JAMES P. JOYCE, Jr., Employee/Appellant, v. LEWIS BOLT & NUT CO. and GREAT AM. INS. CO., Employer-Insurer, and SPECIAL COMPENSATION FUND.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 20, 2002
APPEALS - RECORD; PRACTICE & PROCEDURE - DISMISSAL. Where no record was made of the proceedings before the compensation judge leading to the judge=s order dismissing the employee=s claim on the basis that the employee provided no medical support showing a rating in excess of the 14% previously closed out by stipulation in 1992, the order is vacated and the matter remanded for further proceedings.
Vacated and remanded.
Determined by: Johnson, C.J., Wilson, J., and Rykken, J.
Compensation Judge: Kathleen Behounek
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge=s order dismissing the employee=s claim petition with prejudice. We vacate the order of dismissal and remand the case to the Office of Administrative Hearings for further proceedings.
James P. Joyce, Jr., the employee, worked for Lewis Bolt & Nut Company, the employer, from 1974 through June 15, 1984, when he sustained the last of several work-related low back injuries. In February of 1992, the parties entered into a Stipulation for Settlement. The employee then claimed entitlement to various benefits, including a claim for a 14 percent whole body disability due to an injury to his L3-4 disc. The Stipulation for Settlement resolved all of the employee=s claims to the date of the stipulation, specifically including resolution of the 14 percent permanent partial disability claim as a result of the claimed L3-4 disc injury. An Award on Stipulation was filed on February 21, 1992.
On May 12, 1998, the employee returned to see Dr. John A. Dowdle complaining of severe left-sided leg pain. The doctor stated the employee had a disc herniation at L3-4 which they had treated conservatively without success. The doctor recommended surgery. On June 8, 1998, Dr. Dowdle performed a lumbar laminectomy and disc excision at L3-4 on the left. The doctor=s post-operative diagnosis was a herniated disc and degenerative disc disease at L3-4 with L4 left radiculitis. On May 25, 1999, Dr. Dowdle opined the employee had reached maximum medical improvement (MMI) and he rated an 11 percent whole body disability under Minn. R. 5223.0390, subps. 4.D. and 4.D.(2).
On November 1, 1999, the employee, through his attorney, filed a claim petition seeking payment of an 11 percent whole body disability secondary to his admitted personal injuries. Attached to the claim petition was a letter from Dr. John A. Dowdle dated September 15, 1999, which stated:
In response to your questions regarding James Joyce, he has an additional 11% of the body as a whole. His previous fusion was at the L-4 and 5-1 level. This is a level above that has never been rated or operated or treated before. It is a transitional level above a previous fusion. It is my opinion it is related to the previous condition of his back and there is an additional 11% permanency.
On January 24, 2000, the employer and insurer filed a motion to dismiss the employee=s claim petition contending the employee=s claim petition failed to state a claim upon which relief could be granted. They asserted the report of Dr. Wengler failed to establish the employee had any permanent partial disability at the L3-4 disc level in excess of the 14 percent permanent partial disability closed out in the 1992 Stipulation for Settlement. By response filed January 28, 2000, the employee contended his current claim was based on a new surgery and a new rating of an additional 11 percent permanent disability. The employee further asserted factual issues were in dispute so a motion for dismissal was not appropriate. By order dated February 23, 2000, Judge Behounek denied the motion concluding the issues presented by the claim petition required a factual determination by a compensation judge at a hearing.
On May 29, 2001, the employee filed a second claim petition seeking payment of a 13 percent whole body disability. Attached to this claim petition was a letter from Dr. Robert A. Wengler dated April 6, 2001 which stated:
I saw James Joyce in my office today for independent medical examination. Enclosed is a copy of my orthopedic consultation. In response to the questions raised in your letter of June 28, 2000, the L3-4 disc deteriorated and herniated because of its position above the previous spine fusion. It was my stated opinion in 1990 that if this proved to be so Mr. Joyce would be eligible for an additional 14% whole body impairment. The herniation was documented by the MRI that was done in May of 1999. Mr. Joyce underwent yet another surgical procedure with no symptomatic improvement. Under old rules he is allowed 13% whole body impairment under Rule 5223.0070, Subp. 1.B.(2)(c).
By order dated June 12, 2001, the two claim petitions were consolidated. The deposition of Dr. Wengler was taken on August 14, 2001. On August 28, 2001, counsel for the employer and insurer moved to dismiss the employee=s claim petition. They contended neither the report of Dr. Wengler or Dr. Dowdle establish that the employee has any permanent partial disability at the L3-4 disc level in excess of the 14 percent permanent partial disability closed out in the 1992 Stipulation for Settlement. By letter filed September 21, 2000, the employee objected to the employer=s motion for the same reasons set forth in the prior response. The employee again contended factual issues were in dispute. On October 1, 2001, the parties attended a Pretrial on Motion to Reinstate before Judge Behounek. On October 15, 2001, the compensation judge issued an order dismissing the employee=s petitions filed November 1, 1999 and May 29, 2001, with prejudice. The employee appeals.
The employee contends the compensation judge erred in dismissing his claim petition. He contends there is medical evidence the compensation judge did not review at the pretrial and contends factual issues are in dispute which require a hearing. In response, the employer and insurer argue the employee failed to establish he has sustained any permanent partial disability in excess of the 14 percent paid under the 1992 stipulation. Accordingly, they assert the compensation judge properly dismissed the employee=s claim petition.
Minn. Stat. ' 176.291(5) requires a claim petition include Acopies of written medical reports or other information in support of the claim.@ The statue further provides that incomplete claim petitions Amay be stricken from the calendar as provided by ' 176.305, subd. 4.@ The employer and insurer argue the medical reports attached to the employee=s claim petition provide insufficient support for his claim. They assert the compensation judge, therefore, had authority to dismiss the employee=s claim petition. We disagree.
The medical reports of Dr. Dowdle and Dr. Wengler do provide at least minimal support for the employee=s claim. Whether these medical reports are legally adequate to support an award of permanent partial disability benefits is another issue. Typically, a determination of such an issue requires resolution of disputed factual questions. In such case, Minn. Stat. ' 176.291(5) is inapplicable.
Minn. Stat. ' 176.322, allows a compensation judge to determine a matter if Athe parties agree to a stipulated set of facts and only legal issues remain.@ In this case, there is no stipulated set of facts agreed to by the parties. The employee, in his responses to the employer=s motions to dismiss and again on appeal, contends there are factual issues in dispute. In his appellate brief, however, the employee did not identify any specific disputed factual issues. Nevertheless, we conclude the compensation judge=s dismissal of the employee=s claim petition must be vacated.
No record was made of the proceedings before the compensation judge leading to the dismissal order. Accordingly, we cannot determine what occurred at the pretrial regarding the dismissal motion. In her memorandum, the compensation judge refers to medical support for the claim based on Dr. Wengler=s and Dr. Dowdle=s ratings of the employee=s permanent partial disability. Beyond this statement, however, we do not know what evidence the compensation judge considered in deciding to dismiss the employee=s claim petition. Absent any record, this court has an inadequate basis to review the compensation judge=s order. See Zuehlke v. Penrose Oil Co., slip op. (W.C.C.A. January 24, 2001). We therefore vacate the compensation judge=s dismissal order of October 15, 2001, and remand the case to the Office of Administrative Hearings for further proceedings.
 The factual background is drawn from the pleadings and the briefs of counsel.