CAUSATION – SUBSTANTIAL EVIDENCE. Substantial evidence in the record, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee did not sustain injuries to his right hip, right shoulder, or left hand as a result of the work injury.
CAUSATION – TEMPORARY INJURY. Substantial evidence in the record, including adequately founded expert medical opinion, supports the compensation judge’s finding that the employee’s neck and back conditions were temporary in nature and had resolved by August 20, 2018.
TEMPORARY TOTAL DISABILITY; JOB SEARCH. The compensation judge’s factual determination that the employee failed to make a reasonable and diligent search for suitable employment is supported by substantial evidence in the record, including the employee’s testimony at hearing.
WAGES – CALCULATION. The compensation judge did not err in determining that the employee’s weekly wage should not include actual incurred expenses deducted from the employee’s earnings.
Compensation Judge: Sandra J. Grove
Attorneys: Brad R. Kolling and Kali P. Dahlquist, Felhaber Larson, Minneapolis, Minnesota, for the Appellant. Christine L. Tuft, Arthur, Chapman, Kettering, Smetak & Pikala, P.A., Minneapolis, Minnesota, for the Respondents.
Affirmed.
PATRICIA J. MILUN, Chief Judge
The employee appeals from the compensation judge’s findings regarding the nature and extent of the employee’s work injury, adequacy of his job search, and determination of his weekly wage. We affirm.
The employee, Howard Thompson, began working for the employer, On Time Delivery Service, Inc., in 2017 after attending commercial trucking school and obtaining proper licensure. As a dock truck driver, the employee was responsible for loading and unloading product and making local deliveries. The employee was 58 years old when he began working for the employer. Prior to this employment, he had injured his neck in two motor vehicle accidents in 1987 and 1990 and received a 15 percent disability rating for a herniated disc at C4. The employee treated for ongoing neck pain with chiropractic care at SuNu Wellness Center beginning in 2017.
While driving to deliver product for the employer on April 16, 2018, the employee was involved in a motor vehicle accident. He continued chiropractic treatment at SuNu Wellness Center for worsening neck and back pain. On May 18, 2018, he was seen by neurologist Dr. Beth Ann Staab at Noran Neurological Clinic for neck, back, and bilateral hip pain. A cervical MRI scan, physical therapy for the neck and back, and an orthopedic evaluation for the hips were recommended. The cervical MRI showed degenerative findings of a minor disc osteophyte complex at C6-7 and mild to moderate right foraminal narrowing due to uncovertebral joint facet arthropathy.
The employee continued with chiropractic treatment and physical therapy through the summer of 2018 but showed little improvement. The employee had not returned to making deliveries for the employer since the date of the accident. While under no formal work restrictions, chiropractic treatment notes indicate the employee was unable to work due to pain and that returning to work could inhibit proper healing.
At the request of an automobile insurance carrier, the employee was seen by chiropractor Dr. James Anderson on August 20, 2018. Dr. Anderson opined the employee had sustained temporary neck and back sprains/strains as a result of the April 16, 2018, accident. He further opined those injuries had since resolved and no further chiropractic treatment was reasonable, necessary, or related to the work injury. Dr. Anderson indicated the employee sustained traumatic injuries to his right hip flexor muscle/tendon and hip joint.
On August 23, 2018, the employee underwent an MRI of the right hip which showed a lipoma on the quadratus femoris muscle and mild thinning of the articular cartilage with tiny subchondral cysts. No labral tear or impingement was indicated. On referral from Noran Neurological Clinic, the employee was evaluated by orthopedic surgeon Dr. Jonathan Asp at Twin Cities Orthopedics. Dr. Asp opined the employee’s right hip symptoms were soft tissue related and the employee needed no work or activity restrictions.
The employee was seen on September 27, 2018, by sports medicine specialist Dr. John Odom, Jr, following a referral from his chiropractor. Dr. Odom diagnosed cervical and lumbar strains and right hip pain, recommended additional physical therapy, and opined the employee should remain off work for at least four weeks. After the employee did not show improvement through physical therapy, Dr. Odom referred the employee to a chronic pain clinic.
On March 26, 2019, the employee began treating with occupational medicine specialist Dr. Zeke McKinney at HealthPartners. Dr. McKinney recommended that the employee continue with chiropractic care and physical therapy and remain off work until he returned for a follow-up. At the return visit on April 8, 2019, the employee was released to return to work with restrictions. These restrictions included seated work with position changes, no lifting over ten pounds, and no climbing or working at heights. Dr. McKinney also referred the employee for an orthopedic surgical evaluation for his right hip.
The employee was seen at TRIA Orthopedics for a right hip surgical evaluation on May 15, 2019. Dr. Linnea Will recommended a cortisone injection in the right hip. This treatment initially provided great relief and had lessened his pain, suggesting the employee’s symptoms likely originated in the joint and were related to mild arthritis or possible labral pathology/femoroacetabular impingement (FAI).
The employee continued with follow-up appointments with Dr. McKinney. In June 2019, Dr. McKinney opined that the employee’s right hip condition had improved, but was not fully resolved, and the employee was deconditioned. Restrictions to allow for occasional walking and standing and physical therapy and a home exercise program were recommended in early 2020. The employee limited his treatment with Dr. McKinney in 2020 and 2021 due to the COVID-19 pandemic restrictions.
The employee was evaluated for purposes of an independent medical examination on behalf of the employer and insurer by Dr. Edward Szalapski on August 6, 2019. Dr. Szalapski reviewed medical records and an MRI scan, conducted an interview of the employee, and performed a physical examination. In an August 22, 2019, report, Dr. Szalapski opined that if the employee had injured his neck, back, and right hip in the April 16, 2018, accident, those injuries were limited to soft tissue injuries which had resolved and resulted in no disability. (Ex. 2.) Dr. Szalapski also stated that any treatment rendered more than three months after the date of the accident was not causally related. Dr. Szalapski evaluated the employee again and in a November 9, 2021, report, reiterated his initial opinions. He added the employee was “embellishing” his hip symptoms and his shoulder complaints were “spurious.” (Ex. 5.) He also stated that the employee did not have any history or physical examination findings to support a diagnosis of FAI.
In a narrative report issued on June 15, 2021, Dr. McKinney opined the employee sustained chronic neck and back strains and his right hip diagnosis was FAI or other intra-articular pathology. He stated that these injuries were more likely than not related to the April 16, 2018, accident. Finally, he opined that the chiropractic care was reasonable given the absence of other treatment.
The matter came on for hearing before a compensation judge at the Office of Administrative Hearings, who issued a Findings and Order on August 23, 2022. The compensation judge found: 1) Mr. Thompson was an employee of On Time on April 16, 2018, within the meaning of Minn. Stat. § 176.043;[1] 2) the employee did not sustain personal injuries to his right hip, right shoulder, or left hand on April 16, 2018; 3) the employee sustained injuries to his neck and back on April 16, 2018, which resolved, and he reached maximum medical improvement by August 20, 2018; 4) the employee was temporarily and totally disabled from April 17 through August 20, 2018, as a substantial result of his temporary neck and back injuries, and was entitled to benefits based upon a weekly wage of $1,801.41; 5) the employee did not conduct a reasonable and diligent job search from August 21, 2018, through the date of the hearing; and 6) the medical treatment administered by SuNu Wellness Center, Noran Neurological Clinic, and HealthPartners up to August 20, 2018, was reasonably required to cure and relieve the effects of the neck and back injuries sustained on April 16, 2018. The employee 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.” 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).
The employee appeals from the compensation judge’s decision, claiming that substantial evidence in the record does not support the following findings: (a) the employee did not sustain personal injuries to his right hip, right shoulder, or left hand on the date of injury; (b) the employee’s injuries to his neck and back were temporary and had resolved; (c) the employee’s job search was inadequate and (d) the employee’s benefits should be paid based upon a weekly wage of $1,801.41. We will address these issues in turn.
The compensation judge found that the employee did not sustain injuries to his right hip, right shoulder, and left hand on April 16, 2018, in Finding 43. On appeal, the employee argues in his brief that the judge “completely ignored” evidence with respect to the impact of the collision and “virtually ignored” the fact that the employee did not treat for these conditions prior to April 16, 2018. The employee asserts that the compensation judge should have instead adopted the opinion of Dr. McKinney over those of Dr. Szalapski.
As a general rule, a compensation judge is not obligated to refer to or discuss every piece of evidence introduced at hearing. Regan v. VOA Nat’l Housing, 61 W.C.D. 142, 149 (W.C.C.A. 2000), summarily aff’d (Minn. Apr. 6, 2001). The fact that all medical evidence was not outlined in a findings and order does not establish that the evidence was not considered. Rothwell v. Minn. Dep’t of Nat. Res., slip op. (W.C.C.A. Dec. 6, 1993). While the facts in the record may support contrary inferences or a different conclusion, review by this court is limited to whether substantial evidence in the record as a whole supports the factual findings and reasonable conclusions of the compensation judge. Hengemuhle, 358 N.W.2d at 59, 34 W.C.D. at 239. In this case, the compensation judge specifically found Dr. Szalapski’s opinion to be persuasive and Dr. McKinney’s opinions not persuasive, noting that the employee’s right hip MRI scan did not show FAI. This court generally defers to the fact finder’s choice of expert opinion. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). The judge further stated that the employee did not complain of left hand symptoms until more than six weeks after the accident and did not initially report symptoms in his hips or shoulder. The judge’s findings that the employee did not sustain work-related injuries to his right hip, right shoulder, and left hand are supported by substantial evidence, including the opinion of Dr. Szalapski, and we affirm.
The compensation judge found in Finding 44 that the employee sustained injuries to his neck and back on April 16, 2018, which had resolved as of the August 20, 2018, examination by Dr. Anderson, when the employee also reached maximum medical improvement. The employee argues that the opinions of Dr. McKinney should have been adopted over those of Dr. Szalapski and argues that the employee’s conditions could not have resolved because he continued to treat for an additional two years.
Again, it is within the purview of the compensation judge as the trier of fact to resolve conflicts in expert testimony. Gianotti v. Indep. Sch. Dist. No. 152, 889 N.W.2d 796, 803, 77 W.C.D. 117, 126 (Minn. 2017). Absent an abuse of discretion, a judge’s choice of conflicting opinions is upheld on appeal. Mattick v. HyVee Food Stores, 898 N.W.2d 616, 77 W.C.D. 617 (Minn. 2017). Here, the compensation judge noted instances in which the opinions of Dr. McKinney were inconsistent with other evidence, as well as instances in which his opinions overlapped with those of Dr. Szalapski. Ultimately, the compensation judge found the opinions of Dr. Szalapski to be more persuasive than those of Dr. McKinney. The compensation judge also relied on a number of factors in making her findings. These factors included the diagnosis of soft tissue sprains/strains made by several providers and her determination that the chiropractic notes were an unreliable source of information as they appeared to be cut and pasted. The judge also questioned the credibility of the employee regarding his medical history and his lack of any improvement despite various treatment modalities. Substantial evidence, including Dr. Szalapski’s opinions, supports the compensation judge’s findings that the employee’s neck and back injuries had resolved and we affirm.
The compensation judge also found the employee did not conduct a reasonable and diligent job search from August 2018, when his temporary neck and back injuries due to the work injury had resolved, through the date of the July 2022 hearing. The employee argues on appeal that his physical condition related to the work injury prevented him from working as a dock truck driver and that the COVID-19 pandemic prevented him from working in any light duty or hospitality-type job.
“Whether an injured employee makes a reasonably diligent search for suitable employment is a question of fact which must be upheld unless manifestly contrary to the evidence.” Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987) (citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983)). Here, over the course of this nearly four-year period, the employee has held one short-term position dealing blackjack at events. He testified to working in this position 10 to 12 times for three hours at a time between November 2019 and February 2020, when the job was impacted by the COVID-19 pandemic.[2] There is no evidence in the record that the employee conducted a job search. The compensation judge’s finding that the employee failed to conduct a reasonable and diligent job search from August 2018 through the date of the hearing is supported by substantial evidence in the record, and is therefore, affirmed.
Finally, the employee argues that the compensation judge erred in not calculating the employee’s weekly wage based upon his gross commissions earned before expenses were deducted and that the correct weekly wage calculation is $2,509.35. At the hearing, the parties stipulated:
On April 16, 2018, Howard H. Thompson’s average weekly wage from On Time Delivery Service (“On Time”) is correctly calculated at $2,509.35 if expenses are included, and at $1,801.41 if expenses are not included.[3]
In Finding 6, the judge found the weekly wage should not include reimbursement for expenses actually incurred, citing Lukat v. North Star Home Care, slip op. (W.C.C.A. Apr. 25, 2001).
According to the wage records in evidence and the testimony offered at hearing, the employee was paid a commission from which various expenses were deducted. Those expenses included payment to cover the employer’s lease of the truck and mileage, vehicle insurance coverage, and lease of a phone.[4] Relying on Lukat, the compensation judge concluded that the expenses deducted from the employee’s earnings should not be considered wages for purposes of calculating weekly wage. In Lukat, this court stated, “in cases involving direct payment or reimbursement of actual expenses, we have held that such payments are not compensation to the employee and are excluded from the wage calculation.” Lukat, slip op. at 5. This court also determined in Lukat that mileage reimbursements paid to the employee were reimbursements of actual expenses incurred rather than an allowance under Minn. Stat. § 176.011, subd. 3, and should not have been included in calculating the employee’s weekly wage.
In this case, no reimbursements were paid to the employee. Rather, deductions were made from the employee’s earnings as payment for actual expenses incurred, such as vehicle insurance coverage for the truck the employee used to make deliveries. These deducted expenses cannot be considered part of the employee’s income. The compensation judge did not err in excluding those amounts in determining the employee’s weekly wage to be $1,801.41 and we affirm.
For all the reasons stated above, we conclude that the compensation judge’s findings are supported by substantial evidence. Accordingly, we affirm.