ANNE H. SCHMIDT, Employee/Appellant,
v.
BOISE PAPER SOLUTIONS, SELF-INSURED, Employer.
No. WC06-103
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
July 31, 2006
HEADNOTES
TEMPORARY
BENEFITS - SUBSTANTIAL EVIDENCE. Where the compensation
judge's findings were detailed and his memorandum
substantial, where the medical records were complex and
exhaustive, where the judge cited several specific details
from the opinions of medical experts whose conclusion
differed from his, there was no evidence that the judge's
review of the evidence had been insufficiently thorough so as
to warrant remand for reconsideration of his denial of the
employee's claim for wage replacement benefits,
particularly in light of the employee's repeatedly normal
EMGs and repeatedly almost normal findings on physical
examination both before and after the period of her claim.
PRACTICE
& PROCEDURE - MATTERS AT ISSUE; PERMANENT PARTIAL
DISABILITY. An employer's initial admission of
liability for an alleged work injury to the extent of
agreeing to pay for immediately subsequent medical treatment
or wage replacement does not necessarily constitute a
permanent admission of liability with regard to permanency
benefits. Where the employer had paid medical and wage
replacement benefits for an admitted 1993 carpal tunnel
injury, including the cost of surgery, and where the
compensation judge in denying wage replacement benefits for a
1997 and a 2003 work injury had relied on a medical opinion
that the employee's care throughout the case had been
excessive or unnecessary, it was not a breach of discretion
for the compensation judge to find the issue of permanency
for the 1993 carpal tunnel injury insufficiently pled and
litigated in light of the fact that the employee had not
listed a 1993 date of injury on her claim petition - -
notwithstanding that the petition had sought permanency
benefits for an unspecified carpal tunnel injury and medical
records in evidence clearly indicated that employee's
only carpal tunnel injury was the 1993 injury.
Affirmed.
Michael A. Jaksa, Shermoen & Jaksa, International Falls,
MN, for the Appellant.
Edward
Q. Cassidy, Felhaber Larson Fenlon & Vogt, St. Paul, MN,
for the Respondent.
Determined
by: Pederson, J., Johnson, C. J., and Rykken, J.
Compensation
Judge:Gregory A. Bonovetz
OPINION
WILLIAM R. PEDERSON, Judge
The
employee appeals from the compensation judge's denial of
wage replacement benefits consequent to an admitted work
injury on February 19, 1997, and/or a claimed work injury on
February 9, 2003, and from the judge's denial of
permanent partial disability benefits consequent to a May 6,
1993, work injury. We affirm.
BACKGROUND
The
medical treatment history here relevant is extensive and
complex. On about May 6, 1993, Anne
Schmidt1 experienced swelling in both wrists
and discoloration in the right while doing work as a
millwright in the course of her employment as a
"vibration technician" with Boise Paper
Solutions. When she sought medical attention about a
week later for specifically the right wrist, x-rays revealed
no evidence of fracture, and Dr. R. Nicholas Trane diagnosed
right wrist sprain, prescribed Naprosyn, and recommended
icing, the use of splints, and no use of the wrist for a
week. Ms. Schmidt subsequently treated briefly with the
company physician, Dr. Jon Talsness, who, in a
Physician's Report dated August 17, 1993, indicated that
permanent disability was unlikely and that further medical
care was unnecessary. Symptoms persisted, however, and
on September 28, 1993, Ms. Schmidt underwent an EMG that
revealed borderline to mild carpal tunnel syndrome. It
was determined on October 26, 1993, that Ms. Schmidt should
be treated nonsurgically for her condition, and in a
Physician's Report dated February 21, 1994, Dr. Mark
Carlson indicated that Ms. Schmidt had reached maximum
medical improvement [MMI] with regard to her May 1993 work
injury on December 1, 1993, subject to a 3% permanent partial
disability of the whole body.
Ms.
Schmidt continued to work without surgery for another year,
but symptoms continued, and on December 8, 1994, she saw
orthopedic surgeon Dr. Thomas Kaiser, to whom she complained
of numbness and tingling in the thumb, index finger, and long
finger in her problematic right hand. Dr. Kaiser
diagnosed carpal tunnel syndrome and flexor tenosynovitis and
referred Ms. Schmidt for an EMG of the right upper
extremity. The EMG was conducted on January 13, 1995,
and proved normal, and Dr. Kaiser released Ms. Schmidt to
return to work without restrictions and without
surgery. On April 5, 1995, Ms. Schmidt again sought
medical attention, at Orthopaedic Associates of Duluth, and
x-rays again proved unremarkable. An MRI scan of the
right distal forearm conducted on April 18, 1995, also proved
essentially normal, but nevertheless, with symptoms
continuing even in spite of a cortisone injection, on
September 21, 1995, Ms. Schmidt underwent right carpal tunnel
release surgery, performed by Dr. Peter Goldschmidt. She
returned to one-handed work the day after the surgery, and by
December 6, 1995, Dr. Goldsmith was reporting that Ms.
Schmidt was "very pleased with the result" of her
surgery, with "no recurrence of her symptoms," and
he released her to return to full duty at her job.
A
little over a year later, on February 19, 1997, Ms. Schmidt
sustained another injury to her right arm while working with
a wrench in the course of her employment as a vibration
technician with Boise Paper Solutions. Ms. Schmidt [the
employee] was forty-one years old on that date and was
earning a weekly wage of $731.32. Boise Paper Solutions
[the employer], self-insured at the time against workers'
compensation liability, admitted liability for the injury and
eventually paid temporary total disability benefits for
September 17 and 18, 1997, and temporary partial disability
benefits for May 18, 2000, and for a period from February 24,
2003, through March 2, 2003. On March 5, 1997, the
employee commenced treatment with her family physician, Dr.
Daniel Ramquist. Dr. Ramquist diagnosed "lateral
epicondylitis, tennis elbow," administered a cortisone
injection, and released the employee to work subject to
restrictions against lifting over twenty-five pounds and
doing any prolonged gripping manipulations. On April 15,
1997, Dr. Ramquist released the employee to return to her
full work activity on April 18, 1997, without restriction,
and on July 28, 1997, he completed a Health Care Provider
Report on which he indicated that the employee had reached
MMI with regard to her February 19, 1997, injury on April 18,
1997. Eventually the employee's complaints returned,
however, and Dr. Ramquist referred the employee back to Dr.
Goldschmidt, who ordered another EMG. The EMG, which was
conducted on September 4, 1997, was read to reveal a probable
mild to moderate right posterior interosseous neuropathy, and
on September 17, 1997, under a diagnosis of radial tunnel
syndrome, Dr. Goldschmidt performed a radial nerve
exploration and release.
Subsequent
to her surgery, the employee returned to her job as a
vibration technician, but, although that job was apparently
not as physically demanding as had been her former job as a
millwright, she had continuing weakness in her forearm and
wrist, and she was referred for physical therapy, which she
commenced on April 14, 1998. On May 21, 1998, her case
manager, Wende Morrell, issued a report in reply to a query
of the employer, in which she concluded that the employee was
physically capable of performing her job in vibration
maintenance without restrictions. The employee completed
her physical therapy regimen on June 23, 1998, after definite
improvement, although some swelling and soreness
remained. Her symptoms apparently continued, however,
and on November 2 and 3, 1998, she underwent a functional
capacities examination [FCE]. The FCE revealed slightly
below normal grip strength and coordination in her right
hand, decreased overall strength and endurance in her right
upper extremity for overhead lifting, elevated work, pushing,
and repetitive coordination tasks, and increased complaints
of pain and neurological symptoms with right upper extremity
use. The FCE resulted, in part, in recommendations that
the employee consider taking a vacation from work in order to
monitor her upper extremity symptoms, "to identify if
any improvements occur," and that she consult further
with a rehabilitation professional regarding the possibility
of additional work accommodations or alternative job
options. Upon those recommendations, the employer
transferred the employee from her...
