BRADLEY J. BAIRD, Employee/Appellant, v. ASSOCIATED PIPELINE CONTRACTORS and LIBERTY MUT. INS. CO., Employer/Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MAY 24, 2002
MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Substantial evidence, including expert medical opinion, supports the compensation judge=s findings that the employee has reached maximum medical improvement and was served with notice of maximum medical improvement on April 19, 2001.
Determined by: Rykken, J., Wilson, J., and Johnson, C.J.
Compensation Judge: James R. Otto
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that he has reached maximum medical improvement and the compensation judge=s denial of temporary total disability benefits from and after July 18, 2001. We affirm.
On July 6, 2000, Bradley Baird, the employee, sustained an injury to his lumbar spine that arose out of and in the course of his employment for Associated Pipeline Contractors, the employer. On that date, the employee was 20 years old. The employer was insured at the time by Liberty Mutual Insurance Company, the insurer.
On July 6, 2000, the employee worked as a heavy laborer for the employer. As he was installing a suction hose to remove water from a ditch, he lost his footing, slipping and falling into a water hole. He became stuck in mud, and to extricate himself, he grabbed onto a hook on the bucket of a backhoe in order to be pulled out of the mud. Within a few minutes, the employee experienced pain in his low back, radiating into both legs, and was unable to complete his work that day. He initially reported to the emergency room in Wheaton, Minnesota; x-rays taken that day were normal. On July 12, 2000, the employee consulted Dr. Kurt Schwieters who diagnosed low back pain and Aprobable muscle strain or possible disc problem.@ He prescribed physical therapy and restricted the employee from work. By July 25, 2000, the employee reported that he was not improving with physical therapy and that he was not working due to his low back pain. Dr. Schwieters diagnosed probable lumbar strain with associated low back pain, and recommended an MRI scan, as the employee continued to have difficulty with bending, twisting or any repetitive motion. An MRI scan taken on July 28, 2000, was negative. Thereafter, Dr. Schwieters diagnosed an acute lumbar sprain/strain, prescribed Relafen and Flexeril, and continued to restrict the employee from work.
The employee received follow-up medical treatment from Dr. Schwieters and also from Dr. John Geiser, St. Cloud Orthopedic Associates. At Dr. Geiser=s recommendation, the employee underwent a CT scan on September 20, 2000, which indicated posterior disc bulges from L3-4 through L5-S1 without significant spinal stenosis, and osseous sclerosis involving the L5 pars defects bilaterally. A SPECT imaging bone scan was performed on October 11, 2000, and showed no evidence of any acute injury in the pars area at L5. However, findings on that scan indicated a possible sacral fracture, and the radiologist who conducted that scan recommended an MRI of the sacral area to rule out a fracture or abnormality in that region. That MRI was performed on November 6, 2000, and was interpreted as being normal.
After reviewing the MRI results, Dr. Geiser advised that he had no definite explanation for the employee=s ongoing disability, and suggested a rehabilitation and reconditioning program to facilitate the employee=s return to work. By late November 2000, Dr. Geiser released the employee to return to work on a light-duty basis. He also suggested that the employee be evaluated by a physiatrist at St. Cloud Hospital and be considered for inclusion in the Med-X rehabilitation program at that hospital.
On December 12, 2000, at Dr. Geiser=s referral, the employee consulted Dr. Thomas Balfanz, a physical medicine and rehabilitation specialist. Dr. Balfanz diagnosed a musculoligamentous strain and lumbar spine deconditioning syndrome with a possible element of facet and overlying muscle irritation. Dr. Balfanz prescribed a lumbar spine strengthening rehabilitation program for eight to twelve weeks (Med-X program), aerobic exercise, stretching, careful body mechanics instruction and home exercises. He released the employee to return to work within physical work restrictions. Dr. Balfanz re-examined the employee on January 16, 2001. The employee reported that he did not feel much improved but felt that the spinal rehabilitation program was superior to the past therapy he had undergone. Dr. Balfanz concluded that the employee had achieved a 10 percent improvement in workload with his lumbar extensors, and recommended that the employee continue the current program for three weeks.
On March 1, 2001, the employee reported no improvement from the six weeks of therapy; Dr. Balfanz discontinued that therapy as the employee was not tolerating the exercises. Dr. Balfanz referred the employee to Dr. Maria Zorawska, Institute for Low Back and Neck Care, for evaluation, and also proposed a functional capacity evaluation and permanent restrictions depending on Dr. Zorawska=s recommendations. Dr. Zorawska examined the employee on March 20, 2001, recommended a repeat MRI scan of the lumbar spine, and released the employee to full-time light-duty work.
On March 23, 2001, Dr. Stephen Barron examined the employee at the request of the employer and insurer. He diagnosed a healed lumbar sprain as a result of the employee=s work injury on July 6, 2000, and concluded that the employee had a normal orthopedic evaluation of his lumbar spine. Dr. Barron acknowledged that the employee had subjective complaints, but stated that, in his opinion, those were unsubstantiated by any objective findings on examination. Dr. Barron concluded that the employee=s treatment program had been reasonable and medically necessary in relation to the employee=s July 6, 2000 injury, with the exception of the treatment with Dr. Zorawska and her recommendation for another MRI scan. Dr. Barron expressed his opinion that the Atreatment with Dr. Zorawska and the recommendation for an MRI scan is not reasonable, appropriate, or medically necessary because of the lack of any objective findings on examination at this time, as well as his prior negative x-ray studies[.]@ (Er. Ex. A.)
Based upon the lack of objective findings and normal orthopedic examination, Dr. Barron concluded that as of March 23, 2001, the employee had reached maximum medical improvement (MMI) relative to his July 6, 2000, injury, that the employee had not sustained any permanent impairment as a result of his work injury, and that the employee could return to work without any physical work restrictions relative to his employment or activities of daily living. Based on Dr. Barron=s opinions, the employer and insurer denied authorization for the additional MRI scan recommended by Dr. Zorawska.
On April 19, 2001, the employer and insurer served the employee with Dr. Barron=s medical report and notice of MMI, along with a notice of intention to discontinue benefits. The employee objected to that discontinuance, and an administrative conference was held on May 15, 2001. In an Order on Discontinuance pursuant to Minn. Stat. ' 176.239, filed May 15, 2001, a compensation judge concluded that reasonable grounds existed to discontinue the employee=s temporary total disability benefits based upon the employee=s attainment of MMI. The employee appealed from that decision and petitioned for a hearing de novo.
In a report dated August 16, 2001, Dr. Zorawska expressed her opinion that the employee had not yet reached MMI and that it was too early to determine whether the employee had sustained any permanent partial disability as a result of his work injury. In a report dated August 22, 2001, Dr. Balfanz expressed his opinion that the employee had not yet reached maximum medical improvement, since the employee had not yet undergone the repeat MRI scan recommended by Dr. Zorawska. Dr. Balfanz stated that he did not know what further course of treatment would be appropriate and that he left that decision to Dr. Zorawska.
A hearing was held on August 23, 2001, and in Findings and Order filed September 6, 2001, the compensation judge found that the employee reached MMI on or before January 19, 2001, which the judge stated was the date of the employee=s last visit with Dr. Balfanz. The compensation judge found that the employee was served with written notice of MMI on April 19, 2001, and therefore that temporary total disability benefits ceased 90 days following that notice, by July 18, 2001. The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The issue before this court is whether the compensation judge=s findings concerning maximum medical improvement are supported by substantial evidence of record, and are not clearly erroneous. The compensation judge found that the employee reached MMI on or before January 19, 2001, and that notice of MMI was served on the employee on April 19, 2001. The employee appeals, arguing that the compensation judge=s findings that the employee reached MMI are clearly erroneous and are not supported by substantial evidence in view of the entire record as submitted. The employee argues that the findings and order of the compensation judge are not in conformity with the Minnesota Workers= Compensation Act as they are not sufficiently detailed to provide a basis for review. The employee further asserts that additional medical evidence generated since the closing of the record supports the employee=s contention that he has not reached MMI and that this evidence should be considered by this court when rendering a decision. (Ee. Brief, p. 7.) Accordingly, the employee asks this court to vacate the compensation judge=s findings and order and remand to the compensation judge for reconsideration in view of the medical evidence received post-hearing.
Maximum medical improvement is statutorily defined as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@ Minn. Stat. ' 176.011, subd. 25. Maximum medical improvement is an issue of ultimate fact to be decided by the compensation judge after considering medical opinions, records, and other evidence, however, the opinion of a physician is not necessarily controlling. Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525 , 41 W.C.D. 634 (Minn. 1989). Additionally, maximum medical improvement occurs upon proof that the employee=s condition has stabilized and will likely show little improvement. Polski v. Consolidated Freight Ways, Inc., 39 W.C.D. 740 (W.C.C.A. 1987).
Factors to be considered by the compensation judge include the history of improvement, current treatment, pre-existing conditions, and proposed future treatment. That the employee remains disabled is not a determinative factor. As noted by the supreme court in Hammer, the statute allows for a determination that MMI has been reached (i.e., no further recovery or improvement can be anticipated) in a case where the employee is still totally disabled and unable to return to work. Hammer, 435 N.W.2d at 530, 41 W.C.D. at 641.
The employee first argues that the compensation judge=s finding concerning maximum medical improvement was clearly erroneous and unsupported by substantial evidence of record. The record contains conflicting medical opinions as to whether the employee has reached MMI. In August 2001, both Drs. Balfanz and Zorawska concluded that the employee had not yet reached MMI from his work-related injury. By contrast, Dr. Barron concluded that the employee reached MMI by March 23, 2001. He based his opinion on the employee=s negative radiographic studies, including two MRI scans and a CT scan, and on the lack of objective findings on examination. The employee argues that Drs. Balfanz and Zorawska recommended pursuing further diagnostic efforts in order to determine what treatment options should be pursued. Although proposed additional treatment can be a factor in determining whether an employee has reached MMI, the possibility of the need for medical treatment is not sufficient to sustain a denial of MMI where MMI is otherwise indicated by the evidence. See, Dodge v. Farmstead Foods, Inc., slip op. (W.C.C.A. March 12, 1992). In addition, we note that it is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld, Redgate v. Sroga=s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988), and the compensation judge could reasonably rely on Dr. Barron=s report when concluding that the employee has reached MMI.
The employee also argues that the compensation judge=s decision is not sufficiently detailed to provide a basis for review by this court, and therefore requests that the Findings and Order be vacated and remanded to allow additional evidence and redetermination. The employee argues that the compensation judge=s Findings and Order do not give a sufficient basis for reaching a conclusion concerning MMI. We disagree. A compensation judge is not required to refer to or discuss every piece of evidence introduced at the hearing. Regan v. VOA Nat=l Housing, 61 W.C.D. 142 (W.C.C.A. 2000); Braun v. St. John=s Univ., slip op. (W.C.C.A. July 20, 1992); see Rothwell v. Minn. Dep=t of Natural Resources, slip op. (W.C.C.A. Dec. 6, 1993). Through his reference to service of MMI on April 19, 2002, it is evident that the compensation judge reviewed Dr. Barron=s medical report of March 23, 2002, which was also served on the employee on April 19, 2002.
The compensation judge found that the employee reached MMI on or before January 19, 2001, referring to that date as being the employee=s last visit with Dr. Balfanz. We acknowledge that this was not the employee=s last visit with Dr. Balfanz; the employee again consulted Dr. Balfanz on March 1, 2001. However, the determinative date in the compensation judge=s findings is April 19, 2001, a date on which the parties acknowledge that the employer served notice of MMI on the employee, along with Dr. Stephen Barron=s report of March 23, 2001. Since there is no dispute that the employee was served with notice of MMI on April 19, 2001, and since Dr. Barron=s report provides a basis for the compensation judge=s determination that the employee has reached MMI, we affirm the compensation judge=s finding that the employee was served with notice of MMI on April 19, 2001, and that temporary total disability benefits ceased 90 days thereafter. Hengemuhle v. Long Prairie Jaycees, 358 N.W. 2d at 59, 37 W.C.D. at 239.
Employee=s Submission of Records Post-Hearing
The employee attached to his appellate brief reports and records from Dr. Zorawska dated October 8 and 29, 2001, in which Dr. Zorawska rendered a diagnostic opinion after reviewing the films of the employee=s MRI scan performed on July 28, 2000, and in which Dr. Zorawska recommends further medical treatment. The employee contends that a report from Dr. Zorawska was requested prior to the August 23, 2001, hearing, but was not received until October 2001, and requests that this court consider these records. The employee also requests that this court remand this matter to the compensation judge for reconsideration in view of the post-hearing records.
This court=s review on appeal from the findings and order of a compensation judge is limited to evidence submitted to the compensation judge. See Gollop v. Gollop, 389 N.W.2d 202 (Minn. 1986). Accordingly, the employee=s request for inclusion of supplemental reports into the record is denied.
 The employee testified about his initial medical treatment received on July 6, 2000. The record does not contain medical records from July 6, 2000.
 Minn. Stat. ' 176.011, subd. 25, as amended in 1995, provides that:
AMaximum medical improvement@ means the date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability, irrespective and regardless of subjective complaints of pain. Except where an employee is medically unable to continue working under ' 176.101, subd. 1, &(e), clause (2), once the date of maximum medical improvement has been determined, no further determinations of other dates of maximum medical improvement for that personal injury is permitted. A determination that an employee has reached maximum medical improvement shall not be rendered ineffective by the worsening of the employee=s medical condition and recovery therefrom.
 The date of January 19, 2001, is a typographical error, as the employee consulted Dr. Balfanz on January 16, 2001.