Bromwich v. Massage Envy Roseville, et. al., No. WC17-6065 (W.C>C>A> October 18, 2017).
This interesting case addresses three issues on appeal: (1) Causation, (2) Choice of Medical Expert, and (3) Job Search. The WCCA affirmed Judge Daly’s Findings and Order.
The employee was employed by employer as a massage therapist. She was restricted from performing deep tissue massage as a result of a pre-existing neck condition. On April 27, 2015, the employee’s right wrist folded back with an audible snapping/popping sound, which, according to the employee, was followed by a migraine headache.
The employee first treated with a chiropractor, who took the employee off of work pending further medical examination. The employee’s doctor examined her, and diagnosed her with tendonitis. Three months later, the employee began treating with Dr. Michael Forseth, who issued a diagnosis of tenosynovitis and tendinitis. He released the employee to work with significant restrictions, and indicated that if employer could not accommodate those restrictions, then the employee “must be off work.”
The employee underwent a procedure on January 4, 2016. On February 1, 2016, she was released to work with the same significant restrictions as before. The employer did not provide work within those restrictions. Dr. Forseth then took the employee off of work entirely 2 months later.
Shortly after vocational services started, the employer informed the QRC that the employee was still employed, but no work was available. Dr. Forseth said the employee could expect a full recovery and return to work with the employer as a massage therapist.
Dr. Manitou performed an IME exam, whose report diagnosed the employee with proliferative extensor tenosynovitis of the right wrist of idiopathic onset, not work-related. The employee continued treating for ongoing pain, and underwent a second procedure on July 25, 2016. The employee did not improve. On October 6, 2016, Dr. Forseth issued a report indicating 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.” He issued permanent work restrictions. The employee declined to participate in a functional capacity evaluation (FCE). She returned job logs, after some prompting, showing that she followed up on leads, but she was not qualified or the positions required work beyond her restrictions.
Judge Daly issued his Findings and Order after a February 15, 2017 hearing regarding the employee’s Claim Petition, on which she sought temporary total disability (TTD) benefits, payment of medical expenses, and continued rehabilitation services. Judge Daly found a work injury, found the employee’s testimony was credible regarding nature and source of symptoms, found Dr. Forseth’s narrative report persuasive as to causation, found employee was entitled to TTD benefits because of her cooperation with the rehabilitation plan.
The assessment of a witness’ credibility is the unique function of the trier of fact (Compensation Judge in this case). The WCCA must uphold findings based on conflicting evidence. In this case, Judge Daly found the employee’s testimony credible, and the WCCA held that substantial evidence supports Judge Daly’s determination.
Choice of Medical Expert
The employer and insurer contend that Judge Daly erred in adopting Dr. Forseth’s opinion because he was unable to provide “absolute medical certainty” regarding causation. The WCCA held that Dr. Forseth relied on facts from treating the employee, including two surgical procedures, and those facts are consistent with the judge’s determination regarding causation. 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.” Substantial evidence supports the decision on causation, decision affirmed.
The WCCA stated that the employee maintains eligibility for benefits by cooperating with the rehabilitation plan, developed by the QRC and agreed to by the employee and employer and insurer. The compensation judge determines if the employee cooperated with the plan. Based on the facts in this case (the rehab plan job search agreement was entered into December 19, 2016; first job leads were sent to employee on December 19, 2016, the employee followed up on leads, the hearing was February 15, 2017), the WCCA affirmed Judge Daly’s decision that the minimal number of job contacts met the employee’s obligation to cooperate with the plan. Affirmed.