LYNETTE DOTTERWEICH, Employee/Appellant, v. CPAK, INC., and FEDERATED MUT. GROUP, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 23, 2003
PRACTICE & PROCEDURE - ADMISSION OF EVIDENCE. Where surveillance videos were disclosed at a medical deposition prior to hearing, the videos were properly admitted evidence even though they had not been disclosed in the Petition to Discontinue or at pre-trial.
EVIDENCE - RES JUDICATA. Acceptance of the opinion of the independent medical examiner as expressed in his second report was not precluded by the doctrine of res judicata and provides substantial evidence supporting the decision of the compensation judge.
Determined by Stofferahn, J., Rykken, J., and Wilson, J.
Compensation Judge: Nancy Olson
Attorneys: Robert T. Brabbit, Brabbit & Salita, Minneapolis, MN, for the Appellant. Mark J. Freeman, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from discontinuance of temporary total disability benefits. We affirm.
The employee, Lynette Dotterweich, worked for the employer, CPAK, Inc., as a label technician. On August 13, 2001, she was taking hair styling sticks from a production line and placing them in a box. She then placed each full 20-pound box on a pallet. While performing this activity, the employee noted the onset of low back pain. The employer and its insurer, Federated Mutual Group, denied liability for any August 13, 2001 personal injury.
After her back pain developed at work, the employee consulted with Dr. James Anderson at Minnesota Occupational Health on August 17, 2001. She gave him a history of back pain which she attributed to regular lifting and twisting with boxes. Her primary complaint was of sharp pain in the right low back which radiated into the right lateral thigh area. Dr. Anderson took her off work, provided Vioxx, and recommended ice and heat applications to the back. When she returned on August 20 for a recheck, the employee noted continued symptoms with some improvement. She advised Dr. Anderson that she thought she could work with restrictions. She was released with a lifting limit of 20 pounds and restrictions on stooping.
The employee continued to treat with Dr. Anderson on a regular basis into November 2001. During that time she noted aggravation of her symptoms with work activity and improvement of her symptoms with physical therapy until physical therapy was stopped because of the denial of workers= compensation. Dr. Anderson continued work restrictions and Tylenol. The record is not clear as to the employee=s work situation during this time although it appears that she worked most of this period. On November 27, Dr. Anderson recommended an MRI but the procedure was not approved by the insurer.
The employee was evaluated by Dr. Mark Engasser on behalf of the employer and insurer on January 7, 2002. Dr. Engasser found no objective signs on examination and concluded that the employee had sustained a temporary injury to her low back in the nature of myoligamentous pain, lumbosacral spine. He stated that the injury had lasted one month and that the employee did not require additional medical treatment.
The employee had filed a claim petition for workers= compensation benefits and the claim came before a compensation judge on May 30, 2002. In his Findings and Order, the compensation judge found that the employee sustained a personal injury to her lumbar back, her left hip and her left leg on August 13, 2001 and awarded temporary total disability benefits and temporary partial disability benefits on an intermittent basis from the date of injury to the date of hearing. This decision was not appealed.
The employee had an MRI of the lumbar spine on June 28, 2002 at the request of Dr. Anderson. The impression was of Adegeneration of the L5-S1 disc, with associated mild broad based disc bulge and mild disc space narrowing.@ After the MRI, Dr. Anderson referred the employee to Dr. John Dowdle.
Dr. Dowdle first saw the employee on August 8, 2002. He found tenderness to palpation over the left sacroiliac joint, hesitant motion in flexion/extension of the lumbar spine and an antalgic gait on the left. Dr. Dowdle diagnosed left sacoiliac joint inflammation and recommended an injection in that joint. After the injection, Dr. Dowdle saw her again on September 17 and diagnosed mechanical back pain with degenerative disc, L5-S1. He recommended a back support and pain medication. A week later he referred her to Physicians Neck and Back Clinic for an exercise program and also provided her with work restrictions.
Following Dr. Dowdle=s restrictions, the employee returned to work on September 26, 2002. The employer and insurer filed a notice of intention to discontinue compensation benefits predicated on the return to work and the employee requested an administrative conference. In an Order of December 2, 2002, the discontinuance was disallowed since the employee had been unable to continue working after one day.
During the pendency of the discontinuance conference the employee continued to treat with Dr. Dowdle. On November 6, 2002, Dr. Dowdle recommended a discogram and also referred her to Dr. John Cronin for a chronic pain assessment. The discogram was done on November 7, 2002. It showed Aabnormal disc morphology with strongly concordant reproduction of symptoms at L5-S1.@
Dr. Dowdle released the employee to return to work with restrictions on November 20, 2002, and the employee again returned to work with CPAK. The employer filed another notice of intention to discontinue compensation benefits, and the employee again requested an administrative conference. The result of this administrative conference was another denial of the discontinuance, again on the basis that the employee had not been able to work more than one day.
The employee saw Dr. John Cronin, a psychologist and director of Primary Behavioral Health Clinics, Inc., for a chronic pain evaluation on December 10, 2002. Dr. Cronin concluded that the employee had chronic pain which required treatment. He recommended a short-term chronic pain management program, including individual counseling, clinical feedback, and psychiatric consultation for medication to deal with her anxiety. This treatment recommendation was disallowed by the workers= compensation insurer. The employee received no chronic pain treatment.
In his December 5, 2002 chart note, Dr. Dowdle stated that he believed the employee was a candidate for fusion surgery at the L5-S1 level. He referred her to Dr. Paul Hartleben for a second opinion. Dr. Dowdle also filled out a work and activity release form stating that the employee would be unable to work for an undetermined period from December 5, 2002. Dr. Hartleben concluded that it was premature to consider a spinal fusion because the Aphysical findings are atypical for discogenic back pain and rather point to a concurrent additional diagnosis of hip pathology.@ Dr. Hartleben was also concerned with the employee=s smoking and various Anon-organic@ features of her examination.
The employee was evaluated again by Dr. Engasser on December 17, 2002. In his report he offered the opinion that Athis patient did sustain a temporary myoligamentous strain to her low back as a result of the work incident at CPak on August 13, 2001. What was initially a mild strain has been expanded to include disabling pain in her low back which I feel is non-organic in nature. The reasons for her non-organic pain are multi-factoral. These may include an underlying psychogenic problem as well as issues of secondary gain.@
On January 23, 2003, the employer and insurer filed a petition to discontinue workers= compensation benefits. The petition alleged, among other claims, A The employee is physically capable of performing more activity than she has indicated to her doctors, her employer and her QRC.@ There were no attachments to the petition. On January 30, 2003, the office of administrative hearings issued an order setting this matter for an expedited hearing to take place on February 25, 2003.
The hearing did not take place on that date. While there is no record, the parties agree that the attorney for the employer indicated that he wished to take the deposition of Dr. Dowdle. It was agreed that the hearing would be rescheduled and the case was pretried by the compensation judge assigned to the case, a compensation judge who had not heard the case in May 2002.
The deposition of Dr. Dowdle was taken on March 20, 2003. At the deposition, the employer and insurer disclosed surveillance videos which had been taken of the employee in October 2002 and on February 25, 2003 as the employee had left the Office of Administrative Hearings. Dr. Dowdle was shown the videos and asked his opinion concerning the employee=s ability to work in light of the videos. Dr. Dowdle stated that from a physical standpoint he believed the employee could be employed on a sedentary basis. However, he did not believe the videos were inconsistent with the employee=s stated capabilities, and he continued in the opinion that there was a chronic pain component to the employee=s injuries which needed to be addressed. Dr. Dowdle indicated that he was not able to proceed with his treatment until the employee=s pain syndrome had been treated.
The employer and insurer=s petition to discontinue was heard by a compensation judge on March 26, 2003. At the hearing, the employee immediately contested the admissibility of the surveillance videos, arguing the videos were inadmissible since they had not been disclosed at the time the case was pre-tried. The employer and insurer argued that the surveillance videos were admissible as rebuttal evidence. While the compensation judge stated that the videos should have been disclosed earlier, she allowed the videos into evidence.
In her Findings and Order, served and filed May 2, 2003, the compensation judge concluded on the basis of the surveillance video that the employee was not a credible witness. On the same basis, the compensation judge rejected the opinions of Dr. Dowdle and Dr. Cronin that the employee suffered from a chronic pain syndrome. The judge found that the employee had recovered from her work injury so as to be capable of working without restrictions. Accordingly, the judge allowed discontinuance of temporary total disability compensation. The employee appeals.
1. Admissibility of Surveillance Video
The employee argues on appeal that the compensation judge erred in admitting the surveillance videos into evidence because the videos were not disclosed at the pre-trial. The employee cites as her authority Minn. R. 1415.1900, subp. 7, which provides that evidence not disclosed at the pre-trial may not be presented at the hearing.
We note, however, that Minn. R. 1415.1900, subp. 7C, provides that evidence not disclosed at the pre-trial may nonetheless be presented at the hearing if it is shown to the compensation judge that Athe other parties have been advised of the evidence or other matters before the hearing and have had an opportunity to review them.@ The surveillance videos were shown at Dr. Dowdle=s deposition and were reviewed by the employee=s attorney at that time. The compensation judge thus had discretion in this case to allow the evidence and her receipt of this evidence is, therefore, not clearly erroneous.
2. Temporary Injury
The employee also appeals the determination of the compensation judge that the employee sustained a temporary injury which had resolved by the date of hearing and that, as a result, the employee=s temporary total disability benefits could be discontinued. While recognizing the right of the compensation judge to choose between competing medical opinions, the employee argues that in adopting the opinion of Dr. Engasser and in denying the employee=s entitlement to ongoing benefits, the compensation judge failed to apply the principle of res judicata and ignored objective medical evidence.
The res judicata issue to which the employee refers comes from the 2002 Findings and Order. The compensation judge at that time found the effects of the employee=s work injury to be continuing as of the date of hearing. In so doing, the compensation judge rejected the opinion of the independent medical examiner Dr. Engasser, as reflected in his report of January 7, 2002, that the employee=s work injury was a temporary injury which had totally resolved within one month. In the 2003 decision from which appeal has been taken, the compensation judge accepted Dr. Engasser=s opinion, set out in a December 17, 2002 report, that the employee=s injury was a temporary injury which had totally resolved.
While the doctrine of res judicata applies in workers= compensation cases, it does not preclude litigation of issues which were not specifically decided in the prior hearing. Fischer v. Saga Corp., 498 N.W.2d 449, 48 W.C.D. 368 (Minn. 1993). A finding that the employee=s work injury had not resolved by the date of a prior hearing in 2002 did not preclude a finding a year later in 2003 that the work injury had now resolved. While Dr. Engasser=s conclusions did not change from his first report to his second report, that second report was a result of another evaluation and the review of additional records. The compensation judge in 2003 could reasonably accept Dr. Engasser=s opinion as set forth in his second report and her decision based on that opinion was not precluded by principles of res judicata.
The employee also argues that the compensation judge erred in ignoring unopposed objective medical evidence in accepting the opinion of Dr. Engasser. The employee points out that an MRI scan and a discogram both indicated permanent changes consisting of a degenerative disc at L5-S1. The employee contends that Dr. Engasser=s opinion is inconsistent with those findings.
The evidence to which the employee refers, as well as other relevant evidence, was provided to Dr. Engasser before he wrote his second report. Dr. Engasser=s opinion had sufficient foundational basis to be considered, and his conclusion that the findings did not change his opinion was an adequate basis for the compensation judge=s decision.
The issue in this case was whether the employee was precluded from returning to work by reason of her back injury. Our inquiry is whether the decision of the compensation judge on this issue is supported by substantial evidence. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). Since we find such evidence in the record, we affirm.