While on assignment with employer, employee noticed trigger finger issues with both of his hands. At the time, employee and his supervisor were staying at the same hotel room while on the job. Employee showed his hands to his supervisor and indicated that they were hurting. Employee did not specifically ask for medical treatment regarding either of his hands at that time.
After his separation from employer on November 24, 2014, employee performed carpentry work for another employer for over two years, including building walls, installing ceiling tiles, performing trim work, painting, etc.
In June 2015, employee went to the Veteran's Administration with complaints of bilateral pain and catching of the third, fourth, and fifth fingers of both hands. On June 16, 2015, Dr. John Peterson diagnosed employee with bilateral trigger fingers. Employee proceeded to receive medical treatment for his left hand, including surgery in November 2015. Employee's left hand condition was the subject of a Workers' Compensation matter against employer. Employee filed the claim in connection with his left hand injuries on November 20, 2015¹, citing an injury date of November 24, 2014. Employee's claim against employer/insurer in Injury Number 14-105560 was resolved via settlement on February 17, 2017.
¹ We note that the administrative law judge's decision states November 2, 2015. We take administrative notice that the claim for the left hand was filed on November 20, 2015.
Injury No.: 14-106433
Employee: Wayne Terry
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Employee did not obtain surgery regarding his right hand until December 16, 2016. The December 16, 2016 surgery addressed employee's trigger fingering in his right middle and right ring fingers. After the surgery, the surgeon, Dr. Christopher Leslie, noted that "[t]here was no further triggering." Tr., p. 111.
Dr. Brian Swanson, of Leslie Orthopedics and Sports Medicine, later saw employee on January 10 and 24, 2017. The record does not contain Dr. Swanson's progress notes from those dates. However, Dr. Mitchell Mullins summarized those visits as follows:
1/10/2017 - Leslie Orthopedics & Sports Medicine
Brian Swanson, PA
Right MF and RF A-1 pulley release 12/16/2016. Hand is doing better but he still has some pain when trying to straighten his fingers out completely. Does not feel he is ready to go back to work. Mild right hand swelling. Mild tenderness to palpation around incision. No obvious triggering noted. Sutures removed. Keep incision dry for 48 hours. Continue off work.
1/24/2017 - Leslie Orthopedics & Sports Medicine
Brian Swanson, PA
Followup. Hand and fingers are doing very well. Does have a little stiffness and soreness in the hand and fingers. Scheduled to return to work in February and feels he is ready. Mild swelling right hand. Mild tenderness to palpation around the incision. No obvious triggering noted. Released to return to work on 2/5/2017. Okay to use the hand as tolerated. Continue with AAT. Follow up as needed.
Tr., p. 103. We find that employee was unable to work from the date of the surgery on December 16, 2016 through February 5, 2017.
Employee filed this claim regarding his right-hand trigger fingers on March 15, 2017, with an injury date of November 23, 2014. Employee claims $15,666.00 in past medical expenses, including the surgery on December 16, 2016, and $206.00 in mileage expenses in order to travel to his medical appointments. Although the surgery was performed through the Veteran's Administration, there is no evidence that the Veteran's Administration waived its right to place a lien on any compensation awarded to pay for its expenses on employee's behalf, or otherwise that employee's liability in connection with this treatment has been extinguished.
On April 18, 2017, employee saw Dr. Mitchell Mullins for an examination and evaluation. At that visit, employee complained of daily pain in his right hand, cramping at night in his fingers, and very stiff fingers that caused "significant pain trying to straighten the fingers." Tr., p. 70. Employee also indicated to Dr. Mullins, that "[p]ostoperatively, he has not done as well as he did with the left hand. He describes pain with extension of his middle and ring finger and the development of triggering with his left thumb." Tr., p. 77.
In his evaluation report, Dr. Mullins indicated that employee's right-hand injuries were sustained as a result of his work for employer and stated:
It is my opinion the strenuous repetitive work done while at [employer] on or before 11/23/2014 was the prevailing factor causing stenosing tenosynovitis to the right hand and multiple digits and the subsequent Dupuytren's contracture.
Injury No.: 14-106433
Employee: Wayne Terry
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Tr., p. 78. This was the first time employee received an official diagnosis that his right hand trigger fingers were work-related.
Although Dr. Mullins did not find that employee was at maximum medical improvement, he rated employee's right hand at 42% permanent partial disability, "due to the multiple digits involved with persistent triggering at the thumb, and development of an early Dupuytren's contracture." Id. Dr. Mullins stated that his rating was based on how employee was that day and "assumes no other care is provided. Should further care be provided, this rating may change." Id. Dr. Mullins suggested that employee receive steroid injections in his thumb and possibly in his right ring finger and middle finger. If that treatment did not resolve employee's issues, Dr. Mullins suggested further surgery.
There is no evidence in the record that employee obtained further treatment for his right hand after his December 16, 2016 surgery. At employee's deposition on June 7, 2017, employee did not have any scheduled appointments with Dr. Leslie to discuss the treatment Dr. Mullins recommended; employee stated that he was waiting for the Veteran's Administration to set up the appointment.
On September 5, 2017, employer's expert, Dr. Michael Hall, performed an independent medical examination. During that examination, Dr. Hall opined that employee was malingering. However, Dr. Hall also opined as follows, "I am giving him the benefit of doubt stating this particular job is the prevailing factor for his need for surgical treatment of his trigger fingers." Tr., p. 197. Dr. Hall did not provide any rating, but stated, "I know for sure he does not have a 42% disability of a hand." Id. Dr. Hall also found "[n]o evidence of dupuytren's disease." Tr., p. 196.
Dr. Hall noted that employee could still work 12-hour days as a trim carpenter. Dr. Hall stated that such work required "nearly all the same tools[,] but at a slower speed; he uses hammers, nail guns, and saws." Id. Dr. Hall ended his report, concluding, "[w]ith a benefit of doubt, I do believe his job is the prevailing factor for why he required surgical intervention for multiple trigger fingers. However, it is not responsible for any future medical care under this claim." Tr., p. 198.
While Dr. Hall did not provide a rating of permanent partial disability, he did indicate that employee was at maximum medical improvement by stating the following in his report:
> I know for sure he followed up two times after his surgery with Dr. Leslie because I called that physician. Dr. Leslie last saw him on January 24th and he documented [employee] told him he was doing great and did not think that he had any issues. Dr. Leslie did not think there would be any need for the gentleman to come back.
Tr., p. 197 (emphasis in original). Regardless on the truth or falsity of what Dr. Hall heard from Dr. Leslie, Dr. Hall implied that employee reached maximum medical improvement by January 24, 2017, and that there was no more need for further treatment at that time.
With regard to the issue of when employee reached maximum medical improvement, we find that Dr. Hall was more persuasive in his report than Dr. Mullins. Therefore, we conclude that employee's maximum medical improvement date was on January 24, 2017.
Later, on April 19, 2018, Dr. Hall wrote a letter to employer's counsel, which stated as follows, in pertinent part:
MNKOI 0000913456
Injury No.: 14-106433
Employee: Wayne Terry
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As I stated, [employee's] trigger fingers and only the trigger fingers are secondary to [employee's] job at [employer]. His multiple complaints he expressed to me on September 5, 2017 have nothing to do with his job at [employer]. To make it absolutely clear again, all of his complaints and whatever treatment if any that could be done for them are not [employer's] responsibility because the prevailing factor is not [employer].
Any questions or concerns regarding this feel free to contact me.
Tr., p. 193, (emphasis in original).
We find Dr. Hall's opinion persuasive that employee's work with employer was the prevailing factor for employee's trigger finger condition regarding his right middle and right ring fingers. We also find, that the December 16, 2016 surgery was reasonably required to cure and relieve the effects of employee's right-hand trigger finger injury.
With regard to permanent partial disability, given that Dr. Hall did not rate any permanent disability, we infer that he believed there was none. We further do not find persuasive Dr. Mullins's rating of 42% permanent partial disability regarding employee's right-hand because Dr. Mullins's rating included employee's thumb. More importantly, Dr. Mullins made clear this rating was based on how employee was the day of his examination, assuming no future treatment. Dr. Mullins then opined that employee was not at maximum medical improvement and that he needed more treatment, including possibly surgery.
Employee did not provide testimony to explain his choice to proceed to a hearing where he alleged and sought an award of permanent partial disability, where his own expert opined that he needed more treatment, including surgery. We do not accept employee's implied invitation to award what strikes us as a truly excessive amount of permanent partial disability benefits based on a specifically conditional rating provided by a doctor who was urging that employee seek more treatment to improve his permanent level of disability. Nor are we inclined to enter a temporary award, giv