MIRIAM CARMINE, Employee/Appellant, v. ROTELCOM/GLOBAL CROSSING and KEMPER INS. CO., Employer-Insurer, and ROTELCOM/GLOBAL CROSSING and ACE USA/ESIS, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JULY 29, 2004
PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where the second insurer, on the risk at the time of the alleged 2000 injury, had denied primary liability on the date of the hearing, where the parties were not prepared to--and did not--litigate the primary liability of that second insurer, where the first insurer had admitted liability for a 1993 injury, and where the judge had properly refrained from making a determination as to the second insurer=s primary liability, it was neither improper nor unreasonable for the compensation judge to conclude that the current medical expenses that were solely at issue at the hearing were not causally related to the employee=s 1993 injury.
Determined by Pederson, J., Johnson, C.J., and Stofferahn, J.
Compensation Judge: Gary P. Mesna
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Appellant. James S. Pikala and Jennifer M. Spalding, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Cross-Appellants. Kathy A. Endres and Susan M. Stepaniak, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Respondents.
WILLIAM R. PEDERSON, Judge
The appellant employee and the cross-appellant employer with insurer ACE USA appeal from the compensation judge's finding that the employee=s first injury was not causally related to the employee=s current need for the treatment at issue. The employee also appeals from the judge=s failure to award the benefit at issue, which was determined by the judge to be a reasonable and necessary medical expense. We affirm.
On March 8, 1993, Miriam Carmine sustained a Gillette-type injury to her right hand and wrist in the nature of carpal tunnel syndrome as a consequence of doing keyboarding work in the course of her employment with Rotelcom/Global Crossing. Ms. Carmine [the employee] was thirty-four years old at the time and was earning a weekly wage of $399.60. Rotelcom/Global Crossing [the employer] and its insurer on that date, Kemper Insurance Company [jointly with the employer, Kemper], acknowledged liability for the injury and commenced payment of benefits. Following her injury, the employee treated, at the employer=s suggestion, with orthopedist Dr. James Schaffhausen, and eventually, on December 1, 1993, she underwent right carpal tunnel release surgery to relieve her injury. She was subsequently off work for about a month and eventually received temporary total disability benefits and impairment compensation for permanent partial disability to .5% of her whole body. The employee returned to her pre-injury job, having been paid by February 4, 1994, a total of $1,600.44 in workers= compensation benefits.
The employee worked at her job for over a year without further treatment, having experienced what Dr. Schaffhausen described on March 10, 1995, as Aan excellent result@ from her surgery. On that same date, however, the employee returned to Dr. Schaffhausen with complaints of shooting pains in both of her forearms and elbows, more on the right than on the left. With apparent reference to the employee=s right arm, Dr. Schaffhausen diagnosed A[o]veruse injury, dorsal extensor muscle mass@ with A[p]ossible posterior interosseous nerve entrapment,@ and he prescribed Aicing this area and using a wrist splint at work,@ noting that, A[i]f [this] does not help her, I would like her to return for follow up.@ On a health care provider report also completed on that date, Dr. Schaffhausen indicated that the employee had reached maximum medical improvement [MMI] from her March 1993 work injury.
On January 3, 1997, the employee received one treatment for bilateral wrist pain from chiropractor Dr. Robert Lubovich, with whom she had been treating since March of 1994 for neck, shoulder, and headache symptoms apparently consequent to two motor vehicle accidents. On January 13, 1997, she was examined also, evidently at the recommendation of the employer and interim insurer Liberty Mutual, by orthopedist Dr. David Boxall, who diagnosed bilateral carpal tunnel syndrome and recommended continued use of wrist braces and one session of physical therapy Ato learn some home exercises.@
About three years later, on February 15, 2000, the employee reported to the employer a Gillette-type work injury to both of her wrists on that same date, on which date ACE USA/ESIS [jointly with the employer, ACE] was on the risk for the employer=s workers= compensation liability. Five days later, on February 20, 2000, the employee fell on her left wrist while shopping, and she went the following day to have the wrist examined at Park Nicollet Clinic, where the attending physician diagnosed a wrist strain, issued the employee a wrist splint, and instructed her in symptomatic therapy. On February 23, 2000, a first report of injury was completed  with regard to the claimed February 15, 2000 work injury, attached to which report was a statement that A[t]he employee has had su[r]gery on her right wrist in Dec. of 1993 because of the Carpal Tunnel.@ The employer apparently recommended that the employee return to see Dr. Boxall for the injury, whom the employee saw again on February 25, 2000, for the first time since January 1997. Dr. Boxall diagnosed work-related bilateral carpal tunnel syndrome and nonwork-related left wrist sprain and ordered an EMG. On March 3, 2000, ACE accepted liability for a February 15, 2000, work injury. As of that date, the employee continued to work full time and had lost no time from work due to the injury. The EMG ordered by Dr. Boxall was conducted on March 9, 2000, by neurologist Dr. Thomas McPartlin, who interpreted it to be normal, and on March 24, 2000, Dr. Boxall confirmed to the employee that it was negative bilaterally.
The employee=s complaints apparently continued, and on September 15, 2000, she filed a medical request, seeking a change of treating doctors from Dr. Boxall to Dr. Lubovich, on grounds that she had been under Dr. Boxall=s care for six months and had not seen any significant improvement in her condition, whereas she had already seen some promising improvements in some treatments with Dr. Lubovich. The parties subsequently agreed that, while Dr. Boxall would remain the employee=s treating physician, the employee would be allowed to treat with Dr. Lubovich in accordance with provisions of the treatment parameters. On January 8, 2001, the employee commenced treatments for her bilateral hand and wrist condition with Dr. Lubovich, who in turn referred the employee for a consultation with orthopedic surgeon Dr. Robert Hartman, an associate of Dr. Schaffhausen=s. Although ACE apparently granted the employee=s request for it, the consultation evidently never occurred.
On September 17, 2001, the employee was examined at the request of ACE by hand specialist Dr. William Call, who found no evidence of carpal tunnel syndrome but instead diagnosed Asubjective muscle discomforts associated with keying--muscle tension/arthralgia/myalgias.@ Dr. Call could think of no treatment to offer the employee and saw no need for any restrictions, but he referred the employee to occupational medicine specialist Dr. Constance Pries for a second opinion. When she saw the employee on October 25, 2001, Dr. Pries assessed chronic and longstanding bilateral upper extremity discomfort, transiently improved with passive modalities. She recommended that the employee rotate her job tasks, take breaks and do stretches as possible, and avoid vibrating tools. Dr. Pries placed no other limitations on the employee=s work status, and the employee continued to work full time at her pre-injury position.
Sometime thereafter, Dr. Lubovich evidently referred the employee to the Noran Neurological Clinic for a consultation with Dr. Ronald Tarrel. The consultation was apparently denied by ACE, and on May 12, 2003, the employee filed a medical request for the consultation. In a medical response filed May 23, 2003, ACE again denied the request, alleging (1) that the employee was not entitled to the consultation, (2) that the February 15, 2000, injury was only a Atemporary aggravation@ of the March 8, 1993, and (3) that ongoing medical treatment was the responsibility of a new workers= compensation insurer. On June 11, 2003, Kemper also denied the request, on grounds that A[t]here was absolutely no medical support attached to the Medical Request indicating that the [employee] needed additional medical care or treatment or that the care or treatment was causally related to the March 8, 1993 injury.@ An administrative conference was held on August 26, 2003, and a decision was issued the following day, denying the referral to Dr. Tarrel. On September 4, 2003, the employee filed a request for formal hearing. On October 7, 2003, Dr. Lubovich wrote to the employee=s attorney, stating that he believed that the employee Awould still benefit from an evaluation by Dr. Tarrell for a second opinion.@
On December 8, 2003, at the request of the employer and ACE, the employee underwent an independent medical examination with upper extremity specialist Dr. Jeffrey Husband. In his report dated December 10, 2003, Dr. Husband found no evidence of carpal tunnel syndrome and rendered an opinion that the employee=s subjective symptoms were not causally related to her work activities, specifically that she had not sustained a separate or unique work-related Gillette-type injury to her upper extremities culminating on or about February 15, 2000. He concluded also that she had reached MMI in May of 2002, that she had no related permanent partial disability, that she required no further chiropractic treatment or an evaluation by Dr. Tarrell, and that she required no related physical restrictions.
The matter came on for hearing on December 16, 2003. At the hearing, Kemper acknowledged liability for the employee=s right carpal tunnel injury in March 1993 and ACE acknowledged that it had originally admitted liability for the employee=s February 2000 work injury. ACE went on, however, to deny primary liability for an injury on the latter date, based on the report of Dr. Husband, which had been filed the day before the hearing. At that point, the following exchange occurred:
MR. PIKALA [for ACE]: It was admitted, your Honor. No IME until last week and the independent medical examiner, Dr. Jeffrey Husband, has concluded that [the employee] did not sustain a separate or work related Gillette injury to her upper extremities culminating on or about February 15, 2000. So we are now denying liability, or any benefit paid, but it=s our position that any benefit paid is a mis[tak]e of fact.
THE COURT: Is that right carpal tunnel syndrome as well, then?
MR. PIKALA: That was a claimed bilateral.
THE COURT: Bilateral?
MR. PIKALA: Correct.
THE COURT: Okay. Then what issues do we have? I mean, it looks like we=ve got then the question of whether you had a work related B are we dealing with that primary liability issue today?
MR. VAIL [for the employee]: No.
THE COURT: And is there any issue regarding who was responsible should there be B obviously, we[>ve] got an issue of whether the referral or the consultation with Dr. Tar[r]el is necessary or reasonable. I=m assuming that=s an issue?
MS. ENDRES [for Kemper]: That=s correct.
MR. PIKALA: That=s correct.
THE COURT: And then is there also [a]n issue, if the Court determines that that is appropriate to have that consultation, is there an issue then as to who=s responsible for that?
MR. PIKALA: Sure.
THE COURT: The payment of that bill?
MS. ENDRES: Yes.
THE COURT: Are there other issues., as well, that we=re going to deal with today?
MR. VAIL: I don=t believe so.
Testimony offered at hearing, which was by the employee and Dr. Lubovich, was devoted primarily to tracing the history of the employee=s hand/wrist-related medical condition, the facts of which are materially undisputed here on appeal. Early in the direct examination of the employee, the following exchange occurred:
Q: Did you have dealings with Mr. Olin, the safety administrator for the employer, in 1993 regarding your problems with your wrists?
A: Yes, I did.
THE COURT: How is this all relating to whether she needs a consultation with this osteopath in 2003?
MR. VAIL: I=m sorry Judge?
THE COURT: How is this all related to whether she needs a consultation with Dr. Tar[r]el in 2003?
MR. VAIL: Well B
THE COURT: That=s ten years ago.
MR. VAIL: Yeah. I think that the defense was that she did not have carpal tunnel and that it wasn=t related to her work activities, so I=m spending some time talking about her work activity.
THE COURT: I thought you told me that we weren=t going to deal with the primary liability issue of whether it=s carpal tunnel or anything else. We had B in your opinion[ B ] admitted injuries, but now Mr. Pikala is denying them based on a medical report that he just got, and I understand those issues. But it doesn=t seem like I=m going to be making determinations regarding, you know, whether she had . . . these injuries. She had an injury in 1993 that=s been admitted.
MR. VAIL: Should I skip ahead?
THE COURT: Well, I guess I=m wondering why we=re going over all of this. It doesn=t seem to have anything to do with the issues you asked me at the beginning of the trial to determine today.
MR. VAIL: Okay. Thanks, Judge.
At that point, testimony resumed, tracing the history of the employee=s hand/wrist-related medical condition.
In his findings and order filed January 12, 2004, the compensation judge identified the issues before him as follows: (1) A[a]pproval of consultation with Dr. Tarrel@; (2) A[w]hether the requested consultation would be reasonable and necessary@; and (3) A[i]f the consultation is appropriate, which insurer is liable for payment.@ The judge ultimately concluded in part that the requested consultation with Dr. Tarrel was reasonable Ato better define the employee=s condition and determine whether there are any viable treatment options.@ Nevertheless, notwithstanding that conclusion, the judge denied the employee=s claim for benefits pending a determination of primary liability, concluding that the employee had not proven that her current condition was causally related to her 1993 work injury and noting that ACE, although it had originally accepted liability for an injury on February 15, 2000, had now denied primary liability for such an injury, and primary liability was expressly not at issue before him. The employee appeals on grounds that the judge erred (1) Aby deciding an issue that was not before the court,@A[h]aving agreed not to litigate primary liability,@ and (2) Aby allowing [ACE] . . . to raise [their denial of liability] at the last minute.@ ACE cross appeals, on grounds that the judge erred (1) Awhen he made findings relative to liability . . . at the hearing on a Medical Request@ and (2) Awhen he went forward with the hearing and made a determination on medical benefits when there was a dispute regarding liability.@
At Finding 7 of his findings and order, the compensation judge concluded that A[t]he employee has not met her burden of proving that her current upper extremity condition, if any, is causally related to the 1993 work injury.@ In his memorandum, the compensation judge presented in some detail the evidence on which he had drawn that conclusion, which had relieved Kemper of any liability for the benefit at issue. The judge then went on to state,
Of course, the court is making no determination that a Gillette injury occurred in 2000 because primary liability has been denied and employee=s counsel requested that the court not address primary liability in this expedited proceeding. However, because the court has determined that there is no liability on the 1993 insurer, and the court cannot determine whether liability rests with the 2000 insurer, the court cannot order either insurer to pay for the consultation with Dr. Tarrel.
Both the appellant employee and cross-appellant ACE contend that the compensation judge committed an error of law by Aexpanding the issues@ to be addressed when he made findings releasing Kemper from all liability in this expedited proceeding that was to be limited to the single medical issue of the employee=s entitlement to a consultation with Dr. Tarrel. The employee argues that, since there is evidence that the employee is currently subject to purportedly work-related symptoms, since the employer and both insurers had each admitted primary liability for a work injury right up to the date of trial, since primary liability was expressly not at issue, and since the judge had found the requested consultation to be reasonable and necessary, the compensation judge should either not have dismissed Kemper or should at least have awarded payment for the consultation by ACE. Noting that the hearing below was a formal hearing proceeding on appeal from an administrative decision pursuant to Minn. Stat. ' 176.106, which provides at subdivision 8 that A[t]he commissioner does not have authority to make determinations relating to medical or rehabilitation benefits when there is a genuine dispute over whether the injury initially arose out of and in the course of employment . . . ,@ ACE argues that Athe compensation judge should have declined to go forward on the Medical Request@ as soon as primary liability had been contested by ACE and the employee=s attorney had expressly declined to accept primary liability be an issue for determination. We are not persuaded.
We would note first that the formal hearing below was not an administrative conference pursuant to Minn. Stat. ' 176.106, and the provisions of that statute do not govern the formal hearing=s procedures. That said, the employee=s ANo@ at hearing in reply to whether the judge should address primary liability becomes, in a sense, merely an assertion of what remains also her position here on appeal--that the only issue before the judge was the reasonableness and necessity of the consultation at issue and that either one or the other of the insurers should have been ordered to pay for the consultation that the judge found to be reasonable and necessary. What neither appellant party has addressed, however, is the fact that the compensation judge has not made, contrary to the agreement of the parties at hearing, any finding regarding primary liability here. Instead, the judge has found only that Kemper is not liable for the treatment currently at issue because the employee did not establish that her Acurrent upper extremity condition, if any, is causally related to the 1993 work injury.@ At issue during this litigation was not the primary liability of Kemper for the employee=s condition but only the reasonableness and necessity of and causal relationship between the need for the consultation at issue and the original injury for which the employer and Kemper had already admitted liability. Kemper disputed not only the reasonableness and necessity of the requested consultation but also its causal relationship to the 1993 injury. Accordingly, we see no basis to conclude that the judge expanded the issues beyond those presented by the parties.
The employee also contends that the compensation judge erred when he allowed ACE to raise the issue of primary liability on the day of trial and when he failed to award medical treatment that he found to be reasonable and necessary. Under the circumstances of this case, we cannot conclude that the judge=s decision to defer the issue of ACE=s liability and to resolve the contested issues of fact as to Kemper constituted an abuse of discretion.
The compensation judge in this case was confronted with the dilemma of how to proceed in the face of the recent denial of primary liability by ACE. Counsel for the employee quite reasonably objected to litigating the issue of primary liability for the February 15, 2000, injury. However, after making it clear that primary liability was not at issue before the judge, the record contains no further discussion regarding the impact of ACE=s denial and the judge=s authority to find liability for the proposed medical consultation against ACE. No one requested a continuance of the hearing, and the judge reasonably concluded that he could not determine whether liability rests with the 2000 insurer.
Pursuant to Minn. Stat. ' 176.411, A[e]xcept as otherwise provided by [the statute], when a compensation judge makes an investigation or conducts a hearing, the compensation judge is bound neither by the common law or statutory rules of evidence nor by technical rules of pleading or procedure.@ Minn. Stat. ' 176.411, subd. 1; see also Minn. R. 1415.2900, subp. 6. It is up to the judge to conduct the hearing in a manner designed to ascertain the substantial rights of the parties. We do not intend to suggest that an employee must address the issue of primary liability without an opportunity to be heard, nor did the compensation judge make such a requirement. While it may have been better for the judge to have continued the entire case instead of trying the issues in a bifurcated manner, such procedural decisions are generally within the sound discretion of the compensation judge. The parties were not prepared to--and did not--litigate the primary liability of ACE, and the judge properly refrained from making a determination as to that issue. It was neither improper nor unreasonable for the compensation judge to bifurcate the issues in the manner that he did, preserving as much of the purpose of the hearing as he could, and no prejudice has resulted from his doing so. We are sympathetic to the delay imposed upon the employee in this case, but we cannot conclude that the judge=s handling of the case constituted an abuse of discretion. Therefore we affirm.
 In their notice of appeal, the employer and insurer ACE USA specify Findings 2, 4, 6, and 8 as those from which they are appealing, although Findings 2, 4, and, in particular, 7 are those pertaining to the first insurer=s potential liability for the consultation at issue. However, because they have clearly summarized that liability issue in paragraph (1) of their notice, we accept jurisdiction.
 See Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The report was filed on February 28, 2000.
 ACE has also appealed nominally from the judge=s findings (a) that the employee had a good result after her 1993 surgery, with few complaints for a year or two thereafter, (b) that the employee=s symptoms increase with work-related keyboarding activity, and (c) that the requested consultation is reasonable treatment. However, it has not addressed those issues in its brief, and therefore we will not address them. See Minn. R. 9800.0900, subp. 1 (AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@) See also Anderson v. Stremel Bros., 47 W.C.D. 99 (W.C.C.A. 1992).
 See Kulenkamp v. Timesavers, Inc., 420 N.W.2d. 891, 40 W.C.D. 869 (Minn. 1988) (basic fairness requires reasonable notice and opportunity to be heard on issues bearing on benefit entitlement).