CORY A. TRBOYEVICH, Employee, v. POTLATCH CORP., SELF-INSURED, adm=d by COMPCOST, INC., Employer/Appellant, and MINNESOTA DEP=T OF ECONOMIC SEC., and MINNESOTA DEP=T OF LABOR & INDUS., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 12, 2004
MAXIMUM MEDICAL IMPROVEMENT. Substantial evidence supports the compensation judge=s determination that the employee had not reached maximum medical improvement where the employee=s treating doctor was recommending additional treatment approaches to improve the employee=s condition.
TEMPORARY TOTAL DISABILITY - MISCONDUCT. Minn. Stat. ' 176.101, subd. 1(e)(1) which bars the reinstatement of temporary total compensation when the employee has been terminated for misconduct does not apply when temporary total compensation was never paid to the employee.
Determined by: Stofferahn, J., Wilson, J., and Pederson, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: James R. Waldhauser, Minneapolis, MN, for the Appellants. Robert C. Falsani, Falsani Balmer Peterson & Quinn, Duluth, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The employer appeals from the compensation judge=s findings that the employee was not at maximum medical improvement and that the employee was not precluded from receiving temporary total disability benefits by Minn. Stat. ' 176.101, subd. 1 (e) (1). We affirm.
Cory Trboyevich, the employee, began working for the employer, Potlatch, in 1996. He was injured on May 26, 2002, when he struck his head while attempting to pass under a conveyor belt on a production line. The employee testified that he experienced a crunching sensation in his head and down his neck into his back. He had immediate pain and advised his supervisor of the incident. He did not seek any medical treatment for his injury that day. The employee did not work the next two days as those were his scheduled days off.
The employee went back to work on May 29, but left the plant during his work shift to go to the emergency room at Itasca Medical Center. He provided a history there of having run into a steel beam with his head and complained of a mild frontal headache and mild neck pain. He was assessed as having a mild neck strain. The use of ice and Motrin was recommended and he was referred to Grand Rapids Clinic for further treatment if his symptoms continued.
The employee saw Dr. John Fedje-Johnston at the Grand Rapids Clinic on June 4, 2002. The employee advised the doctor that his pain had increased over the last two days and that he had difficulty performing his regular work. The doctor found limited range of motion and acute tenderness to palpation across the posterior neck and into his shoulders. The employee was assessed as having a whiplash-type injury. The employee was placed on Flexeril and Percocet, sent to physical therapy and advised to avoid lifting over 10 pounds. The employee was given work within those restrictions by the employer and he continued working on a full time basis.
The employee saw Dr. Fedje-Johnston again on June 21, noting that physical therapy had improved his range of motion but that he still had pain and chronic headaches. Dr. Fedje-Johnston continued the employee=s medication, physical therapy, and work restrictions. The employee continued to work his light duty assignment with the employer.
The employee=s light duty assignment required him to be at work at 7:00 a.m. On Monday, June 24, the employee did not come into work until some time after a representative of the employer called his home at about 7:30 a.m. The employee claimed his tardiness had been caused by a power failure which had turned off his alarm. The employee met with union and employer representatives the next day to discuss this incident. The employee was under a ALast Chance Agreement@ because of a previous termination and reinstatement and on June 26, 2002, the employee was terminated for his actions on June 24.
The employee continued to treat with Dr. Fedje-Johnston and continued to receive physical therapy, medication and work restrictions. An MRI was done on July 11, 2002, of the cervical spine and was read as showing a Aminimal annulus defect at C5-6. Associated hyperflexion strain injury changes are seen posteriorly.@ In August 2002, Dr. Fedje-Johnston referred the employee to Dr. Matthew Eckman in the physical medicine and rehabilitation department at Duluth Clinic.
In August 2002, the employee began working with a QRC from the Vocational Rehabilitation Unit of the Department of Labor and Industry. A rehabilitation plan was prepared and the employee began a job search under the direction of the QRC. At the hearing, the QRC testified that the employee cooperated with rehabilitation.
The employee first saw Dr. Eckman on October 10, 2002. The employee advised Dr. Eckman that he had pain in his neck, more on the right side than the left side. He also had headaches on an almost daily basis and pain radiating from his neck to the top of his shoulders, right more than left. Dr. Eckman found limitation in range of motion and tenderness on the neck area on exam. Dr. Eckman=s impression was of cervical strain with underlying degenerative disk disease. Dr. Eckman took the employee off work until he could be reevaluated.
The employee was evaluated on behalf of the employer by Dr. Larry Stern on November 15, 2002. Dr. Stern took a history from the employee, reviewed the medical records, and conducted an examination. In his report of November 15, Dr. Stern stated that there were no findings on examination other than some tenderness to palpation in the right trapezius. Dr. Stern concluded that the employee had sustained a cervical strain on May 26, 2002, but that the injury had resolved, that the employee was at maximum medical improvement, and that the employee needed no work restrictions.
Dr. Eckman continued to treat the employee. He provided medication and prescribed physical therapy. After the employee=s follow up appointment on February 11, 2003, Dr. Eckman continued to restrict the employee from all employment. After a follow up appointment on May 15, 2003, Dr. Eckman released the employee to work with restrictions and his chart note of that date recommended avoiding aggravating activities such as bumping, vibration, jarring, overhead items, prolonged driving and static positions. Dr. Eckman changed the employee=s medication and advised the employee to stop physical therapy and concentrate instead on conditioning.
The employee was reevaluated by Dr. Stern on October 10, 2003. Dr. Stern restated his conclusions that the employee=s work injury had resolved, that the employee had reached maximum medical improvement, that the employee had no permanent partial disability from the work injury, and that the employee had no work restrictions. Dr. Stern also stated AAs regards medical treatment, it certainly appears to me that Mr. Trboyevich had not improved in any circumstance under his current treatment regimen. I would recommend that Mr. Trboyevich see an orthopedic or neurological spine specialist, and that consideration be given to a diskogram to see if he has significant objective abnormalities that are not apparent on an MRI scan.@
Dr. Eckman prepared a report of November 19, 2003, in response to a request from the employee=s attorney. Dr. Eckman related the employee=s ongoing cervical problems to the May 26, 2002, work injury. In addressing the question of permanent partial disability, Dr. Eckman stated AI do think it is premature to come to a conclusion as to a permanent partial disability rating as we are still in the process of attempting treatment procedures, particularly radiofrequency median neurotomies in the cervical region by the anesthesiologist in the Miller Dwan pain program. Our attempts to complete that have been delayed by his recurrent scabies infections and he is working with his primary physician in an attempt to relieve that. He will need a follow up as to the outcome of the procedure. If it goes well it will be fine and if not and those types of treatments are exhausted then we will look at repeating his magnetic resonance imaging scan and considering diskograms and whether he would be a candidate for cervical fusion procedures. I do not think it is prudent to rush into that. We are hoping that he will improve some over time and be able to adapt and cope more easily.@
The employee filed a claim petition on August 1, 2002, and the claims were heard by Compensation Judge Gregory Bonovetz on January 16, 2004. Issues at hearing, relevant to this appeal, were whether the employee was entitled to temporary total disability benefits after June 26, 2002, whether the employee had reached maximum medical improvement, and whether the employee was barred from the receipt of temporary total disability benefits pursuant to Minn. Stat. ' 176.101, subd. 1 (e) (1) because he had been terminated for misconduct. In Findings and Order, served and filed February 23, 2004, the compensation judge found that the employee=s termination did not rise to the level of misconduct contemplated by the statute and that the employee had not reached maximum medical improvement. The employee was awarded temporary total compensation. The employer appeals.
Maximum Medical Improvement
The employer argues on appeal that the compensation judge erred in concluding the employee was not at maximum medical improvement. The employer contends that the question of maximum medical improvement is one of Amedical proof@ and that the opinion of Dr. Stern on this issue should have been given Amonumental weight.@ We disagree.
The employer cites to Polski v. Consolidated Freightways, Inc., 39 W.C.D. 740 (W.C.C.A. 1987) as support for its position that the question of maximum medical improvement is one of medical proof. However, in Hammer v. Mark Hagen Plumbing, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989), the court clearly held that the question of maximum medical improvement was not one solely of medical opinion but was a question of fact to be determined by the compensation judge. The question on review is whether substantial evidence supports that determination. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).
In considering this issue, the compensation judge referred to the opinion of Dr. Eckman that the employee required additional and different types of treatment for his injury and also referenced Dr. Stern=s statement that a referral of the employee to an orthopedist or neurologist would be appropriate. The need of the employee for additional treatment may be considered in determining whether or not maximum medical improvement has been reached. Young v. Fairview-University Medical Center, WC 04-108 (W.C.C.A. July 28, 2004). We conclude that substantial evidence on the record exists to support the compensation judge=s decision on this issue.
At the hearing, the employer took the position that the employee was barred by Minn. Stat. ' 176.101, subd. 1 (e) (1) from the receipt of temporary total compensation because he had been terminated for misconduct. The employee argued that his behavior did not constitute misconduct since his tardiness on June 24, 2002, was the result of a power outage. The compensation judge agreed with the employee and awarded benefits. The employer appeals.
We conclude that it is not necessary to evaluate the employee=s actions to decide this issue. Minn. Stat. ' 176.101, subd. 1 (e) (1) does not apply in this case. As we have noted previously, the statute applies only to Arecommencement@ of temporary total compensation. Sattler v. Pipestone County Medical Center, slip op. (W.C.C.A., March 18, 2003). In this case, temporary total compensation was never paid to the employee and therefore, could not be Arecommenced@.
In its brief, the employer cites a number of cases dealing with misconduct which predate the addition of Minn. Stat. ' 176.101, subd. 1 (e) (1) to the statute. While those cases do not appear to have been argued to the compensation judge, we would note that even when an employee has been terminated for misconduct, the employee=s entitlement to benefits is not forfeited but is only suspended until the employee demonstrates by diligent job search that the injury and not the misconduct is the cause of any wage loss. Marsolek v. George A. Hormel & Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989). Here, the employee conducted a job search at the direction of his QRC and there is no argument that the employee failed to cooperate with rehabilitation services. The employee=s job search obligation having been met, the question of whether or not his actions were Amisconduct@ is irrelevant.
The compensation judge=s refusal to bar the receipt of temporary total compensation for misconduct is affirmed.
 In its brief, the employer cites Dr. Stern=s board certification and experience as factors which should have been considered in weighing his opinion. Those qualifications are not in evidence. If medical qualifications are important for a compensation judge to consider, those qualifications should be made part of the record.