AARON D. TRAYNOR, Employee/Appellant, v. CITIZEN=S COMMUNICATIONS, and CNA/TRANSCONTINENTAL INS. CO., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 4, 2005
APPEALS - SCOPE OF REVIEW; MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE. Where, on appeal, the employee suggested that the issue before the compensation judge at the discontinuance hearing had been whether or not the employer and insurer had paid benefits under a mistake of fact, whereas the parties had expressly agreed at hearing that the issue was whether the insurer was entitled to discontinue benefits based on the employee=s having reached maximum medical improvement, and where it was reasonable to conclude that the employee had reached maximum medical improvement under terms of the statute well prior to the date of the hearing, the compensation judge=s decision permitting discontinuance of benefits was not clearly erroneous and unsupported by substantial evidence.
Determined by: Pederson, J., Rykken, J. and Johnson, C.J.
Compensation Judge: Gary M. Hall
Attorneys: George H. Smith, Trawick & Smith, Minneapolis, MN, for the Appellant. Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for the Respondent.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge=s order allowing the employer and insurer to discontinue payment of temporary total disability benefits. We affirm.
On November 5, 2002, Aaron D. Traynor, while working as a central office technician for Citizen=s Communications, accidently poked himself in the right eye with a needle-nosed pliers. Mr. Traynor [the employee] was taken immediately to an emergency room and was referred to ophthalmologist Dr. Timothy Ehlen. Dr. Ehlen diagnosed corneal scarring secondary to the trauma and recommended corneal transplant surgery, which the employee did not then agree to. On January 10, 2003, Dr. Ehlen completed a Health Care Provider Report, in which he opined that the employee had reached maximum medical improvement [MMI] from his work injury unless he elected to undergo the surgery that had been proposed and offered. On January 14, 2003, the insurer served the employee with a notice of MMI and Dr. Ehlen=s report.
On March 18, 2003, the employee was referred for an evaluation by ophthalmologist Dr. Neal Sher. In a report to the employee=s attorney dated July 9, 2003, Dr. Sher also recommended a corneal transplant in the right eye, even while noting some of the potential complications involved with such a surgery. The employee again declined to proceed with the surgery. On September 9, 2003, the employee returned again to see Dr. Sher. In his report dated September 12, 2003, Dr. Sher noted that his opinion had not changed since March - - that is, that the changes in the employee=s right cornea were permanent and that the only treatment would be a corneal transplant. Dr. Sher also stated that the employee had reached MMI Aunless [he] undergoes corneal transplantation.@
The employee continued to experience symptoms related to his eye injury, and he apparently also had difficulties with certain tasks related to his job as a central office technician. The employee sent an e-mail to his supervisor regarding the difficulties that he was having, and by March 9, 2004, he was no longer working, on which date the insurer commenced payment of temporary total disability benefits.
On May 4, 2004, the employee was examined for the employer and insurer by neuro-ophthalmologist Dr. Alan Weingarden. In his report of May 10, 2004, Dr. Weingarden concurred with Dr. Sher=s recommendation for corneal transplant surgery, similarly finding the employee to have reached MMI if he chose not to have surgical treatment.
On June 1, 2004, the insurer filed a Notice of Intention to Discontinue [NOID] benefits, alleging in part that the employee=s benefits should cease because he was more than ninety days post service of MMI. On June 28, 2004, an Order on Discontinuance was issued, granting the requested discontinuance of temporary total disability benefits, and the employee filed an Objection to Discontinuance on July 26, 2004.
The matter came on for a hearing before a compensation judge on October 19, 2004. At the hearing, counsel agreed that the issue for determination by the judge was Awhether the insurer may discontinue temporary total disability benefits based on maximum medical improvement.@ The employee testified at hearing that, following a recent appointment with Dr. Sher on September 20, 2004, he had decided to go forward with the recommended corneal transplant surgery. However, with respect to the insurer=s proposed discontinuance, the judge found, in his Findings and Order filed October 20, 2004, that the employee had reached MMI by January 10, 2003, and that service was effected on January 14, 2003. Pursuant to that finding, the judge concluded that, A[g]iven the employee=s indecision regarding surgery, temporary total disability benefits were properly discontinued based on maximum medical improvement.@ The employee appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@ Minn. Stat. ' 176.421, subd. 1 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@ Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, A[f]actfindings 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 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Id.
The sole issue presented to the compensation judge was whether the employer and insurer were entitled to discontinue payment of temporary total disability benefits because the employee had achieved MMI. MMI is defined under the statute as Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@ Minn. Stat. ' 176.011, subd. 25. Whether MMI has been reached is a question of ultimate fact for the compensation judge to decide. Hammer v. Mark Hagen Plumbing. & Heating Co., 435 N.W.2d 525, 528-29, 41 W.C.D. 634, 639 (Minn. 1989).
At unappealed Finding 10, the compensation judge determined that the employee had reached MMI by January 10, 2003, and that service had been effected on January 14, 2003. This finding by the judge is supported by the medical opinion of Dr. Timothy Ehlen, issued January 10, 2003, and by the judge=s memorandum, in which the judge explained that A[o]nce the initial conservative treatment ended there was no further treatment proposed, other than surgery, that was likely to provide significant and lasting improvement in the employee=s condition. The doctors here have been remarkably consistent in this regard.@
In his notice of appeal, the employee identifies the issue being raised on appeal as A[w]hether or not the Employer/Insurer sustain[ed] their burden of proof that they paid benefits under a mistake of fact after January 10, 2003.@ As we have already noted, the issue presented to the compensation judge was whether the insurer may discontinue temporary total disability benefits based on MMI, not whether benefits had been paid under a mistake of fact. Whether payments made to the employee between March 9 and June 1, 2004, were made under a mistake of fact was not an issue at the October 19, 2004, hearing. An issue raised for the first time in a party=s appellate brief is beyond the scope of the WCCA=s review. Hartman v. 3M Co., slip op. (W.C.C.A. Sept. 8, 1992). Even if we could construe the employee=s appeal as a challenge to the judge=s determination regarding MMI and discontinuance, we conclude that the judge=s decision is reasonably supported by the record and so should be affirmed in all respects. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 See Minn. Stat. ' 176.101, subd. 1(j).