ALTA KINGBIRD, Employee/Appellant, v. ANDERSON FABRICS and ROYAL AND SUN ALLIANCE INS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 13, 2002
PRACTICE & PROCEDURE - ESTOPPEL. On the facts of this case, where the employer and insurer voluntarily accepted liability and the employee showed no loss as a result of the employer and insurer=s voluntary payment of worker=s compensation benefits, there is no basis for application of the doctrine of equitable estoppel.
TEMPORARY TOTAL DISABILITY - WORK RESTRICTIONS. Substantial evidence, including the opinions of the employer and insurer=s medical expert, support the compensation judge=s determination that the employee was released to return to work with no restrictions due to her work injuries, and the judge=s discontinuance of temporary total disability and rehabilitation benefits.
Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Carol A. Eckersen
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge=s determination that the employee was capable of returning to work without restrictions and from her order terminating rehabilitation services. We affirm.
Alta Kingbird, the employee, sustained an admitted injury to her right upper extremity on June 3, 1999, while employed by Anderson Fabrics Inc., the employer, insured by Royal and Sun Alliance Insurance. The employer and its insurer accepted liability for the employee=s personal injury, and paid the employee temporary total disability benefits through October 18, 2001. The employee reached maximum medical improvement on September 10, 2001.
On June 11, 1999, the employee sought treatment at the MeritCare Clinic in Bemidji, Minnesota, complaining of right shoulder and neck pain. The initial diagnosis was trapezius strain and Dr. Quamme prescribed physical therapy. An MRI scan of the cervical spine on July 16, 1999, was reported as unremarkable with no significant change compared to a prior study on March 10, 1995. In November 1999, Dr. Skogerboe at MeritCare removed the employee from work pending a functional capacity assessment. On December 3, 1999, Dr. Skogerboe prescribed additional physical therapy at North Country Physical Therapy, two times a week for six weeks.
On December 21, 1999, the employee was evaluated by Dr. Michael D. Smith, an orthopedic surgeon, at the request of the employer and insurer. The doctor obtained a history from the employee, reviewed medical records from MeritCare and North Country and examined the employee. The doctor diagnosed chronic right upper extremity pain of uncertain etiology, limited shoulder range of motion of uncertain etiology, obesity and deconditioning. Dr. Smith found the employee demonstrated shoulder pain with restriction of shoulder and cervical motion but stated the cause for this was unclear. The doctor stated he could not identify any orthopedic injury which would have resulted in such a diffuse level of nonspecific symptoms. Dr. Smith opined the employee=s work activities up through June 3, 1999, were not a substantial contributing cause of her right shoulder problems. The doctor restricted the employee to sedentary to light work, stating this restriction was not due to the employee=s work activities but was based solely on her subjective complaints. Dr. Smith opined the employee had reached maximum medical improvement without permanent partial disability. Finally, Dr. Smith opined the prognosis for the employee=s condition was guarded since he noted the employee had lost shoulder motion despite being off work and felt it unlikely her condition would resolve in the near term.
The employee returned to see Dr. Skogerboe on January 28, 2000, with continued complaints of right shoulder pain. The doctor noted some limitation of motion of the shoulder joint but felt this was mostly due to pain and tightness in the muscles. The doctor referred the employee to Dr. Jed Downs at the Duluth Clinic, whom she saw on February 4, 2000. Dr. Downs diagnosed regional myofascial pain syndrome, in conjunction with mechanical and myofascial restrictions, with a functional thoracic outlet syndrome with brachial plexis irritation and a component of cubital tunnel syndrome on the right. Dr. Downs recommended a splint for the employee=s right hand and maintained the employee=s off work status. In follow-up examinations in March, April, and May 2000, the employee=s condition was essentially unchanged. A cervical MRI scan on June 8, 2000 showed no abnormality. On June 23, 2000, Dr. Downs diagnosed mechanical back pain and thoracic outlet symptom with some brachial plexis neurobraxia.
On September 7, 2000, the employee saw Dr. Edward E. Martinson on referral from Dr. Downs. Dr. Martinson obtained an extensive medical and social history from the employee and conducted a physical examination. The doctor diagnosed neck and upper back pain with paresthesia secondary to work-related incidents. Dr. Martinson recommended continued physical therapy three times a week for six weeks. He reexamined the employee on October 31, 2000. In addition to the employee=s neck and upper back symptoms, the doctor diagnosed a strain-tear of the ulnar collateral ligament and cubital tunnel syndrome exacerbating generalized myofascial pain. Dr. Martinson instructed the employee to remain off work. An MRI scan of the right shoulder ordered by Dr. Martinson showed no significant degenerative change at the AC joint sufficient to cause impingement, and no evidence of a rotator cuff or glenoid labrum tear. An MRI scan of the right elbow showed no abnormalities of the medial collateral or lateral ulnar collateral ligaments. In December 2000, the employee was discharged from physical therapy.
A functional capacity evaluation (FCE) was performed at North Country in January 2001. The evaluation recommended permanent work restrictions. On January 23, 2001, Dr. Martinson released the employee to return to work subject to the restrictions in the FCE, beginning on a four hour a day basis, to increase one hour per week.
Dr. Smith reexamined the employee on August 23, 2001. He obtained an updated history from the employee and reviewed medical records from MeritCare, Dr. Bailey, Dr. Martinson, and the physical therapy records. Following a physical examination, Dr. Smith again diagnosed regional shoulder and right arm pain of uncertain etiology. The doctor stated, however, the employee=s orthopedic examination was objectively normal and his diagnosis was based primarily on the employee=s subjective pain complaints. Dr. Smith stated the employee=s work activities with the employer made no significant contribution to her current disability and opined she sustained no permanent partial disability. Dr. Smith again concluded the employee had reached maximum medical improvement as of the date of his prior examination.
John W. Richardson, a qualified rehabilitation consultant (QRC), had met with the employee on July 2, 1999, to conduct a rehabilitation consultation. Thereafter, Mr. Richardson developed a Rehabilitation Plan with a goal of a return to work with the employer. In January 2000, Dee Koskela became the employee=s QRC. Initially, Ms. Koskela provided medical management. Following the January 2001 FCE, Ms. Koskela administered vocational tests and prepared a Job Placement Plan and Agreement (JPPA) using job placement assistance and a job search to return the employee to work, within the restrictions outlined in the FCE. The employer and insurer accepted and signed the JPPA. In February 2001, Ms. Koskela began forwarding job leads to the employee. Beginning in July and August 2001, QRC Koskela observed the employee was having difficulty pursuing job leads because she had no money, telephone or transportation.
On October 19, 2001, the employer and insurer filed an NOID seeking to discontinue temporary total disability benefits. They asserted the employee had reached maximum medical improvement, that the 104 week limit on temporary total disability benefits would be reached on November 15, 2001, and that the employee was capable of full work duties with no restrictions. The employee objected, and in an Order on Discontinuance issued November 14, 2001, a compensation judge permitted the employer and insurer to discontinue temporary total disability effective October 18, 2001. The employee then served and filed an Objection to Discontinuance, seeking ongoing temporary total disability benefits.
On November 29, 2001, the employer and insurer filed a Rehabilitation Request seeking termination of rehabilitation services on the basis that the employee was capable of full time work with no restrictions, and asserting that the employee had failed to perform a diligent job search and was not cooperating with rehabilitation. The employee again objected. In a decision issued on January 17, 2002, a Commissioner=s representative at the Department of Labor and Industry concluded there was a reasonable basis for termination of the rehabilitation plan. The employee filed a Request for Hearing seeking review of the Commissioner=s decision.
The Objection to Discontinuance and Request for Formal Hearing were consolidated and the case was heard before a Compensation Judge at the Office of Administrative Hearings on April 18, 2002. In a Findings and Order served and filed May 17, 2002, the compensation judge found persuasive and adopted Dr. Smith=s opinion that the employee was able to return to work without restrictions by August 23, 2001. The judge further found the employee did not diligently search for work and had not cooperated with rehabilitation. Accordingly, the compensation judge concluded the employer and insurer properly discontinued temporary total disability benefits from October 18 to November 15, 2001, and properly terminated rehabilitation services. The employee appeals.
1. Waiver and Estoppel
The employee first contends the employer and insurer, by their actions and agreements, waived their right to assert, or should be estopped from asserting the employee had no permanent restrictions secondary to her personal injury as of August 23, 2001. By report dated December 21, 1999, Dr. Smith stated that although the employee had restrictions, these were due to her subjective complaints not her work activities. Despite this opinion, the employer and insurer continued to pay medical expenses, temporary total disability benefits and provided rehabilitation services. Based upon their conduct, the employee contends the respondents have waived or should be estopped from asserting the employee had no permanent work restrictions. We disagree.
The doctrine of equitable estoppel may be invoked to prevent a party from taking unconscionable advantage of its own wrong by asserting its strict legal rights. Northern Petrochemical Co. v. United States Fire Ins. Co., 277 N.W.2d 408 (Minn. 1979). Its application may be appropriate where the party against which estoppel is sought made inducements, whether express or by silence, which were relied upon to the harm of the party seeking the estoppel. Sandnas v. Iron Range Lumber, Inc., 52 W.C.D. 392, 398 (W.C.C.A. 1994). ABefore a court will examine the conduct of the party sought to be estopped, the seeker of the equitable remedy must demonstrate that he suffered some loss through his reasonable reliance on that conduct.@ Ridgewood Development Co. v. State, 294 N.W.2d 288, 292 (Minn. 1980).
The doctrine of equitable estoppel has been applied in various circumstances in workers= compensation cases. See, e.g., Lofgren v. Pieper Farms, 540 N.W.2d 834, 53 W.C.D. 464 (Minn. 1995); Neuberger v. Hennepin County Work House, 340 N.W.2d 330, 36 W.C.D. 348 (Minn. 1983); Kahn v. State, Univ. of Minn., 289 N.W.2d 737, 32 W.C.D. 351 (Minn. 1980). In each of these cases, however, the equitable remedy was applied because the seeker of the remedy demonstrated some loss through a reasonable reliance on the conduct of the party sought to be estopped. In this case, the employee has not demonstrated that she sustained any loss. Rather, the employee received workers= compensation benefits to which she may or may not have been entitled. We fail to see how a receipt of benefits can be considered a loss to the employee. Further, we fail to see how the insurer=s voluntary acceptance of liability and payment of benefits can be construed as a promise or inducement.
The employer and insurer accepted liability for the employee=s 1999 injury and paid medical, wage loss and rehabilitation benefits. Voluntary payment of benefits does not, however, bar the insurer from later changing its position and asserting defenses to any continuing liability for benefits. To hold otherwise would discourage voluntary payment of workers= compensation. See Enger v. General Sec. Servs., mem. op. (W.C.C.A. July 28, 1998); Windsperger v. Viking Automatic Sprinkler, mem. op. (W.C.C.A. February 4, 2000). Accordingly, we conclude the doctrine of equitable estoppel has no application in this case.
2. Work Restrictions - Substantial Evidence
The employee next contends the compensation judge=s decision is unsupported by the preponderance of the evidence. The employee argues the objective findings and expert opinions of Drs. Downs and Martinson, together with the physical therapy records and the treatment notes of the MeritCare Clinic, overwhelmingly support a conclusion that the employee has permanent work restrictions. The employee asserts the compensation judge failed to consider or discuss the medical evidence supporting the employee=s position. For these reasons, the employee asks the discontinuance of benefits and termination of rehabilitation services be reversed.
Based upon the facts in this case, the compensation judge could have reached a different conclusion. On appeal, however, the question is not whether the evidence would support a different result but whether the compensation judge=s findings of fact are clearly erroneous and unsupported by substantial evidence in view of the entire record. Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, the findings are supported by evidence that a reasonable mind might accept as adequate. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). AFindings of fact 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 W.C.D. 196, 229 N.W.2d 521 (1975). In this case, we can not conclude the compensation judge=s findings are clearly erroneous.
Dr. Smith examined the employee on two occasions and concluded she had no work restrictions secondary to her work injuries as of August 23, 2001. The opinions of Dr. Smith support the compensation judge=s determination. While Dr. Downs and Dr. Martinson expressed contrary opinions, it is the function of the compensation judge to resolve disputes in medical expert testimony. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The compensation judge did so by adopting Dr. Smith=s opinions. This court has observed on more than one occasion that a compensation judge is not required to refer or to discuss all of the medical evidence in a case. Rothwell v. Minnesota Dep=t of Natural Resources, slip op. (W.C.C.A. December 6, 1993). In this case, the compensation judge=s decision does reflect the restrictions provided and the diagnoses and opinions offered by the employee=s treating physicians. We see no basis for reversal here.
The employee further contends Dr. Smith failed to review all of the employee=s relevant medical records. She argues Dr. Smith conducted a cursory, selective and slanted review of the employee=s records. Accordingly, the employee argues Dr. Smith=s opinions lack foundation and contends the compensation judge erred in relying upon them. We disagree.
In his medical reports, Dr. Smith stated he reviewed medical records from MeritCare, Dr. Bailey, Dr. Martinson and the physical therapy records. The doctor conducted two physical examinations of the employee, the first on December 21, 1999 and again on August 23, 2001. As a general rule, this level of knowledge establishes adequate foundation to render an expert opinion. See Grunst v. Immanuel-St. Joseph Hosp., 424 N.W.2d 66, 40 W.C.D. 1130 (Minn. 1988). Dr. Smith=s opinion was, therefore, adequately founded and the compensation judge could reasonably rely upon it. Finding the employee was released to return to work without restrictions as of August 23, 2001, the compensation judge properly discontinued temporary total disability from October 18 to November 15, 2001, and permitted termination of the employee=s rehabilitation services. The compensation judge=s Findings and Order are, therefore, affirmed.