Santelli v. Wal-Mart, et. al, No. WC17-6085 (W.C.C.A. January 24, 2018)
Teresa Santelli (“employee”) began working for Wal-Mart (“employer”) in November 2010, in the bakery department. On October 11, 2012, she lifted a frozen box of Italian bread weighing about 25 pounds. She dropped it, and over-extended her left arm and shoulder while she tried to catch it. She was not able to lift her arm, and felt pain in her arm shortly afterwards. She was seen at Allina Medical Clinic – Coon Rapids a few days later and was diagnosed with a shoulder sprain. She was given work restrictions, which the employer accommodated, from October 15, 2012 through July 9, 2013. She was found to be at maximum medical improvement with 95% improvement, 0% permanent partial disability and released without restrictions as of July 9, 2013.
In 2014, the employee was transferred to the pets department. Her job duties included stocking shelves of pet food, cat litter and other products. She testified that the job involved heavy lifting with bags of dog food weighting up to 90 or 100 pounds. She noticed pain in her left shoulder after some time working in this department. On October 12, 2014 the employee was throwing cardboard into a baler when she noticed increased symptoms in the top of the shoulder and into her collarbone and shoulder blade. She returned to her treating physician on October 17, 2014 and he concluded she exacerbated her earlier work injury. He placed her on restrictions, which the employer accommodated. The employee continued to treat for her left shoulder. Her treatment included, among other things, physical therapy and a therapeutic injection. Her treating doctor believed she should have a left total shoulder arthroplasty.
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. The vocational goal at that time 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. She suffered a left shoulder displaced surgical neck fracture. She was off of work for five months, but did return to work for the employer with restrictions in December 2015. Her treating doctor noted she had returned to her baseline condition at that time.
Dr. Stephen Barron performed an independent medical examination and a medical record review at the request of the employer and insurer. He found that her shoulder problems were the result of a pre-existing degenerative process not related to her work for the employer. He opined that the October 2012 injury resolved by July 2013 when her doctor released her to return to work without restrictions, and 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 her job on November 17, 2016, on the grounds of excessive absences and/or tardiness. On November 22, 2016 she filed a medical request for approval of a left shoulder replacement surgery. The employer and insurer filed a rehabilitation request to terminate vocational rehabilitation services based on the medical opinion that her symptoms and restrictions were not related to her work injury. The rehabilitation request was granted, and the employee filed a request for a formal hearing on that issue. The employee filed a claim petition for temporary total disability benefits, vocational rehabilitation benefits and attorney fees. These pleadings were consolidated for hearing.
A hearing was held before Compensation Judge William Marshall. He found that the surgery recommended by her treating doctor was reasonable, necessary, and casually related to her work injuries. He awarded temporary total disability benefits from November 18, 2016 to the date of the hearing and continuing. He found that vocational rehabilitation services were reasonable. The employer and insurer appealed.
The employer and insurer argued on appeal that the left shoulder replacement surgery was not allowed under the treatment parameters in Minn. R. 5221.6300, and that the compensation judge erred in failing to address this issue. The W.C.C.A. found that the treatment parameters do not apply when 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 treatment. “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.’” citing Mattson v. Northwest Airlines, slip op. (W.C.C.A. Nov. 29, 1999).
The employer and insurer argued that she was terminated for reasons unrelated to her work injuries and therefore was not entitled to temporary total disability benefits. According to the W.C.C.A., the issue for the compensation judge was whether she had work-related restrictions and looked for work within those restrictions, unless the judge concluded that a job search would be futile. The employee had testified about her limitations and restrictions in daily activity. Her QRC testified that a job search before the proposed left shoulder replacement surgery was not practical. Her QRC also testified that pre-placement activities would be more appropriate. The W.C.C.A. found that a compensation judge could reasonably conclude that the prospective surgery effectively rendered a job search futile.
The employer and insurer also argued that rehabilitation services received by the employee after her termination were not reasonable or related to her work injury. The employer and insurer argued that the employer had been willing to accommodate the employee in the past and that the reason for her termination was for excessive absences and tardiness. They also pointed out that she could return to work for the employer, as she was eligible to reapply for work with the employer. Since the W.C.C.A. affirmed the compensation judge’s finding that her current condition and need for surgery was related to her work injuries, the employee had applied for several jobs and a job search at that time would be futile, the claimed vocational rehabilitation services were reasonable.