employee was seen by Dr. Mark Gregerson, an orthopedic surgeon, on March 17, 2016, at the suggestion of her attorney. The employee was reporting problems with her neck, left shoulder, right shoulder, and left knee. She explained to the doctor that her work for the employer since 1990 had consisted of loading and moving heavy instrument carts. She described needing to lean into the heavy, loaded carts to move them, pushing off with her right leg and pulling with her right upper extremity, and that she needed to turn her neck to watch where she was going with the cart. The employee stated that she had noted increased stiffness and pain in her neck and shoulder over the past year. Over the past six months, she had also noted increased right shoulder pain and a feeling of “tearing” in the right shoulder when lifting or carrying and while resting in bed.

Dr. Gregerson opined that the employee’s work activities had significantly aggravated the condition of her neck. He ordered work restrictions and opined that further diagnostic studies were needed to determine whether there was stenosis or radicular findings. He assessed the employee’s right shoulder condition as possible rotator cuff impingement or tear. He also wanted to review x-rays and possibly an MRI of the right shoulder. He recommended that the employee avoid using her right arm. He found moderate swelling in the left knee medially, but good alignment with full range of motion and no crepitus, snapping, or instability. He requested x-rays of the knee and recommended knee restrictions. In Dr. Gregerson’s opinion, the employee’s knee condition had also been aggravated by her work activities for the employer.

On May 19, 2016, the employee was seen by an orthopedic physician, Dr. Ann Sudoh, at Essentia on referral of her primary care physician, Dr. Kirsten Bich. She complained of right shoulder pain which had started about eight months previously and which was gradually worsening. X-rays showed evidence of degenerative changes at the acromioclavicular (AC) joint with subacromial spurring. There was also some osteophyte formation at the edge of the greater tuberosity. Dr. Sudoh thought that the employee’s right shoulder pain was likely due to a degenerative rotator cuff tear and degenerative joint disease within the AC joint. Dr. Sudoh recommended an MRI for further evaluation of the employee’s rotator cuff.

The employee was seen by Dr. Bich on June 20, 2016, for left knee pain, present on and off for two years and gradually worsening. Dr. Bich diagnosed probable arthritis and patellofemoral syndrome. She referred the employee to sports medicine for a possible cortisone injection.

The employee saw Dr. Sudoh in follow up for her right shoulder and left knee pain on June 24, 2016. X-rays of the left knee were read as showing advanced osteoarthritis, osteophytes, and joint space narrowing along the medial and lateral compartments. She was assessed with left knee tri-compartmental degenerative joint disease, primarily in the patellofemoral component. Dr. Sudoh also noted that the employee’s shoulder MRI showed a rotator cuff tear and AC joint arthritis with subacromial spurring. The employee was provided with cortisone injections in the right shoulder and the left knee.

On June 30, 2016, the employee was seen by Dr. Bich for her neck pain. She was referred to physical therapy.

By letter dated July 29, 2016, the employee’s attorney asked Dr. Gregerson for an updated opinion, enclosing the employee’s medical records and imaging results since the doctor’s prior examination. Dr. Gregerson responded in a supplemental report on August 8, 2016, providing diagnoses of right shoulder rotator cuff impingement and tearing, multilevel degenerative changes to the cervical spine, and severe degenerative arthritis of the left knee. In his opinion, he concluded that “these findings were significantly aggravated by her work” for Essentia.^[4]

The employee continued to treat with Dr. Sudoh and was also treated at Essentia Pain Management for her left knee, right shoulder, and neck conditions during the remainder of 2016, and was provided with right shoulder steroid and cervical facet injections. She was also referred to an orthopedic surgeon, Dr. Jeffrey Klassen, regarding her right shoulder. Dr. Klassen saw the employee on November 29, 2016. He recommended right shoulder surgery.

On December 21, 2016, the employee was seen for a medical evaluation by Dr. Loren Vorlicky on behalf of the self-insured employer. Dr. Vorlicky agreed with the diagnoses of a right shoulder rotator cuff tear and acromioclavicular joint arthritis. Dr. Vorlicky diagnosed the employee’s cervical condition as multilevel degenerative disc disease. With respect to the left knee, his diagnosis was osteoarthritis. In his opinion, all of these were chronic degenerative conditions and the employee’s work activities at Essentia did not constitute a substantial cause of their development, aggravation, or acceleration.

The employee claimed Gillette injuries to her cervical spine, her right shoulder, and her left knee, with a culmination date of August 8, 2016. She was taken off work by the employer and placed on medical leave from September 16, 2016, through the date of hearing. At the time of the alleged injuries, the employee had been working a second, part-time job for Walmart as a cashier. When she was medically off work from her job with Essentia, she had been taken off her cashier job by Walmart, but was able to continue working at Walmart as a greeter.^[5]

A hearing was held before Compensation Judge Arnold on June 22, 2017. Following the hearing, the judge found that the employee had sustained Gillette injuries to the cervical spine and to the right shoulder, but not to the left knee. In his memorandum, the judge relied on the opinion of Dr. Gregerson with respect to the cervical spine and right shoulder, and the opinion of Dr. Vorlicky with respect to the left knee, concluding those opinions he accepted from each expert were more consistent with the medical evidence and more consistent with the employee’s work activities. The judge further found that the employee was entitled to temporary partial disability benefits. The judge also found that the employee’s weekly wage from employer Essentia was $738.09, the amount the parties agreed represented her base pay without overtime, but further ruled that “[n]o determination is made with regard to any claims of employee to adding the pre-injury earnings at Walmart as such were not at issue at hearing. Any such claims are preserved for future determination.”^[6]

The self-insured employer appeals.

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.” 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.”^[8] Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.^[9] 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.”^[10]

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.^[11]

The appellant, Essentia, argues on appeal that the compensation judge’s findings of Gillette injuries to the neck and right shoulder lack substantial evidentiary support in the record.

To establish a Gillette injury, an employee must “prove a causal connection between [his or] her ordinary work and ensuing disability.”^[12] While evidence of specific work activities causing specific symptoms leading to disability may be helpful, whether an employee has sustained a Gillette injury “primarily depends on medical evidence.”^[13] This determination is not solely dependent on medical testimony, however, and the compensation judge should also consider the nature and extent of the employee’s work duties in determining legal causation. “Ultimately, it is the responsibility of the compensation judge to weigh all of the evidence in the case to decide whether the work activities caused the disability.”^[14]

In finding the August 8, 2016, Gillette injuries, the compensation judge relied both on Dr. Gregerson’s expert opinion and on the employee’s testimony that her work activities at Essentia had increased the pain in her neck and right shoulder, which had become more frequent and persistent over a twelve-month period while working at her sterile processing position. The employee began physical therapy for her bilateral neck pain in July of 2016, having already treated with various medical providers before being seen by Dr. Gregerson on March 17, 2016. The judge noted that the subsequent medical records and x-rays of the cervical spine reviewed by Dr. Gregerson, as noted in his August 8, 2016, supplemental report, did not change Dr. Gregerson’s earlier opinions that the rotator cuff and cervical spine conditions were significantly aggravated by the work in the sterile processing job with Essentia. The judge also noted in detailed findings the recorded symptoms, diagnoses, and treatment from Dr. Bich, Dr. Sudoh, and Dr. Sjoding. Based on testimony and medical records, the judge expressly relied on the medical opinions of Dr. Gregerson regarding the occurrence of neck and right shoulder Gillette injuries, and specifically rejected the opinions of Dr. Vorlicky for these two injuries.

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.^[15] Moreover, it is not the role of this court to evaluate the credibility and probative value of witness testimony and choose different inferences from the evidence than the compensation judge.^[16]

The appellant contends that the medical records taken as a whole establish that the employee’s condition initially was, and at all times remained, simply a continuation of her non-work-related conditions, and that only Dr. Vorlicky’s opinions were consistent with the records. The appellant points to various aspects of the records that it contends support that interpretation, and argues that a mere recurrence of symptoms while working does not establish a Gillette injury. We find this argument unconvincing. We do not think the treatment records necessarily compel the rejection of the alleged 2016 Gillette injuries and establish that the employee’s right shoulder and neck symptoms were solely degenerative conditions or symptom magnification of subjective complaints. The compensation judge specifically states in his memorandum that he found Dr. Gregerson’s opinions on the two Gillette injuries in question to be more consistent with the medical evidence and more consistent with the employee’s work activities.

The appellant also contends that the judge should have given greater weight to the medical opinions of Dr. Vorlicky than those of Dr. Gregerson because, in the appellant’s view, Dr. Gregerson’s opinions are “woefully” lacking in foundation. The appellant argues that Dr. Gregerson was “unaware of, failed to review, or failed to consider . . . significant relevant information.”^[17] Specifically, the appellant points to a 1990 x-ray and other medical records from the early and mid-1990’s that reveal the employee’s treatment for neck and bilateral shoulder pain. The appellant further points out that Dr. Gregerson admitted in his deposition that he had not seen various medical reports as well as an analysis prepared by Essentia of the physical demands of the employee’s job and of the amount of force required to push or pull a cart. This lack of information, the appellant argues, led to what the appellant characterizes as false assumptions by Dr. Gregerson regarding the employee’s job duties. In light of these records and statements, the appellant suggests that it was inappropriate for the compensation judge to rely on the employee’s testimony and Dr. Gregerson’s opinions of increased symptoms.

We do not find the inconsistencies between the medical records and Dr. Gregerson’s testimony significant enough to warrant overturning the judge’s findings. The deposition transcript reveals that Dr. Gregerson was specifically informed by the appellant’s counsel on cross-examination of the general contents of several of these records. But on redirect examination, the doctor testified that he continued to maintain his original opinions. Nor are we able to conclude that the judge erred in failing to adopt the appellant’s preferred weight for and interpretation of Dr. Vorlicky’s opinions.

Substantial evidence supports the judge’s finding that the employee sustained Gillette injuries to her cervical spine and right shoulder culminating on or about August 8, 2016.

The appellant contends that the compensation judge erred in finding that the employee was entitled to temporary partial disability compensation, noting that the employee was able to work under restrictions, but had not performed a job search. The appellant further argues that because the employee did not offer post-injury wage records into evidence as documentation, the judge had insufficient information to reach a determination as to whether the employee had a diminished post-injury earning capacity and was entitled to wage loss benefits.

To prove entitlement to temporary partial disability compensation, an employee must demonstrate a work-related physical disability and an actual loss of earning capacity that is causally related to the disability.^[18] Whether a reduced earning capacity is attributable to the disability or to some other factor is generally a question of fact for the compensation judge.^[19] The medical evidence in this case, together with the employee’s testimony, provide a sufficient evidentiary basis to conclude the employee’s personal injury caused a physical disability impairing the employee’s ability to work. The employee sustained a wage loss during the periods at issue. As a general rule, an employee’s post-injury earnings are presumed to be an accurate reflection of the employee’s ability to earn or earning capacity.^[20]

The question of whether an employee must conduct a job search in order to prove earning capacity is one of fact for the compensation judge and will be affirmed by this court if the decision is supported by substantial evidence.^[21] It was undisputed that the employee continued to be in Essentia’s employ as of the date of hearing. In finding the employee entitled to temporary partial disability compensation, the compensation judge noted that the employee was on medical leave from Essentia.^[22] Case law has held that where there is evidence of a continuing employment relationship with the employer and there appears to be a reasonable possibility the employee might return to work with the employer within a relatively short period of time, a judge may conclude that it is not reasonable to require an immediate search for work elsewhere, in order for an employee to be eligible for wage loss benefits.^[23] As the record in this case adequately supports the compensation judge’s award of temporary partial disability compensation, we must affirm.

Although the employee did not submit post-injury wage and hours records, we note that the employee testified generally about her pre- and post-injury hours and wage rate at Walmart and her employment there both prior to and following the injury. This testimony was sufficient to support a finding of a diminished earning capacity and general eligibility for wage loss benefits. The absence of evidence or findings regarding the specific wage calculations is not fatal to the finding, which left that calculation open should the parties fail to reach an agreement.

In Finding 35, the compensation judge found that the employee’s weekly wage to the extent “applicable to her earnings from employer Essentia Health” was $738.09, but further stated, “[n]o determination is made with regard to any claims of employee to adding the pre-injury earnings at Walmart as such were not at issue at hearing. Any such claims are preserved for future determination.”

The appellant argues that the compensation judge erred as a matter of law by leaving the question of the weekly wage open with respect to the extent to which the employee’s earnings in her second job at Walmart should be included in the calculation. Citing judicial economy, the appellant argues that the employee should be held to have forfeited any claim to include such earnings in her weekly wage at the hearing.

In further support of its position, the appellant cites Minn. Stat. § 176.371, which states that “[t]he compensation judge’s decision shall include a determination of all contested issues of fact and law . . . .” Relying on various cases,^[24] the appellant claims the compensation judge committed an error of law by determining issues not raised by any party at the hearing and further contends that no evidence had been offered on this point, noting that “[a]t no time did Compensation Judge Arnold ask the parties about the Walmart wages or identify an average weekly wage issue related to the [e]mployee’s second job.”^[25]

The wage issue presented at the hearing was whether overtime should be included in determining the employee’s weekly wage at Essentia. While a compensation judge must determine all of the issues raised at the hearing, the employee’s overall wage calculation for determination of the amount of temporary partial disability compensation payable was not an issue which was raised at the hearing. Under the circumstances, we cannot conclude that the compensation judge abused his discretion by failing to make a final determination on an issue which even the appellant agrees was not actually raised. We do note the employee testified that she continues to work at Walmart as a greeter 20 hours a week at $10.50 an hour. No evidence was submitted to challenge this testimony, and no party disputes the fact that the employee has been on medical leave from Essentia since September 2016. While actual wages since September of 2016 are presumed to be an accurate reflection of a diminished earning capacity that carries a rebuttable presumption, the judge ruled that the appellant can return to court later with evidence on this issue if the parties cannot reach an agreement. Under the unique facts of this case, we think that the judge was not in error to reserve the temporary partial disability wage calculation and the appellant’s defenses for future determination.